Commonwealth v. Santana

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SJC-12039
COMMONWEALTH vs. CESAR SANTANA.
Essex. January 10, 2017. - August 17, 2017.
Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement, Hearsay, Expert
opinion. Witness, Expert. Practice, Criminal, Capital
case, Motion to suppress, Admissions and confessions,
Voluntariness of statement, Mistrial, Argument by
prosecutor, Plea.
Indictments found and returned in the Superior Court
Department on December 12, 2008.
A pretrial motion to suppress evidence, filed on June 8,
2009, and amended October 3, 2011, was heard by Kimberly S.
Budd, J.; a second pretrial motion to suppress evidence, filed
on April 12, 2012, was heard by Howard J. Whitehead, J.; a third
pretrial motion to suppress evidence, filed on June 4, 2013, was
heard by Richard E. Welch, III, J.; and the cases were tried
before David A. Lowy, J.
Elizabeth Caddick for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
2
HINES, J. In January, 2014, a Superior Court jury
convicted the defendant, Cesar Santana, of murder in the first
degree of Rafael Castro, on the theories of extreme atrocity or
cruelty, and felony-murder with home invasion and armed
burglary, assault on occupant as the predicate felonies. On
appeal, the defendant asserts error in (1) the denial of his
motion to suppress statements; (2) the admission of hearsay
testimony from various witnesses; (3) the denial of a requested
DiGiambattista jury instruction; (4) the denial of the motion
for a mistrial following the jury's exposure to inadmissible
evidence; and (5) certain improper statements made in the
prosecutor's closing argument. The defendant also requests that
we exercise our authority pursuant to G. L. c. 278, § 33E, to
reduce the murder conviction or to order a new trial. We affirm
the defendant's convictions and decline to grant relief under
G. L. c. 278, § 33E.
Background. 1. The murder. We summarize the facts the
jury could have found, reserving certain details for our
discussion of the alleged errors. On the night of August 25,
2004, Norma Cedeno and her stepfather, Rafael Castro, were
3
attacked by a group of men as the two entered Castro's Lawrence
apartment.1
Cedeno, who entered the apartment first and did not turn on
any lights, walked to the bathroom, where she was grabbed by a
man. Although she could not see the man's face, she felt
something "like a gun" on her back. Hearing Cedeno scream,
Castro ran into the apartment, and two men came out of the
kitchen. As the men struggled, Cedeno, who had been pushed down
to the floor and told to keep her head down, heard a gunshot,
saw Castro on the floor, and heard men arguing in Spanish, some
of whom asked, "Why did you shoot him?" Based on the voices she
heard and the feet she could see walking around the apartment,
Cedeno deduced that four men were involved in the incident.
Thereafter, Cedeno was taken into a bedroom and made to lie
on the floor. A pillowcase was put over her head. Although the
men were initially going to duct tape her hands and feet
together, they complied with her plea not to tie her up.
Instead, one man remained in the bedroom with her. Cedeno could
hear Castro's voice, which although clear at first, became
fainter as time passed. During the time the men were in the
apartment, Cedeno heard them "screaming," hitting and
threatening Castro, and demanding that he make a telephone call.
1
Norma Cedeno testified to the details of the attack at
trial under a grant of immunity concerning her involvement in
drug dealing with her mother and stepfather.
4
At one point, the men brought Cedeno into the bedroom with
Castro, removed her shirt, and threatened to burn her with an
iron unless Castro agreed to make the call.
Eventually, one man said to Cedeno, "Three of us are
leaving and I'm staying here . . . and after I leave[,] if you
call the police or someone for help we're just going to come
back for you." Although Cedeno did not know the men, they
seemed to be familiar with Castro. After all of the men left
the apartment, Cedeno went to the other bedroom and found
Castro, taped up, bleeding from the gunshot wound on his head,
and unable to talk. Cedeno cut the duct tape binding Castro
and, eventually, telephoned 911.
Paramedics who arrived in response to the 911 call
determined that Castro had "no obvious signs of life." Castro's
cause of death was the gunshot wound to his head.
2. The investigation. The police recovered evidence from
the apartment including two rolls of duct tape, one of which had
blood on it, several pieces of duct tape, one piece of which was
found in the bathroom trash barrel, and samples of bloodstains
and pools in various areas of the apartment.
A latent fingerprint from a roll of duct tape recovered
from the scene was determined to be consistent with the known
fingerprint of Joonel Garcia. Also, a deoxyribonucleic acid
(DNA) swab was taken from a "small indentation" near the torn
5
end of the piece of duct tape found in the bathroom trash
barrel. It contained a mixture of the DNA of at least two
individuals, including the defendant, whose DNA "matched" the
major profile of the mixture.
The police interviewed Jessica Encarnacion, who was the
girl friend of Garcia and lived with him in an apartment in
Lawrence. At trial, Encarnacion testified that four men --
Garcia, the defendant, and two others -- arrived at around
midnight at Garcia's apartment. Garcia was covered in blood.
Ignoring Encarnacion's questions about what was going on, Garcia
told her to pack because they had to leave the country.
