Commonwealth v. Scott

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11303
COMMONWEALTH vs. ROBERT SCOTT.1
Suffolk. September 5, 2014. - December 26, 2014.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
Homicide. Evidence, Third-party culprit. Constitutional Law,
Fair trial. Due Process of Law, Fair trial. Fair Trial.
Jury and Jurors. Practice, Criminal, Capital case, Fair
trial, Argument by prosecutor, Jury and jurors,
Substitution of alternate juror, Question by jury,
Instructions to jury.
Indictment found and returned in the Superior Court
Department on December 19, 2008.
The case was tried before Peter M. Lauriat, J.
Ruth Greenberg for the defendant.
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
LENK, J. In December, 1984, a young woman was found dead,
her body badly beaten, in a vacant lot in Boston. Twenty-three
1
Also known as Sultan Omar Chezulu.
2
years later, deoxyribonucleic acid (DNA) was extracted from
samples taken from the victim's body and clothing soon after her
death and run through a national computerized database. A match
was found with the defendant's DNA. The defendant was tried for
murder in the first degree. His defense at trial was that he
had had consensual sex with the victim but had not been the
killer. The jury returned a verdict of guilty on theories of
premeditation, extreme atrocity or cruelty, and felony-murder.
The defendant appeals from his conviction.
The defendant claims that the evidence was insufficient to
support the verdict, and that other errors in the proceedings
require a new trial. These include the judge's exclusion of
evidence purported, by the defendant, to show that police had
investigated the case inadequately or that the crime might have
been committed by a third party; the prosecutor's remarks, in
his closing argument, that there had been no evidence that the
victim had engaged in "risky behavior"; and the judge's
instruction to the jury, after one original juror had been
discharged, that an alternate juror should get "up to speed"
about a question that had been posed by the jury and answered by
the judge.
Having reviewed the entire record pursuant to G. L. c. 278,
§ 33E, we discern no error requiring reversal, and no cause to
3
exercise our authority to reduce the defendant's conviction to a
lesser degree of guilt or to order a new trial.
1. Facts. We summarize the facts the jury could have
found, reserving certain details for later discussion.
In December, 1984, the victim's body was found by a
passerby in a vacant lot in Boston. She was eighteen years old.
An autopsy revealed that the victim had suffered multiple blunt
impact injuries to her head, fractures to her skull, lacerations
and contusions to her face, and fractured and loosened teeth. A
sock had been tied as a ligature around the victim's neck. She
had been alive when her injuries were inflicted.
Although the victim was identified, the case remained
unsolved for many years. After being contacted by the victim's
sister in 2006, the Boston police department reopened the case.
Police reexamined evidence collected in the original
investigation, including the victim's clothing and vaginal and
anal swabs taken from her body at the autopsy.
The vaginal and anal swabs, as well as a stain from the
victim's skirt, were found to contain sperm cells. DNA testing
was performed on those cells, and the DNA pattern found in the
cells was run through a national database.2 The database
2
Most of the information in this database, the combined DNA
index system (known as CODIS), concerns individuals who have
4
returned a match with the defendant's DNA. The likelihood that
the DNA pattern shared by the defendant and by the tested
samples would be found in a random individual was one in at
least 430 million.
The evidence reexamined by police also included a pair of
underwear found on the ground about five or six feet away from
the victim's body. DNA matching the victim's DNA was found on
the underwear. No sperm cells were detected on them.
The defendant was living and working in Boston at the time
of the victim's death. By 2008, when the case was again being
investigated, he was living in Atlanta, Georgia. Boston police
detectives traveled to Atlanta in late 2008 to arrest the
defendant. After he was arrested and brought back to Boston,
the defendant said to a detective, "I have to face the music
now."3
At trial, the theory of the defense was that the defendant
had had consensual sex with the victim prior to her death, but
that he was not her killer. The defendant sought to introduce
evidence suggesting that the victim might have been killed by
third parties or that the police investigation had been lacking.
been convicted of crimes. The nature of the database was not
revealed to the jury.
3
The defendant was also wanted on a charge of failure to
register as a sex offender, a fact not disclosed to the jury.
5
As discussed in detail infra, the judge excluded much, though
not all, of this evidence.
The victim's sister and the victim's friend and former
neighbor testified that they had never heard of the defendant
and that the victim had never been with older men or with men
who did not speak Spanish.4 The victim's sister also testified
that the victim had been at home during the nights of the week
of Christmas, 1984, including the night before the victim was
killed; and that, on the day of the killing, the victim had left
home early in the morning and had worked until 6 P.M.
