Commonwealth v. Scesny

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SJC-11627
COMMONWEALTH vs. ALEX SCESNY.
Worcester. March 6, 2015. - July 14, 2015.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
Homicide. Rape. Evidence, Expert opinion, Photograph,
Relevancy and materiality, Identification, Third-party
culprit. Witness, Expert. Constitutional Law,
Confrontation of witnesses. Practice, Criminal, Capital
case, Confrontation of witnesses, Argument by prosecutor,
Instructions to jury.
Indictments found and returned in the Superior Court
Department on September 12, 2008.
The cases were tried before Richard T. Tucker, J.
Kenneth I. Seiger for the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
BOTSFORD, J. In October of 1996 passersby discovered the
body of a woman, Theresa Stone (victim), by the side of a road
in Fitchburg. Sixteen years later, in March of 2012, a
Worcester County jury convicted the defendant, Alex Scesny, of
2
murder in the first degree and aggravated rape in connection
with her death.1 Before us is the defendant's appeal from these
convictions. The defendant argues that (1) the evidence was
insufficient to support the convictions; (2) the trial judge
erred in admitting opinion testimony of a criminalist employed
by the Commonwealth because the witness was not qualified to
render the opinion stated; (3) the admission of an autopsy
report prepared by a medical examiner who did not testify at
trial, and of testimony of a substitute medical examiner,
violated the defendant's constitutional right to confront
witnesses; (4) it also was error to admit a witness's testimony,
based on her examination of a photograph that itself should not
have been admitted, that she recognized the defendant as one who
had patronized a bar in which the victim was seen on the night
of her death; (5) the prosecutor's closing argument was
improper, impinging on the defendant's fundamental right to
present a defense; and (6) the judge erred in declining to
instruct the jury in accordance with the defendant's proposed
instruction on third-party culprit evidence. We conclude that
the evidence was insufficient to convict the defendant of
aggravated rape, and reverse his conviction of this crime. We
1
The jury found the defendant guilty of murder in the first
degree under all three theories: deliberate premeditation,
extreme atrocity or cruelty, and felony-murder.
3
affirm the defendant's conviction of murder in the first degree.2
Background. 1. Facts. The defendant challenges the
sufficiency of the evidence, and therefore we summarize the
facts the jury could have found in the light most favorable to
the Commonwealth. Commonwealth v. Earle, 458 Mass. 341, 342
(2010). We reserve certain facts for later discussion in
connection with other issues raised.
On October 23, 1996, the victim and her daughter, Nashea
Falcon,3 spent the day running errands together and returned in
the afternoon to the apartment where they were living in
Fitchburg. At approximately 7 P.M. that evening, the victim
left the apartment to buy some groceries for dinner. Shortly
thereafter, she visited the Brau-Hoff, a bar on Main Street in
Fitchburg. She arrived alone, stayed for about an hour or more,
and talked to the bartender, Jessie Spencer. The victim left
the bar alone and subsequently returned to the apartment with
groceries. She told Nashea that she had received a ride home
2
The reversal of the defendant's conviction of aggravated
rape means the jury's determination that the defendant was
guilty of felony-murder in the first degree cannot stand.
Because the jury also found the defendant guilty under the other
two theories of murder, however, and because we discern no error
affecting those findings, the defendant's conviction of first
degree murder is affirmed.
3
Nashea Falcon was formerly known as Nashea Stone. By the
time of the trial in 2012, she had married Efrain Falcon, her
boy friend at the time of the victim's death in 1996. We refer
to her by her first name, Nashea, to avoid any confusion.
4
from a man in a black truck who was waiting for her outside, but
that she did not want to go with him. Sometime between 9:30 and
10:30 P.M., the victim left the apartment again and told Nashea
she was going to "Work-a-Day," a temporary employment agency.4
That was the last time Nashea saw the victim alive.
On October 25, 1996, responding to a telephone call
regarding a body by the side of a road in Fitchburg, the police
observed a white female lying on her left side with her face
down on the ground, her pants and underwear pulled down to her
knees, and her knees, thighs, buttocks, and lower abdominal area
exposed. There was a light coating of leaves over the body, and
its lividity appeared consistent with the position in which it
was found. Police discovered what appeared to be a condom
wrapper underneath or in the vicinity of the body. The body was
identified as the victim's through fingerprint analysis. The
cause of death was strangulation by ligature. The autopsy
revealed that two of the victim's teeth had been broken off,
that she had blood in her mouth, and that there were injuries to
her eyelids, nose, neck, left shoulder, right clavicular region,
right arm, right metacarpal, and right thigh.
During trial, the Commonwealth and the defendant stipulated
4
According to Nashea, the victim had worked as a prostitute
in the past, and when the victim left the apartment at
approximately 9:30 P.M. on October 23, 1996, it would not have
surprised her (Nashea) if the victim was "going to make some
money that night."
5
to the following:
"After [the victim's] body was discovered on Kinsman
Road on October 25, 1996, blood samples and vaginal and
anal swabs were taken as evidence. This material was sent
to the Mass[achusetts] State Police crime [laboratory] for
[deoxyribonucleic acid (DNA)] testing. These tests
generated DNA profiles, which were made part of a DNA
database. In 2008, for reasons completely unrelated to the
investigation of [the victim's] death, [the defendant's]
DNA profile was entered into that system. Sometime after
that, a link was believed to be established between [the
defendant's] DNA profile and biological evidence taken from
[the victim]. At a later date, [the defendant] provided
another DNA sample for further comparison purposes."5
The rectal swab taken from the victim contained sperm cells, and
the DNA profile generated from the sperm matched the DNA profile
for the defendant.6 The probability of a randomly selected,
unrelated individual having a DNA profile matching the major
profile obtained from the rectal swab was one in 13.2
quadrillion of the Caucasian population.7
Upon examination of the victim's body, a number of small,
red-brown stains were noted on the victim's exposed skin and
5
The trial judge read this stipulation to the jury during
the trial.