Thereafter, she and the four men drove to New York, stopping
only to dispose of the gun. Once in New York, Garcia and
Encarnacion purchased one-way tickets to the Dominican Republic
and left the United States.
In August, 2004, the defendant initiated a conversation
with his probation officer,2 during which he stated that he would
be willing to provide information about a shooting in Lawrence
in exchange for financial compensation. The defendant told this
officer that a man named "Joonie" shot someone in the head, and
that the defendant knew the location of the firearm used in the
shooting. The probation officer passed the information on to
2
At the time, the defendant was on probation for an
unrelated matter.
6
the Boston police department.3 In March, 2005, the defendant
initiated a second conversation with his probation officer about
the shooting in Lawrence. This time he told the officer that he
had significant legal concerns and added that the shooting in
Lawrence was actually a drug-related "homicide."
On March 4, 2005, the police interviewed the defendant. At
that time, the defendant was being held in a house of correction
on unrelated charges. Present were Trooper Robert LaBarge of
the State police and Detective Carlos Cueva of the Lawrence
police department. Although the defendant indicated that he
spoke and understood English, LaBarge asked Cueva to serve as a
Spanish translator because Spanish was the defendant's primary
language.4 Initially, the defendant agreed to allow the police
to audio record the interview. His demeanor was "cautious," but
he did not exhibit signs of emotional distress. The tone of the
interview was conversational. During the recorded portion of
the interview, the defendant was provided Miranda warnings in
Spanish and the defendant read the warnings out loud in Spanish.
After the defendant acknowledged that he understood and signed
3
The trial record lacks evidence of the Boston police
department's response to the probation officer's first report.
4
Detective Carlos Cueva spoke both English and Spanish, and
considered Spanish to be his native language. Although Cueva
grew up speaking Spanish in his family home and studied Spanish
in high school, he had no formal training in Spanish
translation.
7
the written warnings, LaBarge began questioning the defendant
about the murder of Castro.
During the interview, in response to the suggestion that he
was inside the apartment at the time of Castro's murder, the
defendant stated that he was actually outside the apartment,
arriving only after the incident occurred. The defendant told
the police that after he received a call from Garcia requesting
a ride, he drove to an apartment building, picked up Garcia and
two other men, and dropped them off at Garcia's Lawrence
apartment. During the drive to the Lawrence apartment, the men
discussed the fact that Garcia had shot Castro. After remaining
in Garcia's apartment for a period of time, the defendant drove
Garcia and Encarnacion to Boston. The firearm used in the
murder was buried before Garcia and Encarnacion left for the
Dominican Republic. The day before the murder, the defendant
had transported a bag of firearms to Garcia's Lawrence
apartment. In exchange, the defendant received money and drugs.
At the conclusion of the interview, LaBarge asked the defendant
to sign the contemporaneous handwritten notes transcribing the
conversation, but the defendant refused.
Discussion. 1. Motion to suppress. The defendant filed
three motions to suppress statements he made during the March 4,
2005, interview with the police. Insofar as relevant here, in
2013, the defendant filed a third motion to suppress,
8
reasserting the voluntariness issue that had not been reached in
any previous ruling. A judge (motion judge) denied this motion,
ruling that "[a]ny understanding that [the] statements would be
confidential and not used in court, was completely dissipated"
after the defendant was given the Miranda warnings and
voluntarily waived those rights. The defendant challenges only
the motion judge's ruling denying the motion to suppress on the
ground that his statement was voluntary.
We recite the facts as found by the motion judge who "fully
[i]ndorsed and incorporate[d]" the facts found by a different
judge who had denied one of the defendant's earlier motions to
suppress. We supplement the facts "with evidence in the record
that is uncontroverted and that was implicitly credited by the
motion judge." Commonwealth v. Melo, 472 Mass. 278, 286 (2015).
The defendant met with the police at the jail where he was
being held on unrelated charges. The officers were in
plainclothes and did not have their credentials or firearms with
them during the interview. The tone of the interview was
conversational. Because the defendant did not always understand
English, Cueva translated. However, the translation of
LaBarge's statements was neither word for word nor always
accurate. Cueva also communicated information in Spanish to the
defendant without translating it into English for LaBarge. When
LaBarge asked the defendant if he would consent to having the
9
interview recorded, Cueva did not translate the defendant's
response: "Okay, no problem . . . okay . . . as long as it is
not used in court . . . better if not used in court . . .
whatever I say to you be confidential." Instead, Cueva replied
to the defendant, "No, do not worry," in Spanish.
After this colloquy between the defendant and Cueva and
prior to asking any questions about the murder, LaBarge inquired
whether the defendant could read and write Spanish. When the
defendant replied, "Yeah, perfect," LaBarge provided him with
Miranda warnings written in Spanish. LaBarge asked the
defendant to read aloud each warning and say whether he
understood it. The defendant did so and indicated that he
understood the warnings.
Following the Miranda warnings, LaBarge stated to the
defendant, "We are going to use the information . . . I have to
be honest, my goal is not to, to save you and to help you out.