A police criminologist, Kevin Kosiorek, opined that the
sperm found in the victim's body had been deposited there around
the time of her death and at the location where she was
discovered. This opinion was based, in part, on the fact that
no sperm cells were detected on the victim's underwear;
according to Kosiorek, "if somebody is up walking around, . . .
semen would be draining out of her and would be on the underwear
if she were wearing it . . . ." Kosiorek also stated that the
pattern of stains found on the victim's skirt was "consistent
with drainage if a person were laying [sic] horizontal[ly]."
4
The defendant had been thirty-six years old at the time of
the victim's death. In closing argument, the prosecutor invited
the jury to assume that the defendant did not speak Spanish; no
evidence concerning this matter was introduced, however.
6
Kosiorek provided the opinion that sperm "heads," which
were identified in this case, are usually detectible only within
"a day or maybe a little more" after sexual intercourse. In
addition, while only small quantities of sperm and seminal fluid
were collected, Kosiorek explained that the amounts collected
are not indicative of the amounts actually deposited, and that
the amounts deposited are, in any event, poor indicators of the
timing of intercourse.5
Soon after being charged, the jury submitted a note to the
judge, asking, "[C]ould the defense have independently tested
any of the physical evidence?" The judge sent back a note
stating, "Whether the defendant could seek his own testing of
any physical evidence is not a question that was addressed by
the evidence. Because you are to confine your deliberations to
the evidence presented at the trial, you should not further
consider or discuss that question."
5
The defendant's expert, Brian Wraxall, testified about a
study that had found that sperm cells can be identified "up to
about five and a half days" after sexual intercourse. Wraxall
also opined that, based on the amounts of seminal fluid and
sperm cells collected in this case, intercourse had occurred
"between . . . probably from about an hour to at least . . .
[twenty-four] hours" prior to the victim's death.
7
On the morning after the jury began deliberating, one juror
was discharged because she had failed to appear in court.6 The
discharged juror was replaced by an alternate. As discussed
more fully infra, the judge instructed the newly-constituted
jury that they were to "start [their] deliberations all over
again." The judge also stated that the question posed by the
jury on the previous day "should be shared with our new juror as
well so he is up to speed on communications that our
deliberating jury has had with the court."
On the afternoon of the same day, the jury returned a
guilty verdict, convicting the defendant of all three theories
of murder in the first degree.
2. Sufficiency of the evidence. The defendant argues that
the evidence at trial was insufficient to support the verdict.
He asserts that, although ample evidence demonstrated that he
had had sexual relations with the victim, there was no evidence
connecting him to her death.
Our inquiry is "whether, after viewing the evidence in the
light most favorable to the Commonwealth, any rational trier of
fact could have found the essential elements of the crime beyond
6
The defendant objected to the decision to discharge the
juror, noting that he "fe[lt that] this juror is favorable to
him." He does not press this objection on appeal, and we
discern no error. Another juror had been excused, with the
parties' consent, during trial, when he felt poorly and was
taken to the hospital.
8
a reasonable doubt." Commonwealth v. Woods, 466 Mass. 707, 712-
713 (2014), citing Commonwealth v. Latimore, 378 Mass. 671, 677–
678 (1979). "[T]he evidence and the inferences permitted to be
drawn therefrom must be 'of sufficient force to bring minds of
ordinary intelligence and sagacity to the persuasion of [guilt]
beyond a reasonable doubt.'" Commonwealth v. Latimore, supra at
677, quoting Commonwealth v. Cooper, 264 Mass. 368, 373 (1928)
(second alteration in original). Circumstantial evidence alone
may suffice. Commonwealth v. Woods, supra at 713, citing
Commonwealth v. Nolin, 448 Mass. 207, 215 (2007). The evidence
in this case satisfies these requirements.
As detailed, the evidence was not limited to the fact that
sperm cells matching the defendant's DNA were found in the
victim's body and on her clothing. The pattern of sperm on the
victim's skirt, and the absence of sperm on the victim's
underwear, indicated that the sperm had been deposited around
the time of the victim's death and at the location where her
body was discovered. The people closest to the victim, namely
her sister and her friend and former neighbor, testified that
they had never heard of the defendant and that the victim had
never been with older men or with men who did not speak Spanish.
The victim's sister also testified to the victim's whereabouts
on the day of her death and on the preceding nights. All of
these pieces of evidence tended to negate the possibility that
9
the defendant had had sex with the victim on some prior occasion
unrelated to her death. Finally, the defendant stated to a
police officer, after he was arrested, that he had "to face the
music now."