6
The rectal swab generated two deoxyribonucleic acid (DNA)
profiles, a sperm fraction and a nonsperm fraction. The profile
generated for the sperm fraction was a mixture of DNA, meaning
that more than one person contributed DNA to that fraction. The
major profile for that fraction matched the DNA profile for the
defendant. The minor profile for the sperm fraction contained
some cellular material "carr[ied] over" from the nonsperm
fraction, and it was consistent with the victim's DNA.
7
The defendant is Caucasian.
6
clothing. A screening test for the presence of blood was
performed on stains from the victim's lower pant leg and
sneaker, as well as her right hip and right thigh-left knee
area. The stains tested positive indicating that blood may be
present. The stain on the thigh-knee area was submitted for
further testing and a confirmatory test for human blood was also
positive.8
DNA profiles generated from the stains on the sneaker, hip,
and thigh-knee area indicated a mixture of DNA from more than
one source. The defendant matched the major profile in the DNA
mixture on the hip. The probability of a randomly selected
unrelated individual having a DNA profile matching this stain
was approximately one in 1.366 billion of the Caucasian
population. The defendant also was included as a potential
contributor to the DNA mixtures on the sneaker and thigh-knee
area. The probability of a randomly selected unrelated
individual having contributed DNA to the mixture was
approximately one in sixty-one of the Caucasian population for
each of these two stains.
Male-specific DNA testing also was performed on three areas
of the victim's underwear. In the first area, a partial male
DNA profile was generated that matched the defendant's; the
8
The other stains were too small for confirmatory testing.
7
probability that a randomly selected individual would match the
profile was one in two of the male population. In the second
area tested, a partial male DNA profile was generated that did
not match the defendant's profile. In the third area tested, no
male DNA was found. A screening test for the presence of blood
on three red-brown stains found on the underwear was positive.9
No seminal fluid was found to be present on the victim's
underwear, which suggested that the victim had not pulled up her
underwear and pants after the semen in her rectum had been
deposited.10
Some of the red-brown bloodstains11 on the victim's body and
9
A screening test for blood on a fourth red-brown stain on
the underwear was negative.
10
Debra McKillop, a criminalist who had been employed by
the Commonwealth at the time of the victim's death, testified
that if a liquid such as seminal fluid is deposited in an
orifice, such as the vaginal, anal, or other cavity, it is a
common occurrence, when cloth or other material is placed over
the orifice, that liquid will be absorbed into the material; and
that if the victim had pulled up her underwear and pants
following deposit of semen or sperm in her rectum, some drainage
or transference onto her underwear could be expected. Doctor
Henry Nields, a physician and the substitute medical examiner,
however, testified that drainage of seminal fluid from the anal
opening onto underwear after anal sex may or may not be present.
The defendant challenges the admission of McKillop's opinion
testimony on the ground that she was not professionally
qualified to give it. The defendant's argument is discussed
infra.
11
As suggested in the text, the evidence concerning the
red-brown stains would permit the jury to find that they were
bloodstains and, in particular, the defendant's bloodstains.
8
clothing appeared to have been deposited at an angle, suggesting
that the blood causing the stains had hit the victim's body at
an angle and that some type of action or force had been
involved. The stains on the victim's skin did not appear to be
disturbed, meaning they had been deposited on the body and had
dried in the condition in which the investigating police and
criminalists found them. The stains' appearance again suggested
that the victim had not pulled up her pants after the stains
were deposited.12
Jessie Spencer worked as a bartender at the Brau-Hoff bar
in Fitchburg on the night of October 23, 1996, the night of the
victim's disappearance. In 2008, police showed Spencer several
photographs and asked her whether she recognized any of the
persons depicted in them as customers of the bar. She was shown
a photograph of the defendant and was "pretty certain" she
recognized him. Over-all, four of the six photographs she was
shown were of men she recognized from the bar.
The defense conceded at trial that the defendant had had
sexual intercourse with the victim, but argued that the
12
Testimony was presented indicating that if the stains had
been wet when deposited on the victim, and the victim
subsequently had pulled up her pants, some sort of interruption
or disturbance of the stain would be expected. If the stains on
the victim's body had been dry and the victim then pulled up her
pants, any friction or contact with the clothing could have
dislodged the stain causing it to fall free from the skin.
9
intercourse was consensual. He stressed that the stains on the
victim's hip, knee, and sneaker contained a mixture of DNA from
more than one person,13 and argued that any potential
contribution by him to the DNA in the stains was not necessarily
blood, but could have been some other bodily substance
transferred onto the victim's body during their sexual
encounter.
The defendant also presented evidence at trial suggesting
that two other men may have been responsible for the victim's
death: Everett Carlson and James Webber, who was the victim's
former husband and father of Nashea. Both men were excluded as
sources of the sperm on the rectal swab taken from the victim,
as well as the DNA mixture in the stains on the victim's sneaker
and right thigh-left knee; the major male DNA profile in the
stain on the victim's right hip also did not match either man.14
Webber was excluded as a source of the partial male DNA profile
generated from the stains on the first area tested from the
victim's underwear, but Carlson was included, meaning his DNA
profile matched the partial male DNA profile identified in that
13
The victim was included as a potential contributor to the
DNA mixture on the sneaker; the DNA mixtures from the hip and
knee yielded inconclusive results with respect to the victim.
14
The minor profile yielded inconclusive or insufficient
results for comparison.
10
area of the underwear.15 Both Webber and Carlson were excluded
as sources of the male DNA detected in the second area tested
from the victim's underwear.16
2. Procedural history. In 2008, the defendant was
indicted for the murder and aggravated rape of the victim. As
indicated, in March of 2012 a jury convicted the defendant of
murder in the first degree on the theories of deliberate
premeditation, extreme atrocity or cruelty, and felony-murder;
he also was convicted of aggravated rape. The defendant filed a
timely appeal of his convictions, which we consider here.