My goal is to find the truth." Cueva translated this statement
as follows: "Any information that you give us now, [LaBarge
would] go to the court and they'd talk with the judge and the
lawyer and to say that 'look, Cesar came, talked to me, gave me
that and, we're going to try to help you, but he wouldn't give
you er . . . er, you know." Near the end of the recorded
portion of the interrogation, the defendant said in Spanish,
10
"Tell him that it was me who had him come over, it wasn't him
who looked for me -- it was me who asked for him to come over."
Relying on the transcript of the recorded portion of the
interview, the motion judge also found that the tone of the
interview was "conversational," the defendant was "relaxed
throughout," and "appeared to be chuckling or laughing" on
occasion. Regarding the defendant's language skills, the judge
found that the defendant "plainly can speak and understand a
fair amount of English," although Spanish is "obviously" his
"primary language." The judge further found that "the defendant
plainly understood each [Miranda] right," provided to him in
Spanish, and "at times [he] corrected LaBarge as to the
numbering of these rights." Last, the judge determined that
although "Cueva's translation, obviously, could have been much
better," the defendant nevertheless "fully understood what was
going on."
a. Standard of review. In this case where the motion
judge's findings were based in part on his review of the
transcript of the defendant's interview with the police and in
part on a different judge's findings after an evidentiary
hearing, we apply the appropriate standard of review to each in
our review of the denial of the defendant's motion to suppress.
To the extent that the motion judge's findings are based on the
documentary evidence available to this court in the appellate
11
record, our review is de novo. We give no deference to those
findings as "this court stands in the same position as . . . the
[motion] judge, and reaches its own conclusion unaffected by the
findings made by the [motion] judge." Commonwealth v. Novo, 442
Mass. 262, 266 (2004), quoting Berry v. Kyes, 304 Mass. 56, 57
(1939). Insofar as the motion judge's findings incorporate the
other judge's findings, "we accept [those] findings of fact and
will not disturb them absent clear error. " Commonwealth v.
Tremblay, 460 Mass. 199, 205 (2011). However, "[w]e make an
independent determination as to the correctness of the judge's
application of constitutional principles to the facts as found."
Id.
b. Analysis. In deciding the issue of voluntariness, the
motion judge acknowledged that the defendant's initial statement
that he would speak to the officers "as long as it was not used
in court" was "concerning," and Cueva's response, "No, don't
worry," was "even more concerning." Nonetheless, the motion
judge concluded that, "[a]ny understanding that his statements
would be confidential and not used in court, was completely
dissipated after Trooper LaBarge requested that the defendant
read his Miranda rights and when the defendant voluntarily
waived those rights." Additionally, the motion judge concluded
that LaBarge further dispelled the notion that the defendant's
statements would not be used against him when he "went out of
12
his way to explain to the defendant, who obviously understood
some English, that he was not making any promises to the
defendant," and that he would report the defendant's statements
to the prosecutor and or the court. On this basis, the motion
judge concluded that the defendant's statement was voluntary and
a product of the defendant's "free will." There was no error.
"It is well established that a confession or an admission
is admissible in evidence only if it is made voluntarily."
Tremblay, 460 Mass. at 206. A statement is voluntary when it is
"the product of a 'rational intellect' and a 'free will,' and
not induced by psychological coercion." Commonwealth v. Monroe,
472 Mass. 461, 468 (2015), quoting Tremblay, supra at 207. The
burden is on the Commonwealth to "prove beyond a reasonable
doubt that 'in light of the totality of the circumstances
surrounding the making of the statement, the will of the
defendant was [not] overborne,' but rather that the statement
was 'the result of a free and voluntary act.'" Commonwealth v.
Baye, 462 Mass. 246, 256 (2012), quoting Commonwealth v. Durand,
457 Mass. 574, 595-596 (2010), S.C., 475 Mass. 657 (2016).
Because "the issue of voluntariness turns on 'all the
surrounding circumstances,'" Baye, 462 Mass. at 256, quoting
Dickerson v. United States, 530 U.S. 428, 434 (2000), we have
declined to adopt a "'bright-line rule[]' that the use of
improper interrogation techniques [such as promises of
13
confidentiality] will always result in suppression of a
defendant's incriminating statements as involuntary." Baye,
supra, quoting Tremblay, 460 Mass. at 210-211. However, we have
warned, "assurances that a suspect's statements will not be used
to prosecute him will often be sufficiently coercive to render
the suspect's subsequent admissions involuntary even when the
suspect shows no outward signs of fear, distress[,] or mental
incapacity" (quotations omitted). Baye, supra at 262. We
conclude, as did the motion judge, that the assurance of
confidentiality in the particular circumstances of this case was
dissipated by the timing of the Miranda warnings and other
factors tending to show that the defendant did not rely on that
assurance in making his statement to the police.
Here, the Miranda warnings were given orally and in writing
after Cueva's response, "No, don't worry," to the defendant's
expressed concern that his statement not be used against him in
court. The motion judge found that the defendant understood the
warnings because they were written in Spanish, the defendant's
native language. To ensure that the defendant understood the
warnings, LaBarge required him to read each warning out loud,
and verbally indicate whether he understood after each. The
defendant did so as to each, and signed the Miranda waiver form.