Minds "of ordinary intelligence and sagacity," Commonwealth
v. Cooper, 264 Mass. at 373, could find this evidence
sufficiently forceful to establish beyond a reasonable doubt
that the defendant had killed the victim deliberately, upon a
reflective decision to do so; that the killing involved the
infliction of injuries brutal both in number and in severity;
and that it was carried out in the course of the felony of
aggravated rape. The evidence was therefore sufficient to
support the verdict of guilty on all three theories of murder in
the first degree.
3. Third-party culprit evidence and Bowden evidence. As
stated, the defendant sought to present evidence suggesting, in
his view, that the victim might have been killed by third
parties, and that the police had conducted an inadequate
investigation. The focal point of this evidence was a set of
police reports found in the files of a Boston police detective,
Frank Mulvey, who had been involved in the original
investigation. Mulvey had died by the time of trial.
The most detailed police report in Mulvey's file (first
report) related the following account, provided in its entirety
10
by the victim's mother, speaking through an interpreter. In
October, 1984, police searched the apartment of one of the
victim's friends, a woman named Yvonne. Drugs and cash that
belonged to the victim's former boy friend, who was known as
Chulo,7 were hidden in an adjacent apartment, and police did not
find them. The victim and Yvonne falsely told Chulo that the
drugs and the cash had been confiscated. Yvonne used the money
to buy a car. Chulo subsequently threatened the victim at
gunpoint, and she "told him the whole story." Chulo set the car
bought by Yvonne on fire. The first report also included
another, apparently unrelated piece of information provided by
the victim's mother: the mother reportedly stated that the
victim had told her, shortly before her death, that she "had
been present in [the Jamaica Plain section of Boston] when [an
African-American] guy had been shot in the head."
Two other police reports contained in Mulvey's file were
far less informative. According to one (second report), a
police sergeant had received "information [that Yvonne] had some
Dominicans do [the victim] because she thought that she ratted
on a drug deal." According to the other (third report), police
officers had relayed "info[rmation] they heard on [the] street"
7
To protect the privacy of the victim, we refer to Yvonne
by her first name and to Chulo by his nickname. See G. L.
c. 265, § 24C.
11
that police should "look into" Chulo, who was "not carrying a
full load."8
The judge did not permit the defendant to enter these
police reports in evidence, stating that "[t]here's no indicia
sufficient . . . for the court to determine [their]
reliability." The judge also excluded certain questions that
defense counsel wished to ask witnesses about the reports.
Specifically, counsel was not permitted to ask Yvonne's sister
whether Yvonne had been involved with drugs; and in his cross-
examination of the police detective who had reopened the
investigation, Juan Torres, counsel was not permitted to discuss
the substance of the police reports. In addition, the judge
denied the defendant's request for a jury instruction concerning
alleged inadequacies in the police investigation, although the
defendant was permitted to make arguments about this matter in
closing.9
8
Defense counsel also asserted at a hearing that police had
been told that another acquaintance of the victim had called the
victim's workplace on the day after she died, before her body
had been discovered, to say that the victim would not arrive at
work that day. The evidence supporting this assertion was not
included in the defendant's proffer of third-party culprit
evidence or Bowden evidence. See Commonwealth v. Bowden, 379
Mass. 472 (1980).
9
The defendant preserved an objection to the judge's
decision to refrain from giving an instruction about the alleged
inadequacy of the police investigation. He does not press this
objection on appeal, and "[t]here was no error because the
12
The defendant argues that the police reports, as well as
testimony that might have been elicited by the excluded lines of
questioning, should have been admitted both as evidence of
third-party culprits and as evidence of an inadequate
investigation under Commonwealth v. Bowden, 379 Mass. 472
(1980). Because the defendant preserved his objections to the
judge's rulings on these issues, we review for prejudicial
error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
a. Third-party culprit evidence. "A defendant may
introduce evidence that tends to show that another person
committed the crime or had the motive, intent, and opportunity
to commit it." Commonwealth v. Silva-Santiago, 453 Mass. 782,
800 (2009) (Silva-Santiago), quoting Commonwealth v. Lawrence,
404 Mass. 378, 387 (1989). We have "given wide latitude to the
admission of relevant evidence that a person other than the
defendant may have committed the crime charged. 'If the
evidence is "of substantial probative value, and will not tend
to prejudice or confuse, all doubt should be resolved in favor
of admissibility."'" Id. at 800-801, quoting Commonwealth v.
Conkey, 443 Mass. 60, 66 (2004). See Commonwealth v. Rosa, 422
giving of such an instruction is never required." Commonwealth
v. Williams, 439 Mass. 678, 687 (2003).
13
Mass. 18, 23 (1996), quoting Commonwealth v. Keizer, 377 Mass.
264, 267 (1979).