Discussion. 1. Sufficiency of the evidence. The
defendant claims there was insufficient evidence to prove that
he was the perpetrator of the victim's murder and that he
committed aggravated rape. He does not dispute that the DNA
from the rectal swab taken from the victim established that he
had intercourse with her, but asserts there was no evidence to
prove that the sexual interaction was not consensual. He also
contends that the additional forensic evidence was ambiguous,
15
The probability that a randomly selected individual would
match the partial male profile identified was one in two of the
male population; as previously indicated, the defendant's DNA
was also included as a possible source.
16
The defendant was excluded as a possible source of the
male DNA detected in this area as well, indicating that a male
other than the defendant, Carlson, or Webber contributed this
stain.
11
inconclusive, speculative, and ultimately insufficient to prove
that he murdered the victim;17 and that apart from this forensic
evidence, the Commonwealth provided no evidence connecting him
to the scene or to the murder. To support this argument, he
notes the evidence that the victim was a prostitute and
therefore had consensual sex with men, and further that the
autopsy report revealed the victim's external genitalia and anus
were normal -- that is, without any sign of injury or trauma.
With respect to the charge of murder, the defendant's claim
fails. The trial evidence considered in the light most
favorable to the Commonwealth would allow the jury reasonably to
find that the defendant had sex with the victim (as he
conceded), at or near the time of her death; the red-brown
stains on the victim's body and clothes were or certainly
included the defendant's blood; the victim had not pulled up her
underwear and pants after having anal intercourse with the
defendant or after the defendant's blood was deposited on her
17
In particular, the defendant argues that DNA testing done
on the stains from the victim's body and clothing did not
identify the bodily source of the substance creating the stains,
and thus his potential contribution to the DNA mixtures was not
necessarily blood but could have been some other biological
fluid -- e.g., saliva or semen -- transferred to the victim
during intercourse. He also points to the fact that the DNA
found on the victim's underwear could have matched half of the
male population, and that the DNA testing performed actually
established that a fourth, unidentified man contributed sperm
DNA to these underwear stains.
12
body; the victim died from strangulation by ligature; she also
suffered significant injuries to her face as well as to her arm
and thigh; and she could have encountered the defendant at the
Brau-Hoff bar on the evening or night of October 23, 1996.
Based on this evidence, the jury reasonably could infer
that the defendant had sex with the victim and then strangled
her. See Commonwealth v. Perkins, 450 Mass. 834, 837-838 (2008)
("Because death had occurred while [the victim] was lying on her
back, and because no sperm cells were found on the crotch area
of her panties, death probably occurred after intercourse and
before [the victim] could pull up her clothes such that her
panties would collect sperm cells draining from her body").
This is a sequence of events that supports a determination that
the defendant acted with deliberate premeditation. See
Commonwealth v. Bregoli, 431 Mass. 265, 269-270 (2000)
("evidence of death by strangulation supported an inference that
the victim's death was not instantaneous, but the result of
pressure applied to her neck until she lost consciousness,"
which warranted finding that defendant "acted with malice and
deliberate premeditation"). Moreover, the extent and severity
of the victim's injuries permitted a finding of extreme atrocity
or cruelty. See Commonwealth v. Scott, 470 Mass. 320, 321, 324-
325 (2014) (evidence that victim was raped and strangled, with
significant injuries to head, skull, and face, supported jury's
13
guilty verdict of murder in first degree under theory of extreme
atrocity or cruelty [as well as other two theories of murder]).
With respect to the murder charge, therefore, the Latimore test
was met. See Commonwealth v. Latimore, 378 Mass. 671, 677
(1979) (considering evidence in light most favorable to
Commonwealth, we ask whether "any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt").
We agree with the defendant, however, that the evidence
presented was not sufficient to support his conviction of
aggravated rape. This court has established that "[t]he essence
of the crime of rape, whether aggravated or unaggravated, is
sexual intercourse with another compelled by force and against
the victim's will or compelled by threat of bodily injury."
Commonwealth v. McCourt, 438 Mass. 486, 494-495 (2003).
"Absence of consent is an essential element of the crime of
rape, whether aggravated or unaggravated." Commonwealth v.
Cheremond, 461 Mass. 397, 408 (2012). Here, the evidence from
which the jury could reasonably infer lack of consent was itself
lacking. Although the victim was found with her pants and
underwear pulled down to her knees, the clothing was intact with
no evidence of rips or tears. Contrast, e.g., Commonwealth v.
Tavares, 27 Mass. App. Ct. 637, 642 (1989), S.C., 57 Mass. App.
Ct. 1111 (2003) (evidence was sufficient to support conviction
14
of aggravated rape where, inter alia, victim "woke up without
her pants and her blouse and bra were torn"). In addition, the
autopsy report established that the victim's external genitalia
and anus were normal, and no injuries were noted in these areas.
Contrast, e.g., Commonwealth v. Miller, 435 Mass. 274, 278
(2001) (evidence that victim's thighs were bruised and her
vaginal opening had been injured, together with other evidence,
was sufficient to prove beyond reasonable doubt that defendant
had raped victim). There also was evidence that the victim had
worked as a prostitute in the past; further, the victim's
daughter indicated that she would not be surprised if the victim
was "going to make some money" the night she was murdered, and
the victim's body was found about one-half mile to one mile from
an area known to be a place that prostitutes frequented with
their customers.
The Commonwealth's case against the defendant was entirely
circumstantial. Although the victim ultimately suffered severe
injuries that, the jury could infer, were inflicted in
connection with her murder, there was no evidence favoring the
inference that the defendant raped the victim before killing her
over the inference that he had consensual sex with the victim
and then killed her. "When the evidence tends equally to
sustain either of two inconsistent propositions, neither of them
can be said to have been established by legitimate proof."