Further, the defendant's familiarity with the warnings and his
correction of the officer's recitation of the warning supports
14
this finding.5 There is no suggestion in this record that the
defendant did not understand the warnings, which plainly
informed the defendant that his statements could not be held
confidential. LaBarge's caution that the defendant's statement
would be conveyed to the prosecutor and the court sufficiently
dispelled any assurance that the defendant's statements would
not be used against him. Thus, the plain language of the
Miranda warnings, which the defendant understood, communicated
that the statements could not be held confidential.
We recognize, however, that the recitation of Miranda
warnings is not dispositive. See Commonwealth v. Libby, 472
Mass. 37, 41 (2015) ("Whether made in a custodial or
noncustodial setting, and even where there has been a valid
waiver of Miranda rights, we must consider the voluntariness of
a defendant's statement"). Rather, it is only one of several
factors we consider when reviewing the voluntariness of a
statement. See Monroe, 472 Mass. at 468. Apart from the
language of the Miranda warnings disavowing any promise of
confidentiality, we are persuaded by the judge's findings that
the defendant could not have believed that his statement would
5
The third warning (translated into English) read,
"Anything that you say can be employed against you." After
reading the warning out loud in Spanish, Trooper Robert LaBarge
asked him if he understood "number two," to which defendant
responded "Yes," clarified, "That's number three," and indicated
he also understood number two.
15
be confidential and that the defendant did not rely on that
promise of confidentiality in making his statement.
After Cueva's, "No, do not worry," statement to the
defendant and after the Miranda warnings, the police
communicated in unambiguous terms that the statement would not
be confidential and the precise manner in which the statement
would be used. Although Cueva's translation of LaBarge's
statements was far from perfect, he nevertheless communicated to
the defendant that the police were making no promise to keep the
defendant's statement confidential. In fact, Cueva told the
defendant that they would report the information to "the
[prosecuting] attorney that is going to be against [him] when
[he] goes to court."6 Cueva also explained to the defendant that
LaBarge was not there to promise that if he made a statement,
the police would let him go or that his case would "come out
well without problems."
Further, Cueva's statement to the defendant that the
officers would speak of his cooperation with the court and try
to help him does not undermine our conclusion. We have
6
Although we conclude that the defendant's statement was
voluntary, we stress that Cueva's inaccurate translation,
particularly his failure to translate for LaBarge the
defendant's request for confidentiality and Cueva's response to
the request, brought this case close to the line that otherwise
would require suppression. This case makes plain the need for
law enforcement to use capable, trained translators who will
report verbatim the question asked and the response given.
16
recognized that an officer is not prohibited from "suggest[ing]
broadly that it would be 'better' for a suspect to tell the
truth, [and] may indicate that the person's cooperation would be
brought to the attention of public officials or others involved,
or may state in general terms that cooperation has been
considered favorably by the courts in the past." Tremblay, 460
Mass. at 209, quoting Commonwealth v. Meehan, 377 Mass. 552, 564
(1979), cert. dismissed, 445 U.S. 39 (1980). See Commonwealth
v. Tolan, 453 Mass. 634, 643 (2009) (officer's statement
indicating police would help defendant and that defendant could
help herself by telling truth did not constitute assurance
forbidden by Meehan, supra); Commonwealth v. Mandile, 397 Mass.
410, 414 (1986) (statement not involuntary where defendant
initiated discussion of leniency and affirmatively sought deal,
and where officer indicated only that prosecutor would "discuss
leniency").
Moreover, as the Commonwealth points out, the defendant's
request to cease audio recording shortly after being provided
his Miranda rights and his refusal to sign Trooper LaBarge's
contemporaneous transcription at the conclusion of the interview
because he "didn't know where he stood in the case," suggest
that the defendant understood the statement could be used
against him. Thus, this case is distinguishable from Baye, 462
Mass. at 257, where the officers "employed multiple problematic
17
tactics" throughout the ten-hour interrogation, including
exaggerating the strength of the evidence and dissuading the
defendant from speaking with an attorney by "clearly implying"
that his statements would not be used against him.
Last, the defendant was motivated by self-interest and the
fear of repercussions from Garcia when he approached his
probation officer offering to provide information about the
murder. As the judge found, the defendant was not concerned
about providing information to the police, he was particularly
concerned with retaliation from "that young [nineteen year old]
guy, that little guy has about [four] deaths under his belt."
The defendant added, "that young guy has me, he has me, you
know, he has me under a lot of pressure and terrified."
Accordingly, in light of the totality of the circumstances,
we conclude that the Commonwealth met its burden of proving
beyond a reasonable doubt that the defendant's statement was
made voluntarily. Therefore, any initial promise of
confidentiality that Cueva conveyed to the defendant did not
render his statement involuntary.