We have imposed two types of restrictions on the admission
of third-party culprit evidence, recognizing that "feeble third-
party culprit evidence . . . inevitably diverts jurors'
attention away from the defendant on trial and onto the third
party, and essentially requires the Commonwealth to prove beyond
a reasonable doubt that the third-party culprit did not commit
the crime." Silva-Santiago, supra at 801. First, in order to
be admitted, third-party culprit evidence "must have a rational
tendency to prove the issue the defense raises, and [it] cannot
be too remote or speculative." Id., quoting Commonwealth v.
Rosa, 422 Mass. at 22. In addition, third-party culprit
evidence is often hearsay, namely out-of-court statements
"offered for the truth of the matter asserted -- that a third
party is the true culprit." Silva-Santiago, supra at 801. Such
evidence may be admitted "only if, in the judge's discretion,
'the evidence is otherwise relevant, will not tend to prejudice
or confuse the jury, and there are other "substantial connecting
links" to the crime.'" Id., quoting Commonwealth v. Rice, 441
Mass. 291, 305 (2004). See Mass. G. Evid. § 1105 (2014).
The opportunity to present third-party culprit evidence is
of "constitutional dimension," Silva-Santiago, supra at 804
n.26, because it is rooted in the right of criminal defendants
14
to "a meaningful opportunity to present a complete defense."
Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting California
v. Trombetta, 467 U.S. 479, 485 (1984). See art. 12 of the
Massachusetts Declaration of Rights. Accordingly, we examine a
judge's decision to exclude third-party culprit evidence
"independently," Silva-Santiago, supra at 804 n.26, under "a
standard higher than that of abuse of discretion," Commonwealth
v. Conkey, 443 Mass. at 67 n.14.
Examining the exclusion of the proffered third-party
culprit evidence independently, we are satisfied that there was
no error. To begin with, even had it not been hearsay, the
evidence offered by the defendant was "remote" and
"speculative." Silva-Santiago, supra at 801. In other words,
for the following reasons, this evidence was limited in both
reliability and relevance.
The second report and the third report were patently
unreliable. The information in these reports was vague; the
second report relayed unspecified "information" that Yvonne "had
some Dominicans do" the victim, and all that the third report
suggested was that police "should look into" Chulo, who was "not
carrying a full load." In addition, the basis for the vague
information in these reports was unclear: the second report was
written as a result of a telephone call from a police sergeant
who said he "ha[d] information," without specifying the source
15
of it; and the information in the third report was "heard on
[the] street."
The first report, which originated from an interview with
the victim's mother, was more detailed. However, the basis of
the mother's information was specified only as far as the
statement that the victim had witnessed an unidentified African-
American man being shot in Jamaica Plain; the mother reportedly
had heard of this incident from the victim herself. The first
report did not explain how the mother had learned that the
victim and Yvonne had stolen drugs from Chulo, that Chulo had
subsequently threatened the victim with a gun, or that he had
burnt Yvonne's car.
Moreover, the judge permitted the defendant to conduct a
voir dire of the mother during trial.10 The mother testified at
voir dire that she did not remember "anything" about speaking to
police after her daughter's death, and that she did not remember
her daughter telling her about stealing drugs from Chulo, being
threatened at gunpoint, or seeing an African-American man shot
in Jamaica Plain. Instead of illuminating the first report, the
voir dire of the mother thus rendered that report even more
enigmatic.
10
The victim's mother did not testify before the jury.
16
The first report also was not probative of the crux of a
third-party culprit defense, namely "that another person
committed the crime or had the motive, intent, and opportunity
to commit it." Silva-Santiago, supra at 800, quoting
Commonwealth v. Lawrence, 404 Mass. at 387. The report implied
that Yvonne, Chulo, or both might have believed that the victim
had wronged them. It would be a stretch to say that such
beliefs amounted to a "motive" for murder, particularly since
the first report did not reveal when exactly Chulo was said to
have threatened the victim or to have burnt Yvonne's car. In
any event, the first report provides no indication that either
Yvonne or Chulo had an intent or an opportunity to kill the
victim, or that they did, in fact, commit the crime. Id.
"Evidence of a third party's ill will or possible motive is
insufficient alone to support a defense under the third-party
culprit doctrine." Commonwealth v. Wright, 469 Mass. 447, 466
(2014), citing Commonwealth v. Mandeville, 386 Mass. 393, 398
(1982). See Commonwealth v. Wood, 469 Mass. 266, 275-276
(2014); Commonwealth v. Bizanowicz, 459 Mass. 400, 418-419
(2011).