15
Commonwealth v. Cannon, 449 Mass. 462, 467 (2007), quoting
Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). Accordingly,
because the evidence was insufficient to permit a finding of
lack of consent beyond a reasonable doubt, the defendant's
conviction of aggravated rape must be reversed, and the jury's
finding that the defendant was guilty of murder in the first
degree on a theory of felony-murder must be set aside.18
2. Expert testimony. The defendant argues that the trial
judge abused his discretion in admitting the opinion testimony
of Debra McKillop, a criminalist with the State police crime
laboratory (crime lab) at the time the victim's killing was
initially investigated in 1996. At trial, the defendant
objected to two portions of McKillop's testimony: (1) that,
based on her experience, she would have expected there to be
some drainage located on the victim's underwear if the victim
had pulled up her underwear following the deposit of semen in
her rectum; and (2) that she would expect to see some
18
This conclusion follows from the fact that aggravated
rape was the sole felony put before the jury as a possible
predicate felony for felony-murder in the first degree. The
conclusion, however, does not affect the defendant's murder
conviction because the jury also convicted the defendant on
theories of deliberate premeditation and extreme atrocity or
cruelty, and the evidence was sufficient to support a conviction
on these theories. See Commonwealth v. Evans, 469 Mass. 834,
842-843 (2014), and cases cited (where jury convicts defendant
of murder in first degree under more than one theory, "evidence
supporting either theory would suffice to affirm the verdict").
16
interruption or disturbance of the stains on the victim's body,
if the victim had pulled up her pants after the stains had been
deposited.19 The defendant argues that McKillop's opinion
testimony in these areas exceeded the scope of her
qualifications and failed to meet the foundational requirements
for expert testimony. He further claims that because this
testimony was a pivotal piece of the Commonwealth's case, its
admission was highly prejudicial.20
"A trial judge has wide discretion to qualify an expert
witness and to decide whether the witness's testimony should be
admitted." Commonwealth v. Frangipane, 433 Mass. 527, 533
(2001). "The admission of expert testimony will be reversed
only where it constitutes an abuse of discretion or other error
of law." Id. See Commonwealth v. Avila, 454 Mass. 744, 764
(2009) (judge's decision to admit testimony "will not be upset
on appeal if any reasonable basis appears for it" [citation
19
The defendant's trial counsel did not state the specific
ground for his objections, but the defendant argues here that it
was apparent from the context that the objection was to the lack
of adequate foundation for McKillop's opinion testimony.
Nothing in our resolution of this issue turns on the point, and
we assume for argument that the defendant is correct.
20
The Commonwealth argues that defense counsel raised only
general objections to this testimony at trial and thus did not
preserve the claim, so that the correct standard of review is
whether the error, if any, created a substantial likelihood of a
miscarriage of justice. Because we determine there was no error
in admitting the contested testimony, we need not resolve the
standard of review issue.
17
omitted]). "In qualifying an expert witness, the question for
judicial decision is whether the witness has sufficient skill,
knowledge, and experience in the area of his training to aid a
jury." Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990).
McKillop testified at trial that she was employed at the
crime lab from 1986 until her retirement in 2007. After one
year working as a criminalist in the toxicology unit, she
transferred to the criminalistics section where her experience
entailed going to crime scenes to collect evidence as well as
working on evidence submitted to the crime lab. The cases she
worked on included fatal or nonfatal shootings, beatings,
stabbings, and sexual assaults, and involved a variety of
evidence including identification of body fluids, including
blood, saliva, and semen, as well as collection of trace
evidence, such as hair, fibers, paint, glass, and gunshot
residue. Later in her career McKillop was a supervisor in the
criminalistics unit for approximately nine years, and supervised
both the criminalistics and DNA units of the crime lab in the
two years before she retired. At the time she testified at
trial in 2012, McKillop was the forensic manager of the crime
laboratory of a county sheriff's office in California, where she
was responsible for overseeing the crime scene response unit,
the biology or DNA unit, the firearms unit, and the latent print
unit. She also has bachelor's degrees in chemistry and
18
environmental studies from the University of California in Santa
Barbara.
McKillop's challenged opinion testimony concerning what she
would expect to see if the victim had pulled up her underwear
and pants following intercourse and following the deposit of the
red-brown stains on her body clearly was based on this extensive
experience.21 The judge did not abuse his discretion in
admitting this testimony. See Commonwealth v. Rice, 441 Mass.
291, 297-299 (2004) (no abuse of discretion in permitting State
police chemist employed at crime lab to testify to opinion
concerning how long sperm may be found following ejaculation,
based on training and experience); Frangipane, 433 Mass. at
533-535 (where social worker witness had extensive training,
education, and experience interviewing and treating sexually
abused children, judge had discretion to allow witness to opine
concerning dissociation and recovered memory and fact that
21
McKillop was asked explicitly whether, "in [her]
experience," she would expect to see some sort of drainage or
transference of seminal fluid to the victim's underwear.
McKillop responded that drainage is "a common occurrence" and
stated, "in my experience, when examining cases in the
laboratory, we will see a consistency of having a stain on the
garment." Similarly, McKillop was asked, "based on that same
training and experience," whether the stains on the victim's
body appeared to be disturbed, and it was evident from the
context that McKillop's testimony on this topic was based on her
prior work as a criminalist; the defendant is not correct that
McKillop did, or was required to, base her opinions on an expert
level of knowledge of anatomy or physiology.
19
victims of trauma may experience them; witness was not required
to be medical doctor). Compare id. at 535-536 (error to permit
social worker witness to testify about how trauma victim stores,
retrieves, or dissociates traumatic memory because opinions
concerned physical functioning of brain; subject matter area was
proper for medical doctor, not social worker).22
There was no abuse of discretion or other error in the
trial judge's decision to admit McKillop's testimony.23
3. Substitute medical examiner. The medical examiner who
performed the autopsy on the victim retired approximately twelve
22
In contrast to the substitute medical examiner who
testified in this case regarding the anatomy of the rectum and
the sphincter muscle, McKillop did not testify to the physical
functioning of the body; her testimony was limited to opinions
based on her prior observations and experience as a criminalist.
To the extent that, as the defendant claims, the opinions of the
substitute medical examiner and McKillop contradicted each
other, such contradiction goes to the weight of the testimony,
not its admissibility. See Commonwealth v. Rice, 441 Mass. 291,
299 (2004).