2. Evidentiary rulings. a. Bite mark testimony. The
defendant argues LaBarge's testimony that the duct tape found in
the bathroom trash barrel of Castro's apartment "had . . . what
was believed to be a bite mark or dental impression, where it
looked like -- I was told maybe somebody had bit it, when they
18
were ripping it" constituted inadmissible hearsay and violated
his right to confrontation under the Sixth Amendment to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights. The testimony was admitted in the direct
examination of LaBarge regarding forensic evidence that the
police processed during the investigation in an effort to
identify possible suspects. LaBarge's response constituted
impermissible hearsay and should not have been admitted.
Because there was no objection at trial, our inquiry is
"'whether the impropriety created a substantial likelihood of a
miscarriage of justice.'"7 Commonwealth v. Fritz, 472 Mass. 341,
351 (2015), quoting Commonwealth v. Gentile, 437 Mass. 569, 579-
580 (2002). We conclude that it did not. The defendant's
7
Prior to trial, the defendant filed a motion in limine
that sought to exclude evidence of the "tooth mark." This
motion, however, does not properly preserve the defendant's
claim of error with respect to LaBarge's inadmissible hearsay
testimony. In Commonwealth v. Grady, 474 Mass. 715, 719 (2016),
we concluded that we would no longer require an objection to the
admission of evidence at trial where the defendant sought to
preclude the admission of the evidence through a motion in
limine. However, we cautioned that our ruling "is not as broad
as it may seem." Id. Specifically, "[a]n objection at the
motion in limine stage will preserve a defendant's appellate
rights only if what is objectionable at trial was specifically
the subject of the motion in limine." Id. In his motion in
limine, the defendant objected to the admission of the "tooth
mark" evidence because "the Commonwealth does not intend to call
any expert with sufficient education, training, or familiarity
with the subject matter of the anticipated testimony." Because
LaBarge's hearsay testimony was not the subject of the motion in
limine and the defendant failed to object at trial, the error
was not properly preserved.
19
defense was that he was not in the apartment at the time of
Castro's murder, and that his DNA was possibly inadvertently
left on an indentation near the ripped edge of an approximately
twelve-inch piece of duct tape when he brought the bag of guns
to Garcia's Lawrence apartment. This explanation strains
credulity, as it required the jury to believe one of two
scenarios: (1) that a piece of duct tape with the defendant's
DNA near the ripped edge was transported in a bag along with the
guns to Garcia's apartment and then placed in the bathroom trash
barrel of Castro's apartment; or (2) that the defendant's DNA
was inadvertently transferred to the roll of duct tape and
remained on the tape after it was handled, ripped, and placed in
the bathroom trash barrel by someone else. Accordingly, we
conclude that no substantial likelihood of a miscarriage of
justice resulted from the impermissible hearsay testimony.
b. Testimony regarding the defendant's presence at the
scene. The defendant argues that the trial judge erred when he
permitted LaBarge to testify that he told the defendant that he
had information that the defendant was in the apartment at the
time of the crime because it constituted inadmissible hearsay
and violated his confrontation rights.8 The defendant's argument
is unavailing.
8
Specifically, the following colloquy between the
prosecutor and Trooper LaBarge was admitted at trial:
20
It is well established that "if a defendant is charged with
a crime and unequivocally denies it, that denial is not
admissible in evidence." Commonwealth v. Bonnett, 472 Mass.
827, 838 (2015), quoting Commonwealth v. Morse, 468 Mass. 360,
375 n.20 (2014). But, we have also recognized that "accusatory
statements shed their hearsay character when they are offered
not for the truth of the matter asserted, but to provide context
for admissible statements of the defendant." Bonnett, supra at
838 n.13. Such was the case here.
As the trial judge pointed out, the accusation was not
offered for its truth, but rather to contextualize the
defendant's statement that is "arguably exculpatory." Absent
the prefatory statement to contextualize the defendant's
response (that he was outside the apartment that night), it
improperly suggests that the defendant, without any prompting,
generously put himself at the scene of the murder. Because the
statements were not introduced for the truth of the matter
asserted, their admission did not violate the defendant's right
The prosecutor: "Trooper, did you . . . tell Mr. Santana
that you believe that he was inside the apartment that night,
and that you had information that he was there that night?"
The witness: "Yes."
The prosecutor: "What was his response to that?"
The witness: "He denied being in the apartment."
21
to confrontation under the Sixth Amendment. See Crawford v.
Washington, 541 U.S. 36, 59 n.9 (2004) ("The [Confrontation]
Clause . . . does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter
asserted").
To ensure that the jury did not use the statements for an
improper purpose, the judge instructed the jury that LaBarge's
statement was not admissible for its truth, or for any
information that the trooper did or did not have. See Bonnett,
472 Mass. at 838 n.13 (it may be appropriate for defendant to
request instruction "limiting the jury's consideration of the .
. . [accusatory] statements to its nonhearsay purpose").