Thus, it would have been permissible for the judge to
conclude that the evidence proffered by the defendant was "too
remote or speculative" to be admitted, even if it had not been
17
hearsay. See Silva-Santiago, supra at 801, quoting Commonwealth
v. Rosa, 422 Mass. at 22.
Moreover, as hearsay, both the police reports and the
questioning about them were admissible as third-party culprit
evidence "only if, in the judge's discretion, 'the evidence is
otherwise relevant, will not tend to prejudice or confuse the
jury, and there are other "substantial connecting links" to the
crime.'" Id., quoting Commonwealth v. Rice, 441 Mass. at 305.
For reasons similar to those previously discussed, the evidence
offered in this case did not satisfy these requirements.
The defendant identified no "connecting links" between
Yvonne or Chulo and the crime itself, in terms of actual intent
to harm the victim, geographical or chronological proximity to
the crime scene, or the like. Even the first police report, the
most informative of the three, suggested only a speculative and
uncorroborated potential motive for the murder. The evidence
proffered by the defendant also did not satisfy the requirement
of "not tend[ing] to prejudice or confuse the jury." Silva-
Santiago, supra at 801. The defendant wished to share with the
jury police officers' notes about vague information from unclear
sources. This evidence would have invited the jury to mistake
the memorialization of uncorroborated leads for known facts
about events preceding the murder. Cf. Commonwealth v.
Mandeville, 386 Mass. at 398-399 (statement suggesting that
18
victim's estranged husband suspected third party would have
tended to mislead jury because it had no tendency to prove that
third party actually was murderer). It would have tended, like
all third-party culprit evidence, to "divert[] jurors' attention
away from the defendant on trial and onto the third party."
Silva-Santiago, supra. No less problematically, it would have
posed a risk of drawing the jury into an evaluation, irrelevant
under the circumstances, of the victim's lifestyle and
character. See Commonwealth v. Benjamin, 430 Mass. 673, 678
(2000) (generally, "evidence of a victim's character is not
admissible in a criminal case"). We conclude, therefore, that
the judge's exclusion of the evidence proffered by the defendant
as third-party culprit evidence was not error.
b. Bowden evidence. Evidence also may be admissible to
show "[t]he failure of the authorities to conduct certain tests
or produce certain evidence," because "[t]he fact that certain
tests were not conducted or certain police procedures not
followed could raise a reasonable doubt as to the defendant's
guilt in the minds of the jurors." Commonwealth v. Bowden, 379
Mass. at 485-486 (citations omitted). "[F]ailure of the police
to investigate leads concerning another suspect is sufficient
grounds for a Bowden defense." Silva-Santiago, supra at 802,
citing Commonwealth v. Phinney, 446 Mass. 155, 166 (2006). See
Mass. G. Evid. § 1107 (2014).
19
Bowden evidence generally is "offered not to show the truth
of the matter asserted, but simply to show that the information
was provided to the police." Silva-Santiago, supra at 802. See
Commonwealth v. Reynolds, 429 Mass. 388, 391 (1999). Such
evidence, therefore, is not subject to the limitations
applicable to hearsay third-party culprit evidence. In order
for Bowden evidence to be admitted, however, the judge must
"conduct a voir dire hearing to determine whether the third-
party culprit information had been furnished to the police, and
whether the probative weight of the Bowden evidence exceeded the
risk of unfair prejudice to the Commonwealth from diverting the
jury's attention to collateral matters." Silva-Santiago, supra
at 803. Cf. Commonwealth v. Pytou Heang, 458 Mass. 827, 851-852
(2011) (relevant evidence in general should be excluded if its
"probative value [is] substantially outweighed by the danger of
unfair prejudice or the risk of misleading the jury"); Mass. G.
Evid. § 403 (2014). The exclusion of proffered Bowden evidence
is reviewed under an abuse of discretion standard. See Silva-
Santiago, supra at 804; Commonwealth v. Mayfield, 398 Mass. 615,
629 (1986).
The same police reports offered by the defendant as third-
party culprit evidence, and the same attendant lines of
questioning, were also offered as Bowden evidence. Because this
evidence came from police records, it was not necessary for the
20
judge to conduct a voir dire hearing to determine whether the
information had been furnished to the police. Silva-Santiago,
supra at 803. The judge excluded the proffered Bowden evidence
after considering the arguments of counsel; such evidence was
only to be admitted if its probative weight "exceeded the risk
of unfair prejudice to the Commonwealth from diverting the
jury's attention to collateral matters." Id. For the reasons
we discuss, we discern no abuse of discretion in its exclusion.