23
It bears noting that in addition to McKillop, Beth
Saucier Goodspeed, a chemist employed at the State police crime
laboratory, testified at trial that if the victim had pulled up
her pants following the deposit of semen or sperm in her,
Goodspeed would have expected some drainage onto the victim's
underwear. It is also the case that the topic of semen draining
out onto underwear has been addressed by State police
criminalists in other cases. See, e.g., Commonwealth v. Scott,
470 Mass. 320, 323 (2014) (State police criminologist testified
"if somebody is up walking around, . . . semen would be draining
out of her and would be on the underwear if she were wearing
it," and pattern of stains found on victim's skirt was
"consistent with drainage if a person were laying [sic]
horizontal[ly]").
20
years before the defendant's trial took place. A substitute
medical examiner, Dr. Henry Nields, testified at trial regarding
certain findings in the autopsy report: that the victim's teeth
were broken off; that there was blood in the victim's mouth; and
that there were injuries to the victim's eyelids, nose, neck,
shoulder, clavicular region, arm, and thigh. He also testified
to his opinion as to the cause of the victim's death. The
defendant did not object to any of Nields's testimony. In
addition, the autopsy report and photographs from the autopsy
were introduced in evidence without objection. The defendant
now argues that admission of the autopsy report and the
substitute medical examiner's testimony about the underlying
findings in the report violated the defendant's constitutional
right to confrontation.24 Because there was no objection to
admission of the report or testimony at trial, we review for a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Emeny, 463 Mass. 138, 145 (2012).
An autopsy report prepared by a medical examiner who is
unable to testify constitutes "inadmissible hearsay whose
admission violate[s] the defendant's right of confrontation
under the Sixth Amendment to the United States Constitution";
24
The defendant correctly does not challenge the substitute
medical examiner's opinion testimony as to the cause of the
victim's death. See Commonwealth v. Emeny, 463 Mass. 138, 145
(2012).
21
and a substitute medical examiner is not permitted to testify
about the underlying facts and findings of the report on direct
examination. Id. at 145, quoting Commonwealth v. Walker, 460
Mass. 590, 594 n.6 (2011). See Commonwealth v. Phim, 462 Mass.
470, 479 (2012). Thus, neither the report nor Nields's
testimony about the findings in the report should have been
admitted.
The defendant argues that the admission of this evidence
created a substantial likelihood of miscarriage of justice
because the Commonwealth relied on the evidence about the
victim's injuries to prove that the defendant inflicted them and
then bled on the victim. The defendant claims this was critical
evidence because there was no other evidence connecting the
defendant to the injuries, and the over-all evidence of guilt
was not so overwhelming as to nullify its effect. We disagree
for three reasons.
First, the defendant used the evidence relating to the
autopsy findings and Nields's testimony in particular to help
build his defense. Specifically, on cross-examination, the
defendant elicited testimony from Nields about his observations
that there were no visible injuries to the victim's genitals or
anus. The defendant then used this testimony to support his
claim that the evidence was insufficient to prove the
intercourse between the victim and defendant was consensual, and
22
defense counsel reiterated the point in his closing argument.
See Commonwealth v. McCowen, 458 Mass. 461, 482 (2010) ("There
can be no substantial likelihood of a miscarriage of justice
where the defendant fails to object to the admission of
testimonial hearsay and then relies on that erroneously admitted
hearsay to challenge the prosecution's theory of the case").
See also Commonwealth v. Nardi, 452 Mass. 379, 395-396 (2008)
(no substantial likelihood of miscarriage of justice where
autopsy findings were admitted without objection and defense
expert "made use of and referenced those findings in his
testimony").
Second, Nields's testimony about the findings in the
autopsy report is cumulative of the injuries depicted in the
properly admitted autopsy photographs,25 and of Nields's
testimony regarding his review of these photographs. See
Commonwealth v. Rogers, 459 Mass. 249, 265-266, cert. denied,
132 S. Ct. 813 (2011) (no error in admission of testimony based
on autopsy photographs that constituted independently admissible
evidence); McCowen, 458 Mass. at 481 n.17 ("Dr. Nields, using
the photographs admitted in evidence, properly testified to the
location and nature of the victim's injuries").
Third, the autopsy report and Nields's testimony about the
25
The photographs were admitted through a State police
trooper who attended the autopsy.
23
victim's injuries did not relate to an issue contested at trial.
The defendant challenged his identification as the perpetrator
of the injuries, but did not dispute the nature of the injuries
the victim suffered. Rogers, supra at 266 (testimony by
substitute medical examiner about length and depth of stab wound
was not relevant to any contested issue when defense was lack of
identification of defendant as stabber).26
In sum, no substantial likelihood of a miscarriage of
justice arose from the erroneous admission of the autopsy report
and Nields's autopsy-related testimony. The defendant's
argument fails.
4. Evidence that the defendant patronized the Brau-Hoff
bar. Jessie Spencer testified at trial that she was "pretty
certain" the defendant at some (undefined) point had been a
patron of the bar, based on her examination of a photograph of
the defendant the police had shown her in 2008. The defendant
argues that the testimony was irrelevant because Spencer was
only "pretty certain" the defendant had been a customer at the
bar, and there was no testimony about when. The defendant
26
Contrary to the defendant's suggestion, the fact that the
victim suffered certain injuries did not indicate that the
defendant had inflicted them. In terms of identifying the
defendant as the person who caused the victim's injuries, the
DNA evidence was the relevant evidence. The autopsy report and
Nields's testimony about the autopsy findings did not relate to
DNA evidence.
24
alleges that the erroneous admission of this evidence resulted
in the unwarranted inference by the jury that both the victim
and defendant were present at the bar on the night of the
homicide. There was no error.
"Evidence is relevant if it has a rational tendency to
prove a material issue." Commonwealth v. Bresilla, 470 Mass.
422, 436 (2015), quoting Commonwealth v. Dunn, 407 Mass. 798,
807 (1990). To be relevant, "[e]vidence need not establish
directly the proposition sought; it must only provide a link in
the chain of proof." Commonwealth v. Gordon, 407 Mass. 340, 351
(1990), quoting Commonwealth v. Tobin, 392 Mass. 604, 613
(1984). The trial judge has "substantial discretion in deciding
whether evidence is relevant, and whether the prejudicial
implications of such evidence outweigh its probative value."