Additionally, the judge emphasized that the jury were to use the
statement only for the purpose of understanding, weighing, and
considering the answer that the defendant gave in response to
the trooper's question. Accordingly we conclude that the judge
committed no error in admitting LaBarge's statement.
c. Substitute medical examiner testimony. The defendant
maintains that the judge erred in allowing the admission of the
testimony of a substitute medical examiner, who did not conduct
the autopsy of Castro and who based her testimony, in part, on
22
the drawings of the nontestifying medical examiner.9 The
defendant filed a motion in limine seeking exclusion of the
testimony, and also objected at trial. The defendant argues
that the admission of the testimony violated his confrontation
rights under the Sixth Amendment and under art. 12. We
disagree.
In Commonwealth v. Reavis, 465 Mass. 875 (2013), we
outlined the parameters of the opinion testimony that a
substitute medical examiner may offer at trial. Specifically,
we instructed that "[a] substitute medical examiner who did not
perform the autopsy may offer an opinion on the cause of death,
based on his review of an autopsy report by the medical examiner
who performed the autopsy and his review of the autopsy
photographs." Id. at 883. We allow the substitute medical
examiner to opine on this issue because autopsy reports by other
medical examiners and autopsy photographs "are documents upon
which experts are accustomed to rely, and which are potentially
independently admissible through appropriate witnesses." Id.
Here, the substitute medical examiner's testimony remained
largely within the parameters we set forth in Reavis. The
medical examiner opined on Castro's cause of death (gunshot
wound), how the gunshot likely led to his death, and the amount
9
The medical examiner who conducted the autopsy of Castro
in August, 2004, was no longer employed by the office of the
chief medical examiner at the time of trial.
23
of time that could have elapsed between the gunshot wound and
his death, all of which were permissible areas of inquiry under
Reavis. See Reavis, 465 Mass. at 883. To the extent that the
substitute medical examiner's opinion ventured into inadmissible
territory -- specifically, the location of the gunshot wound --
it was limited when the judge sua sponte paused the direct
examination of the witness, held a colloquy between the parties
at sidebar, and struck the improper testimony from the record.
Nevertheless, the defendant contends that he could not
meaningfully cross-examine the substitute medical examiner about
the reliability of the drawings produced by the medical examiner
responsible for performing Castro's autopsy; thus, the admission
of the testimony was inconsistent with Commonwealth v.
Greineder, 464 Mass. 580, 595, cert. denied, 134 S. Ct. 166
(2013). We are not persuaded. In Greineder, we reiterated that
where the pathologist responsible for performing the autopsy was
unavailable to testify at trial, the substitute expert witness
was prohibited from testifying to the pathologist's autopsy
findings. Id. at 585. However, consistent with previous cases,
we reaffirmed that independent expert opinion testimony, even
where based on facts and data originating from a nontestifying
examiner's report, does not infringe on a defendant's right of
confrontation because the defendant has the opportunity to
cross-examine the witness on "the foundation of [her] opinion."
24
Id. at 584-589. Here, the substitute medical examiner testified
to her independent opinion and was available for cross-
examination on the foundation of that opinion. Thus, the
testimony was consistent with this court's mandates in Reavis
and Greineder, and its admission was not error.
3. DiGiambattista instruction. At trial, the defendant
asked the judge to instruct the jury pursuant to Commonwealth v.
DiGiambattista, 442 Mass. 423 (2004). The judge denied the
request, reasoning that because defendant requested the audio
recording device to be turned off, he was not entitled to the
instruction. The defendant argues that the trial judge erred in
declining to give a DiGiambattista instruction where a portion
of the defendant's interview with the police was not audio
recorded. We agree.
In DiGiambattista, 442 Mass. at 447, we held, "when the
prosecution introduces evidence of a defendant's confession or
statement that is the product of a custodial interrogation or an
interrogation conducted at a place of detention . . . , and
there is not at least an audiotape recording of the complete
interrogation, the defendant is entitled (on request) to a jury
instruction." We further determined that "the instruction is
appropriate for any custodial interrogation, or interrogation
conducted in a place of detention, without regard to the alleged
reasons for not recording that interrogation." Id. at 448.
 25
Although it would have been permissible for the prosecution to
raise as a justification for the incomplete recording the
defendant's affirmative request to cease recording, it "[did]
not obviate the need for a cautionary instruction." Id. at 449.
See Commonwealth v. Woods, 466 Mass. 707, 721 n.15, cert.
denied, 134 S. Ct. 2655 (2014) (defendant entitled to
DiGiambattista instruction "even where . . . the defendant
affirmatively requests that that the interview not be
recorded"). Thus, it was error for the judge to deny the
defendant's request for a DiGiambattista instruction.
Because the error was preserved, we must determine "whether
'the error did not influence the jury, or had but very slight
effect,'" and thus was nonprejudicial. Commonwealth v.
Christian, 430 Mass. 552, 563 (2000), quoting Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994). Applying this standard, we
conclude that the error was nonprejudicial. We have noted that
"the value of [a DiGiambattista] instruction is lessened where
. . . the defendant's statements, dubious as they may be, were
largely exculpatory." Woods, 466 Mass. at 721. Here, the
defendant's statement was at least partially exculpatory, as the
defendant claimed that he was not at the apartment at the time
of the murder, and only went to the apartment because Garcia
called him for a ride. In fact, the defendant's defense
strategy was, at least in part, dependent on the jury believing
26
his statement.10 Therefore, we conclude that the denial of the
DiGiambattista instruction constituted nonprejudicial error, and
thus does not warrant reversal.