First, the evidence proffered was of limited probative
value. The police reports from Mulvey's file pointed to
investigative leads that police had received in the course of
the original investigation, twenty-five years earlier. The file
did not detail the manner in which police had investigated these
leads. Mulvey, who had died, could not describe the course that
the original investigation had run. The defendant also did not
offer any additional evidence on this matter. Thus, the
evidence proffered was relevant primarily in that it would have
enabled the jury to surmise that police had failed, in early
1985, "to investigate leads concerning another suspect," Silva-
Santiago, supra at 802, given that Mulvey's file memorialized
the leads but not any follow-up to them. This inference, while
perhaps permissible, would have represented weak support for a
Bowden defense.
21
The excluded evidence also could have shed light on the
adequacy of the police's reexamination of the original leads
after the investigation was revived. This matter was, however,
probed with some vigor in the defendant's cross-examination of
Torres, the detective who reopened the investigation. As
mentioned, the judge ruled that the substance of the reports
found in Mulvey's file could not be revealed; but he permitted
defense counsel to note in his questioning that certain named
individuals, including Yvonne and Chulo, were identified in the
file, and to ask Torres whether these individuals had been
investigated further in the course of the reopened
investigation. The Commonwealth's redirect examination revealed
that police had spoken to Yvonne after reopening the case, had
arranged for her to testify before the grand jury, and had
learned that Chulo had been deported by the time the
investigation had been reopened.11 The excluded evidence would
thus have made only a limited contribution to a Bowden defense
focused on the more recent police investigation; while this
evidence could have informed the jury's assessment of the
11
Detective Juan Torres also testified that the
acquaintance of the victim who had reportedly called her
workplace on the day after she was killed had died by the time
of the renewed investigation.
22
police's renewed efforts, those efforts were themselves revealed
at trial.
Moreover, as discussed, the information in the police
reports was largely from unidentified origins, and much of it
was vague. Consequently, even if the jury were to believe that
police had failed to pursue certain avenues of investigation
effectively, either initially or after reopening the case, this
failure would only weakly have suggested that a third party had
committed the crime. In other words, it was unlikely that the
shortfalls of the investigation suggested by the proffered
evidence "could raise a reasonable doubt as to the defendant's
guilt in the minds of the jurors." See Commonwealth v. Bowden,
379 Mass. at 486.12
On the other side of the scale, the defendant's Bowden
evidence posed a risk, as discussed earlier, of confusing the
jury, and of diverting its attention to collateral questions,
primarily conjecture concerning the nature of the original
investigation. It would also have opened the door to
speculation, immaterial here, about the victim's lifestyle and
character.
12
In addition, the voir dire of the victim's mother
suggested that it would have been difficult for police to
collect additional information about the events detailed in the
first police report.
23
Also relevant to our analysis is the fact that the judge
did allow the defendant to pursue a number of lines of
questioning and argument in support of a Bowden defense. See
Commonwealth v. Bizanowicz, 459 Mass. at 417, citing
Commonwealth v. Ridge, 455 Mass. 307, 316 (2009). As noted,
defense counsel was permitted to ask Torres whether police had
revisited various investigative avenues, including avenues based
on Mulvey's file. He was also allowed to argue, in closing,
that the collection and retention of evidence from the crime
scene had been careless, and that hairs collected at the crime
scene, as well as the sock tied around the victim's neck, could
have been tested for DNA but were not.
In the circumstances, while the judge might well have
admitted more of the proffered Bowden evidence, we discern no
abuse of discretion in his decision otherwise.
c. Constitutional claim. As noted, the opportunity to
present third-party culprit evidence "is of constitutional
dimension." Silva-Santiago, supra at 804 n.26. This
constitutional dimension stems from the right, guaranteed by the
United States Constitution, to "a meaningful opportunity to
present a complete defense." Crane v. Kentucky, 476 U.S. at
690, quoting California v. Trombetta, 467 U.S. at 485.
Similarly, but more broadly, art. 12 of the Massachusetts
Declaration of Rights provides that "every subject shall have a
24
right to produce all proofs, that may be favourable to him."
The defendant argues that if the Massachusetts doctrine
concerning third-party culprit evidence permitted the judge to
exclude the evidence proffered in this case, then that doctrine
is consequently unconstitutional. This argument is unavailing.
The United States Supreme Court has held that the right to
present a defense is "abridged by evidence rules that
'infring[e] upon a weighty interest of the accused' and are
'arbitrary' or 'disproportionate to the purposes they are
designed to serve.'" Holmes v. South Carolina, 547 U.S. 319,
324-325 (2006), quoting United States v. Scheffer, 523 U.S. 303,
308 (1998) (alteration in original). Our jurisprudence
concerning the circumstances in which third-party culprit
evidence may be excluded is consistent with these strictures.