Commonwealth v. Pina, 430 Mass. 66, 78 (1999), quoting Tobin,
supra. A judge's determination will not be overturned unless
palpable error is found. Bresilla, supra.
The testimony by Spencer that she was "pretty certain" the
defendant had been a patron at the bar was relevant and properly
admitted. Although the information does not establish that the
defendant was at the bar on the night the victim was murdered,
it has a rational tendency to prove a link, however slight,
between the defendant and victim, and makes the fact that the
defendant encountered the victim on the night of her murder more
25
probable than it would be without the evidence. See Mass. G.
Evid. § 401 (2014). The absence of any time frame for when the
defendant was a patron of the bar certainly decreases the
probative value of the testimony, but the defendant has failed
to show that the evidence was "unduly" prejudicial, or more
prejudicial than probative. See Commonwealth v. Arroyo, 442
Mass. 135, 144 (2004).27
5. Prosecutor's closing argument. The defendant contends
that the prosecutor's closing argument was improper in a number
of respects: the prosecutor unfairly disparaged the defendant's
constitutional right to present a third-party culprit defense,
misstated the law, engaged in improper vouching of evidence, and
misstated the evidence. The combined effect of the
improprieties, he argues, requires reversal and a new trial.
There is no question that the prosecutor's argument was
flawed. Before reaching the principal focus of his attack, the
defendant's third-party culprit theory, the prosecutor told the
jury:
27
The defendant also argues that introduction of his
photograph in evidence following Jessie Spencer's testimony
about it was prejudicial; he claims the photograph was similar
to a mugshot, and conveyed to the jury that the defendant had a
criminal history. The defendant's trial counsel specifically
disagreed with this assessment in declining the judge's offer to
provide a limiting instruction. An examination of the
photograph, which is in the record, persuades us that the
defendant's argument on this point is without merit. See
Commonwealth v. Cruz, 445 Mass. 589, 594 (2005).
26
"I'm privileged, and moreover proud to represent the
citizens of the Commonwealth -- that's who I represent.
This is not a case about the prosecutor against [the
defendant]. This is a case about the citizens and [the
defendant]. Sometimes, that's easy to forget; but you
should know that the citizens of the Commonwealth, while
defendants are cloaked in certain fundamental
constitutional rights, and that's something we all embrace,
the citizens of the Commonwealth are equally entitled to a
fair trial. I ask you to hold onto that fundamental
principle as you listen, and deliberate later on."
This argument is problematic in two respects. First, the
jurors, by definition, were themselves all "citizens of the
Commonwealth," and the prosecutor's characterization of his role
as representing the "citizens" ran the risk of suggesting that
the prosecutor was representing the jurors-as-citizens against
the defendant, and in that way misrepresenting or at least
confusing the jurors' actual role as neutral fact finders
charged with weighing all the evidence and determining whether
the Commonwealth had proved the defendant's guilt beyond a
reasonable doubt. Second and more fundamentally, the
"Commonwealth" in a criminal case is not a shorthand way of
referring to individual citizens, and is not just the name of
the party on the other side of the "versus" from the defendant;
the "Commonwealth" plays a different role, and so does its
attorney. Although the Commonwealth is entitled to a fair
trial, and although the prosecutor has the responsibility to
argue the Commonwealth's case forcefully, "[n]evertheless, the
fact remains that the prosecuting attorney 'is the
27
representative not of an ordinary party to a controversy, but of
a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done.'"
Commonwealth v. Shelley, 374 Mass. 466, 472 (1978), quoting
Berger v. United States, 295 U.S. 78, 88 (1935). The
prosecutor's characterization of his role in this case as
representing "the citizens" of the Commonwealth against the
defendant, and the prosecutor's emphasis on the rights of "the
citizens," was at best inappropriate, and far better left
unsaid.
The majority of the prosecutor's argument was devoted to
attacking the defendant's third-party culprit defense. In his
closing, particularly near its beginning, the prosecutor
repeatedly sounded the theme that the defense was seeking to
mislead, confuse, and "prejudice" the jury with the presentation
of this defense by presenting information that "lack[ed]
materiality and relevance" -- information that should not even
be called "evidence" because it was so lacking in these
qualities.28
28
For example, immediately after asking the jury to "hold
onto" two fundamental "legal principles" -- namely, that the
"citizens of the Commonwealth are equally entitled to a fair
trial" and that "the Commonwealth does not have the burden of
28
proving that someone else did not commit the crime," the
prosecutor argued:
"It's important . . . [to keep these two principles in
mind] because you've been exposed to information. I will
not honor it by calling it 'evidence,' because evidence is
presumed to have relevance and materiality. You've been
exposed to information that has been advanced in an effort
to do what real evidence is never supposed to do. It's not
supposed to invite speculation. It's not supposed to
divert your attention from the defendant who is on trial.
It's not supposed to prejudice and confuse the fact finder
-- that's you, the jury. And yet, I say with a high level
of confidence, on behalf of the citizens, that that is
exactly what the effort has been here.
"It's been regrettable that the Commonwealth must
respond to information that lacks materiality and
relevance; but given the course of this trial, the
Commonwealth is compelled to do so. . . . [W]hy do I say
that this theory that's been advanced, this information
that's been advanced, lacks materiality and relevance?
It's because based on what you've heard . . . there is no
link -- no link, no discernible link -- between James
Webber and the murder of [the victim], or between Everett
Carlson and the murder of [the victim]. Nothing you've
heard or seen in this court room suggests that at all. In
that sense, the Commonwealth asks you to think of James
Webber and Everett Carlson as a couple of bowls of
spaghetti that have been hurled against the wall in the
desperate hope that some of it sticks.
". . .
"What about the information you've heard about [Webber and
Carlson] is not speculative, meant to divert your
attention, and meant to confuse you?
". . .