4. Motions for a mistrial. The defendant contends that
the denial of his motions for a mistrial constituted error where
the jury were repeatedly exposed to inadmissible evidence.
Prior to trial, the defendant filed a motion in limine seeking
to prevent reference to his prosecution in a later Superior
Court case in Suffolk County involving some of the same
individuals involved in Castro's killing. The trial judge did
not explicitly rule on the motion after the prosecutor indicated
that she was not seeking to introduce the evidence. At trial,
when asked about another trooper's role in the investigation of
Castro's murder, Trooper LaBarge explained that he asked the
other trooper to compare the latent print found from the roll of
duct tape in Castro's apartment against "four individuals that
were arrested in the city of Boston." Defense counsel
immediately objected, requested to go to sidebar, and moved for
a mistrial, arguing that the testimony, at least by inference,
implicated the defendant. After a colloquy outside the presence
of the jury, the judge denied the motion, but indicated he would
10
A major theme of defense counsel's closing was the fact
that the defendant, unlike the other people involved, cooperated
with the police and gave a statement because the defendant did
not commit the crime, and had no idea that the guns he
previously delivered to Garcia would be used in the robbery.
27
strike the testimony from the record and give a curative
instruction.
Following the sidebar, the judge instructed the jury that
the trooper's testimony regarding four individuals being
arrested in the city of Boston was not evidence in the case as
it was struck from the record, and not for the jury to consider
"in any regard to this case." The judge further instructed:
"When an answer is stricken from the record, it doesn't
exist. When you determine what the facts are from the
case, you are sworn to determine those facts solely and
exclusively from the evidence presented in the case, and
you may never consider evidence anything that's been
stricken from the record."
Despite the judge's instruction, on the resumption of LaBarge's
direct testimony, in response to the prosecutor's question
regarding the fingerprints he asked the other trooper to
compare, LaBarge responded, "The four individuals I previously
spoke of." Again, defense requested a sidebar, and renewed his
motion for a mistrial. The judge again denied the motion,
struck the testimony, and gave a curative instruction. In his
instruction, the judge not only reminded the jury of his
previous instruction, he also reiterated that when an answer has
been struck, "it doesn't exist in the evidence, and you may not
consider it in anyway."
The defendant argues that LaBarge's testimony constituted
"prejudicial subsequent bad acts evidence" that carried the risk
28
of "distracting the jury from the main issue." The denial of a
motion for mistrial is reviewed for abuse of discretion.
Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990). Given the
trial judge's "broad discretion in deciding whether to declare a
mistrial," we have instructed that "'this court should defer to
that judge's determination of whether [there was] prejudicial
error, how much any such error infected the trial, and whether
it was possible to correct that error through instruction to the
jury.'" Commonwealth v. Amran, 471 Mass. 354, 359 (2015),
quoting Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). This
is because "[a] trial judge is in the best position to determine
whether a mistrial, an extreme measure available to a trial
judge to address error, is necessary, or whether a less dramatic
measure, such as a curative instruction, is adequate." Amran,
supra at 360.
Here, Trooper LaBarge's two references to "four individuals
that were arrested in the city of Boston" were improper.
Although the trial judge noted during the colloquy outside the
presence of the jury that the trooper's comment was "entirely
inappropriate," he also pointed out that the jury did not
actually learn that the defendant was arrested for home invasion
in Suffolk County. Nor were the jury ever made aware that the
defendant was prosecuted and served time in prison for the home
invasion. Thus, the judge ultimately determined that the error
29
could be cured by striking both responses and giving a "strong
cautionary instruction." See id. ("Where the judge promptly
struck the improper testimony and gave a highly specific
curative instruction, the judge acted appropriately and within
her discretion"). The curative instruction made clear that the
trooper's response was not evidence, and thus not to be
considered. Moreover, as the Commonwealth points out, the trial
judge previously had instructed the jury that the defendant "is
on trial for the indictments before the court, and those
indictments only." It is well settled that "[t]he jury are
presumed to follow the judge's instruction" to disregard the
evidence, id., and the record in this case does not suggest
otherwise. Accordingly, we conclude that the judge did not
abuse his discretion in denying the motions for mistrial.
5. The prosecutor's closing argument. The defendant
argues that certain remarks by the prosecutor during her closing
argument were prejudicial. "Remarks made during closing
arguments are considered in the context of the whole argument,
the evidence admitted at trial, and the judge's instructions to
the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).
a. Witness's "enhanced" hearing. The defendant first
contends that it was error for the prosecutor to argue that
Cedeno's hearing was enhanced because she was blindfolded.
According to the defendant, there were neither facts in evidence
30
nor expert testimony to support such a claim. Because the
defendant did not object to this statement at trial, we must
determine whether the statement was improper, and "if so whether
[it] created a substantial likelihood of a miscarriage of
justice." Commonwealth v. Fritz, 472 Mass. at 351, quoting
Commonwealth v. Gentile, 437 Mass. at 579-580.