See Commonwealth v. Smith, 461 Mass. 438, 446-447 (2012);
Commonwealth v. Ruell, 459 Mass. 126, 131-133 (2011). We have
permitted the exclusion of such evidence in view of concerns
with limited probative value, unfair prejudice, confusion of the
issues, and misleading the jury. See Silva-Santiago, supra at
801. The Court in Holmes v. South Carolina, 547 U.S. at 326,
recognized that these considerations are not "arbitrary,"
stating that "well-established rules of evidence permit trial
judges to exclude evidence if its probative value is outweighed
by certain other factors such as unfair prejudice, confusion of
25
the issues, or potential to mislead the jury." More
specifically, the Court quoted a "widely accepted" rule that,
while the "accused may introduce any legal evidence tending to
prove that another person may have committed the crime with
which the defendant is charged," such evidence "may be excluded
where it does not sufficiently connect the other person to the
crime, as, for example, where the evidence is speculative or
remote." Id. at 327, quoting 40A Am. Jur. 2d, Homicide § 286,
at 136–138 (1999).
The standards we have described here and in prior cases are
thus not "arbitrary." They also are not "disproportionate to
the purposes they are designed to serve," Holmes v. South
Carolina, 547 U.S. at 324-325, quoting United States v.
Scheffer, 532 U.S. at 308, particularly given our insistence
that all doubts concerning evidence "of substantial probative
value" that "will not tend to prejudice or confuse . . . should
be resolved in favor of admissibility," see Silva-Santiago,
supra at 801, quoting Commonwealth v. Conkey, 443 Mass. at 66.
There was no error.
4. Prosecutor's closing argument. The defendant argues
that certain statements in the prosecutor's closing argument
were improper. He focuses on the fact that, after successfully
requesting that the judge exclude the defendant's proffered
third-party culprit evidence, the prosecutor pointed out that no
26
evidence of that type had been presented. Because the defendant
did not object to the prosecutor's argument, we review for a
substantial likelihood of a miscarriage of justice.
We have held that:
"Counsel may not, in closing, 'exploit[] the absence of
evidence that had been excluded at his request.' Such
exploitation of absent, excluded evidence is 'fundamentally
unfair' and 'reprehensible.' '[A] party's success in
excluding evidence from the consideration of the jury does
not later give that party license to invite
inferences . . . regarding the excluded evidence.'"
Commonwealth v. Harris, 443 Mass. 714, 732 (2005), quoting
Commonwealth v. Carroll, 439 Mass. 547, 555 (2003), Commonwealth
v. Haraldstad, 16 Mass. App. Ct. 565, 568 (1983), and
Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 9 (1980)
(alterations in original). Here, a number of the prosecutor's
remarks invited precisely such a prohibited inference, and
should not have been made. The prosecutor argued:
"There's nothing about [the victim's] life that would
give anybody who knew her a motive to kill her. It is a
rape/murder by a stranger.
"You know from her life she's a regular [eighteen]
year old living a regular [eighteen] year old's life. She
was not making risky choices. She does not have risky
friends. She is not engaging in risky behavior. . . .
"So when she walked that night . . . , she was walking
as an innocent young woman. A woman without enemies. A
woman without people who would have a motive to kill her.
A woman who had done nothing herself to cause this."
These comments, and especially the prosecutor's statements
that the victim "was not making risky choices" and was "not
27
engaging in risky behavior," would not have seemed plausible had
the defendant's proffered third-party culprit and Bowden
evidence been admitted. In this sense, the prosecutor's
argument "exploit[ed] the absence of evidence that had been
excluded at his request." See Commonwealth v. Harris, supra,
quoting Commonwealth v. Carroll, supra.
We conclude, however, that there is no substantial
likelihood that a miscarriage of justice occurred. In
Commonwealth v. Harris, supra, we stated:
"In determining whether an error in closing argument
requires reversal, we consider whether defense counsel made
a timely objection; whether the judge's instructions
mitigated the error; whether the error was central to the
issues at trial or concerned only collateral matters;
whether the jury would be able to sort out any excessive
claims or hyperbole; and whether the Commonwealth's case
was so strong that the error would cause no prejudice."
Consideration of these factors, and particularly the degree to
which the error was "central to the issues at trial" and the
strength of the Commonwealth's case, leads us to conclude that
reversal is not required. First, the prosecutor's remarks
concerning the victim's lack of "risky behavior" were not a key
element of his closing argument. Unlike the prosecutor in
Commonwealth v. Haraldstad, 16 Mass. App. Ct. at 568, the
prosecutor here did not extensively "mine[] th[e] vein" created
by the excluded testimony. His argument focused on the evidence
that the defendant's sperm was found in the victim's body and on
28
her clothing; that the pattern of the sperm indicated, according
to the Commonwealth's expert, that it had been deposited
approximately when and where the victim had died; and that,
according to the individuals closest to the victim, she had
never been with older men or with men who did not speak Spanish.