"How can you not conclude . . . that this information is
simply an invitation to you to speculate, to engage in rank
speculation, or meant to divert your attention or to
confuse you?
". . .
29
"The opportunity to present third-party culprit evidence is
of constitutional dimension, . . . because it is rooted in the
right of criminal defendants to a meaningful opportunity to
present a complete defense" (quotations and citations omitted).
Scott, 470 Mass. at 327. Pursuant to the trial judge's rulings,
the defendant here was fully entitled to present evidence and
argue his third-party culprit defense centered on James Webber
and Everett Carlson. Although the prosecutor was permitted to
comment on the defense strategy and tactics, and was not beyond
bounds in arguing that the strategy was intended to confuse,
see, e.g., Commonwealth v. Raposa, 440 Mass. 684, 697 (2004),
what may be permissible if stated once may become less so
through constant repetition. Although the prosecutor did not
describe the third-party defense as a "sham," see Commonwealth
v. Lewis, 465 Mass. 119, 130 (2013), and although he did not say
that the defendant or his counsel were "intentionally
misleading" the jury, see Commonwealth v. Fernandes, 436 Mass.
671, 674 (2002), his repeated characterization of the defense
evidence as irrelevant and immaterial "information," unworthy of
"Do you get the impression . . . based on all of that
inconsistent evidence, do you get the impression of what I
suggested to you in the beginning -- the attempt to confuse
you, and to confuse the issue? This is stuff that should
never have been heard by the jury. It's irrelevant, and
it's immaterial."
30
even being called "evidence"; his complaint that it was
"unfortunate" the Commonwealth even had to respond to it; and
his several rhetorical questions asking about the misleading and
speculative nature of the third-party culprit defense (see note
28, supra) came close. These comments and questions both
misstated the law -- the judge had specifically allowed the
third-party evidence to be introduced as "evidence" -- and
verged on suggesting that the entire third-party culprit defense
was improper and should not have been presented.29
"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." Scott, 470 Mass. at 335, quoting Commonwealth v.
29
The Massachusetts Guide to Evidence (2015) contains a
section setting out in comprehensive fashion the principles
governing proper and improper opening statements and closing
arguments, and provides citations to relevant decisions of this
court and the Appeals Court on these subjects. See Mass. G.
Evid. § 1113 (2015). Particularly in light of the availability
of this resource, going forward, there should be even less
excuse than at present for prosecutors as well as defense
counsel to stray beyond the bounds of proper argument.
31
Harris, 443 Mass. 714, 732 (2005).30 Here, the first three
factors weigh in the defendant's favor in whole or in part. On
the first, the defense counsel objected both during and after
the Commonwealth's closing.31 As for the second factor,
mitigation of the prosecutorial error by the judge's
instruction, the judge overruled the defense counsel's objection
30
See Commonwealth v. Lewis, 465 Mass. 119, 130 (2013):
"When determining whether error in a prosecutor's
closing argument requires reversal, we consider (1) whether
the defendant seasonably objected; (2) whether the error
was limited to collateral issues or went to the heart of
the case; (3) what specific or general instructions the
judge gave to the jury which may have mitigated the
mistake; and (4) whether the error, in the circumstances,
possibly made a difference in the jury's conclusion. . . .
With respect to the fourth factor, we consider whether the
jury, to whom we ascribe a certain level of sophistication,
would be able to sort out a prosecutor's excessive claims;
and we look to see if the Commonwealth's case was
overwhelming" (citations and quotations omitted).
31
The defendant's first objection followed the prosecutor's
suggestion, quoted in note 28, supra, to the effect that the
defense was seeking to confuse the jury with the third-party
culprit evidence and that such evidence should not have been
heard by the jury.
The second objection by the defense, lodged at the end of
the prosecutor's closing, was two-fold. The defendant's trial
counsel objected to the prosecutor's remarks suggesting the
defense had "compromised" the Commonwealth's right to a fair
trial by raising a third-party culprit defense. Counsel also
objected to the prosecutor's statements suggesting that the
defense had presented evidence that the jury should not have
heard. He asked for curative instructions with respect to both
sets of remarks by the prosecutor, a request the judge granted
in part. We discuss the judge's curative instruction in the
text, infra.
32
during the closing but, thereafter, the judge did give one
limiting instruction after the prosecutor completed his closing,
in partial response to the defendant's objections.32 The
instruction did help mitigate the prosecutor's improper
misstatements belittling and mischaracterizing the evidence
relied on by the defendant for his defense -- although it would
have been appropriate, as the defendant had requested, to
explain more directly the prosecutor's overreaching, and in
particular to have addressed specifically the prosecutor's
repeated assertions that the third-party culprit evidence was
"irrelevant" and "immaterial."33 Finally, on the third factor,
32
The judge told the jury:
"It was suggested to you that certain testimony given
in this court should only be considered by you as
'information,' and not as evidence in this trial. I've
told you before, and I'm going to instruct you [hereafter],
that sworn testimony given in this case is evidence, and
you shall consider as evidence.
"You were also told that there was evidence that you
never should have heard in this case, that you as the jury
should not have heard in this case, and that it was
irrelevant evidence. I've told you before that I rule on
the admissibility of evidence, and anything that you heard
in this case, I have ruled on -- in consultation with
counsel, many times. I have ruled that the evidence that
you heard is admissible; and that's the end of that story.
You shall consider it as evidence."
33
The judge declined to act on defense counsel's other
request, that the judge explain to the jury that the defendant
was entitled to raise a defense concerning the possibility of
third-party culprits and his doing so could not be taken as
interfering with the Commonwealth's right to a fair trial. A
33
the argument errors of the prosecutor related in whole or in
part to the third-party culprit defense, which was the heart of
the defense.
The final factor we consider concerns the strength of the
Commonwealth's case: does the strength eliminate the
possibility of prejudice arising from the prosecutor's argument?