"A prosecutor must limit comment in [the] closing statement
to the evidence and fair inferences that can be drawn from the
evidence" (citation omitted). Commonwealth v. Carriere, 470
Mass. 1, 22 (2014). Although "a prosecutor may argue zealously
in support of inferences favorable to the Commonwealth's case,"
the requirement that the inferences "reasonably may be drawn
from the evidence" remains. Id. Such was not the case here.
The record is devoid of evidence, much less expert evidence,
suggesting that Cedeno had enhanced hearing due to her temporary
blindfolding.
Although impermissible, we conclude that no substantial
likelihood of a miscarriage of justice arose from the
prosecutor's statement. We have observed, "[i]n [certain]
circumstances, [an] isolated remark does not warrant a new
trial. 'Excusable hyperbole is not a ground for reversal, and
the jury are presumed to have a certain measure of
sophistication in sorting out excessive claims on both sides.'"
Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010), quoting
31
Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004). Moreover, as
the Commonwealth points out, the prosecutor's enhanced hearing
statement was cumulative of other evidence suggesting that there
were four assailants present in the apartment with Cedeno and
Castro, including Cedeno's testimony that she knew four people
were present because she saw "feet walking around the
apartment." Last, when raising his objections to the
prosecutor's closing argument, defense counsel neither objected
nor requested a curative instruction on this ground. See
Commonwealth v. Ahart, 464 Mass. 437, 442 (2013) ("the absence
of any objection or request for a curative instruction by
experienced defense counsel is some indication that the comment
by the prosecutor could not have created a substantial
likelihood of miscarriage of justice").
b. Bite mark on the duct tape. The defendant next
contends that the prosecutor improperly argued that the
indentation in the duct tape found in the bathroom trash bin was
a bite mark. The Commonwealth argues that, based on the
evidence presented at trial, the jury reasonably could have
inferred that the indentation on the duct tape found in Castro's
bathroom was a tooth mark produced by someone who tore the tape.
We agree. Three pieces of evidence presented at trial support
our conclusion: (1) the end of the duct tape was torn, (2) the
presence of DNA was detected on the duct tape, and (3) saliva is
32
among the human biological fluids that provides a source of DNA.
Therefore, we conclude that no prejudicial error arose from the
prosecutor's statement.
c. Characterization of DNA testimony. The defendant last
argues that the prosecutor improperly equated the DNA statistics
of a 99.999 per cent match with the proof beyond a reasonable
doubt standard. We disagree. As pointed out by the trial
judge, a close reading of the record reveals that the
Commonwealth's remarks regarding the DNA statistics did not
equate reasonable doubt to a percentage. Rather, the
prosecutor's remarks focused on the certainty, described in
terms of percentages, of the defendant's DNA matching the major
profile in the DNA mixture on the piece of duct tape found in
the bathroom trash bin. Accordingly, the prosecutor's remarks
did not constitute error.
Even if the remarks were error, they did not create a
substantial likelihood of a miscarriage of justice. Here again,
that fact that defense counsel neither objected nor sought a
curative instruction provides some indication that the remarks
did not create a substantial risk of a miscarriage of justice.
See Ahart, 464 Mass. at 442. Indeed, in raising his objections
to the prosecutor's closing argument, defense counsel stated
that because of the way the prosecutor characterized the DNA
statistics, he did not believe it mischaracterized the
33
reasonable doubt standard, and thus did not object.
Additionally, the trial judge twice instructed the jury --
before and after closing arguments -- on the purpose of closing
arguments, noting they are an opportunity for the attorneys to
be zealous advocates for their respective clients, and
cautioning that the judge, not the attorneys, instruct on the
law that applies to the case. As we have observed, in cases
where "close questions arise whether the prosecutor has gone
over the line between fair and improper argument," we recognize
that "closing argument is identified as argument, the jury
understands that, instructions from the judge inform the jury
that closing argument is not evidence, and instructions may
mitigate any prejudice in the final argument." Commonwealth v.
Kozec, 399 Mass. 514, 517 (1987).
6. Relief pursuant to G. L. c. 278, § 33E. We have
conducted a complete review of the record pursuant to G. L.
c. 278, § 33E, and we discern no basis to grant relief. The
defendant argues that we should exercise our powers under § 33E
to reduce his murder in the first degree conviction to a
conviction of manslaughter or murder in the second degree. In
support of this request, the defendant points out that during
trial, the Commonwealth, for the second time, offered him a plea
to the lesser included offenses of manslaughter with a term of
imprisonment of from fifteen years to fifteen years and one day,
34
which the defendant declined. That the Commonwealth offered the
defendant a plea arrangement does not provide grounds on which
to grant relief pursuant to § 33E and "is irrelevant to our
inquiry." Commonwealth v. Cintron, 435 Mass. 509, 525 (2001),
overruled on another ground by Commonwealth v. Hart, 455 Mass.
230, 242 (2009). Thus, the defendant's argument is unavailing,
and we decline to exercise our power pursuant to § 33E on this
ground.
Judgments affirmed.