The prosecutor also devoted much of his argument to countering
the defendant's efforts to minimize the prosecution's case, and
to recounting the brutality of the murder.
In addition, the jury heard some evidence that tended to
support the prosecutor's characterization of the victim's past.
The victim's sister testified that the victim did not go out
often, at least with her; and a friend of the victim testified
that the victim "seemed to take care of herself. She used to
dress like any young girl, you know, and she used to be clean.
She used to keep to herself, I think."
In the circumstances, the prosecutor's misguided remarks
did not undermine the fundamental fairness of the trial. "[W]e
are substantially confident that, if the error had not been
made, the jury verdict would have been the same." Commonwealth
v. Ruddock, 428 Mass. 288, 292 n.3 (1998). We leave that
verdict undisturbed.13
13
In his reply brief, the defendant suggests that the
prosecutor's closing argument mocked the defendant's name and
29
5. Instructions to the alternate juror. The defendant
argues that the judge erred in his instructions to the
reconstituted jury, after an original deliberating juror had
been discharged, concerning the question posed by the original
jury and the judge's answer to it. The defendant argues that
the judge's instruction undercut his directive that the
reconstituted jury must begin its deliberations anew. Although
the defendant did not object to the instruction at trial, he now
contends that it amounted to a structural error that requires
reversal without a showing of prejudice. See Commonwealth v.
Smith, 403 Mass. 489, 493 (1988).
"If a judge determines that the substitution of an
alternate juror is appropriate, then the judge . . . must
instruct the jury to disregard all prior deliberations and begin
its deliberations again." Commonwealth v. Haywood, 377 Mass.
755, 770 (1979). See Commonwealth v. Carnes, 457 Mass. 812, 829
(2010); Commonwealth v. Smith, 403 Mass. at 492. The judge
provided such instructions in this case, stating:
"[O]nce we have a new deliberating juror . . . you
must start your deliberations all over again. I appreciate
you have not been deliberating for long, but you must start
anew because you now constitute a new jury of twelve
deliberating jurors. And you must all start from the
appealed to racial prejudice. We see no support for these
contentions in the record.
30
beginning so that everyone can hear and share and discuss
this case anew. . . .
"[L]et me repeat, ladies and gentlemen of the new
deliberating jury, you are to start your deliberations
anew, afresh, start over again."14
These emphatic instructions were not undermined by the judge's
discussion of the question that had been asked by the original
jury and answered on the previous day. The judge said:
"[T]here was a note that was given to me by the
deliberating jury with a question. I answered that
question. The note and the question are with the jury and
should be shared with our new juror as well so he is up to
speed on communications that our deliberating jury has had
with the court."
Contrary to the defendant's characterizations of these
statements, the judge did not instruct the jury to broach any
previous discussions with the new juror. Rather, he directed
that the jury's written question, and presumably the judge's
written response, be "shared" with the new juror. This
directive was proper. The judge's written answer to the jury's
question was, in essence, an addendum to the instructions that
14
In addition, before determining which jurors would serve
as alternates, the judge stated: "If during the course of the
jury's deliberations a deliberating [juror] for good and
sufficient reason is excused by the court, then . . . one of the
alternates will be drawn at random to replace that deliberating
juror and the jury[,] which will now constitute [a] new group of
[twelve] individuals[,] will be instructed to begin its
deliberations all over again in order that the new juror be a
full participant and listen to and be able to speak about the
evidence in this case."
31
the judge had given in the presence of all the jurors, before
the alternates were selected and before the jury began to
deliberate. It was appropriate that the new juror be provided
with this additional instruction, just as it would have been
appropriate for the alternate jurors to be present had the judge
answered the jury's question in open court rather than by means
of a note. No reasonable jurors would have read into the
judge's instruction permission to share prior deliberations with
the new juror, or to continue the original jury's deliberations
instead of beginning anew.15
6. Review pursuant to G. L. c. 278, §§ 33E. We have
reviewed the entire record and conclude that there is no basis
to exercise our authority pursuant to G. L. c. 278, § 33E, to
reduce the verdict of murder in the first degree or to order a
new trial.
Judgment affirmed.
15
Because there was no error, we do not reach the question
whether failure to comply with Commonwealth v. Haywood, 377
Mass. 755 (1979), could, in some circumstances, represent
structural error.