The evidence leads us to conclude that the Commonwealth's
evidence did so. The DNA evidence unquestionably pointed to the
defendant, and not Webber or Carlson (or anyone else), as the
person responsible for the victim's death. That is, there was
no DNA evidence tying Webber to the victim, essentially none
tying Carlson,34 extremely little linking an unidentified
person,35 and the defendant was the sole source of the DNA
located in the victim's rectum. As indicated previously, the
DNA evidence from the rectum by itself indicates only that the
defendant had intercourse with the victim close to the time of
curative instruction with this substantive message would have
been appropriate.
34
One of the stains on the victim's underwear could have
come from half of all males, including Carlson (as well as the
defendant). The statistical probability that Carlson was the
source of the DNA on the stain is so low that it is virtually
meaningless.
35
As explained previously, one of the areas of the victim's
underwear that was tested led to generation of a partial male
DNA profile that did not match the defendant, Webber, or
Carlson. No further evidence covering the possibility of
another possible culprit beyond these three was offered.
34
her death, not that he killed her. However, when this DNA
evidence is combined with (1) the absence of drainage on the
victim's underwear, suggesting the victim had not pulled up her
pants and underwear after intercourse and before she was killed;
(2) bloodstains -- or what were certainly most likely to be
bloodstains -- on the victim's hip, knee, and sneaker, all of
which were consistent with the defendant's DNA, and one of which
would have matched only one in 1.366 billion randomly selected
Caucasians;36 and (3) the fact that none of these fragile stains
was smeared or disturbed in any way -- again suggesting the
victim had not pulled up her pants and underwear -- the
conclusion that the defendant killed the victim seems almost
inescapable.37
36
The defendant argues that it is a misstatement of the
evidence to refer to the red-brown stains found on the victim's
hip, right thigh-left knee area, and sneaker as bloodstains, as
the prosecutor did in his closing. We disagree. All three
stains found on the victim screened positive for blood, and one
of them was confirmed as blood by additional testing. Moreover,
as summarized here in the text, all three stains were consistent
with the defendant's DNA, one of them overwhelmingly so. The
prosecutor's argument on the point was proper, and the evidence
strongly supports the verdict.
37
The defendant also contended the prosecutor "improperly
vouched on the evidence" in his closing. The defendant points
to the prosecutor's comment, "I say with a high level of
confidence, on behalf of the citizens" that the defense was
seeking to divert the jury with the third-party culprit defense.
See note 28, supra, where the prosecutor's comment is quoted in
full. As discussed in the text, we consider the prosecutor’s
comment to have been improper, but vouching is not the issue.
As the defendant points out, improper vouching occurs when the
35
In sum, there is no question the defendant had the right to
advance a third-party culprit defense, and no question that the
prosecutor's argument improperly sought to impugn that defense.
But even considering the entire case through the lens supplied
by G. L. c. 278, § 33E, we are persuaded that the DNA evidence
pointing to the defendant as the person who killed the victim
requires the conclusion that the defendant, in the end, was not
prejudiced by the prosecutorial errors.38 A new trial is not
warranted.
6. Jury instruction on third-party culprit evidence. The
defendant also argues that the judge committed reversible error
by declining to give the defendant's proffered instruction on
the third-party culprit defense. There was no error.
The judge instructed the jury:
"The Commonwealth does not have the burden of proving
that no one else may have committed the murder, nor does
the defendant have to prove that another person committed
prosecutor personally expresses a belief in the credibility of a
witness. See Commonwealth v. Tu Trinh, 458 Mass. 776, 786
(2011).
38
It is also the case that most of the prosecutor's
improper comments were made in the first part of his long
closing. (The prosecutor's closing lasted for approximately
fifty minutes.) Thereafter, the prosecutor principally focused
his attention on the specifics of the trial evidence, and
marshalled the evidence to refute the substance of the third-
party culprit defense. This was an eminently permissible and
appropriate approach and, given the length of the closing, may
have blunted the impact of the earlier improper comments. It is
important to consider the prosecutor's argument as a whole. See
Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002).
36
the offense charged. The Commonwealth does have the burden
to prove the defendant's guilt by proof beyond a reasonable
doubt."
To date, this court has not held that where third-party
culprit evidence is admitted, a judge is required to give an
instruction on it, as long as the judge explains that "the
Commonwealth's burden includes the obligation to prove beyond a
reasonable doubt that the defendant committed the crime."
Commonwealth v. Hoose, 467 Mass. 395, 412 (2014). The judge's
instructions did this, and the quoted instruction at least
specifically mentioned the type of evidence at issue. Although
giving the defendant's proposed instruction on third-party
culprit evidence39 would have been appropriate -- especially in
39
The instruction requested by the defense stated in
relevant part:
"Although the defendant is under no obligation to
prove his innocence, the defendant has raised the defense
of other persons who you could find had motive,
opportunity, or reason to have killed [the victim].
Although such persons are not on trial, the defendant has
brought forward some evidence which might indicate that a
third party, not the defendant, committed the crime for
which the defendant is charged. The defendant must show
some evidence which, if believed, tends to directly connect
a third party to the crime. The defendant offers the
third-party culprit testimony not to prove the guilt of the
third party, but for your consideration as to the guilt of
the accused. You must consider if this evidence raises a
reasonable doubt as to the defendant's guilt. Keep in
mind, however, that the defendant is not required to prove
another person committed the crime. On the other hand, the
Commonwealth does not have the burden of proving that no
one else may have committed the offenses. In the end, the
burden remains with the Commonwealth to prove the
37
light of the prosecutor's closing argument -- the judge was not
required to do so.
7. Review under G. L. c. 278, § 33E. We have reviewed the
evidence and the trial record thoroughly and carefully pursuant
to our obligation under G. L. c. 278, § 33E. We conclude that
the defendant's conviction of aggravated rape must be reversed,
but find no basis for any additional relief.
8. Conclusion. With respect to the charge of aggravated
rape, the defendant's conviction is reversed, the jury's finding
of guilt is set aside, and judgment shall enter for the
defendant. The defendant's conviction of murder in the first
degree is affirmed.
So ordered.
defendant's guilt of the crime charged beyond a reasonable
doubt."