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SJC-10873
COMMONWEALTH vs. THOMAS EVANS.
Middlesex. November 8, 2013. - October 20, 2014.
Present: Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ. 1
Homicide. Robbery. Felony-Murder Rule. Malice. Practice,
Criminal, Capital case, Required finding, Argument by
prosecutor. Evidence, Consciousness of guilt, Expert
opinion. Witness, Expert. Deoxyribonucleic Acid.
Indictments found and returned in the Superior Court
Department on October 15, 2007.
The cases were tried before Raymond J. Brassard, J.
Leslie W. O'Brien for the defendant.
Fawn D. Balliro Andersen, Assistant District Attorney (John
C. Verner, Assistant District Attorney, with her) for the
Commonwealth.
DUFFLY, J. The defendant was indicted for the armed robbery
and murder of Paula Doherty. The victim was last seen alive on
Saturday, September 30, 2006, at her Medford residence, where
she, a friend, the defendant, and the defendant's nephew had been
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
using cocaine. When the friend left at 5:30 P.M. that afternoon,
the defendant had passed out in a chair in the victim's room and
the victim was preparing to go to sleep. On Monday, October 2,
after the victim failed to return telephone calls, the friend
went to the victim's house to check on her, and discovered the
body of the victim, who had been beaten to death. A Superior
Court jury found the defendant guilty of murder in the first
degree on theories of extreme atrocity or cruelty and felony-
murder, with armed robbery as the predicate felony.
On appeal, the defendant contends that the trial judge erred
in denying his motions for a required finding of not guilty,
because the circumstantial evidence of guilt was insufficient to
establish that the defendant was at the scene of the crime during
the period when the victim was robbed and killed. The defendant
argues also that the judge erred in allowing the admission of
expert testimony concerning the potential absence of blood on the
victim's killer. We conclude that there was no error requiring
reversal and, after a careful review of the record, that there is
no reason to exercise our authority under G. L. c. 278, § 33E, to
order a new trial or to reduce the conviction to a lesser degree
of guilt.
1. Facts. Based on evidence introduced at trial, the jury
could have found the following.
a. Events of September 28 to 30, 2006. The victim sold
3
cocaine from her residence, including to the defendant, who lived
two or three houses away. On Thursday, September 28, 2006, at
the victim's request, the defendant and his nephew, Sean Kanode,
drove the victim to a bank where the defendant cashed a check in
the amount of $1,100, and handed the cash to the victim. 2
The following day, Friday, at about 6 P.M., the victim's
childhood friend, Jean McCarthy, arrived at the victim's home in
Medford, where they planned to use cocaine, consume alcohol, and
play cards. The victim had been in the process of renovating the
house, and although there was electricity, there was no running
water, some windows were missing, and some walls were torn down.
Tools were scattered throughout the interior, including saws,
drills, hammers, and crowbars. The victim led McCarthy to a back
room, which the victim had set up as her living space. The bed,
consisting of two mattresses on the floor, piled on top of each
other, was in a corner, with one side flush along a wall and a
chair at its foot. When McCarthy arrived, the defendant and
Kanode were present. The four spent the rest of that evening and
the early morning hours of Saturday drinking, using cocaine, and
playing cards; McCarthy gave the victim $50 for some cocaine,
which the victim put into her pants pocket ; the victim kept
2
The defendant, with his wife, his two sons, and his
nephew, Sean Kanode, lived two or three houses down the street
from the victim.
4
cocaine in another pocket. Kanode left at approximately 5 A.M.
on Saturday morning, but the others stayed until late in the
afternoon.
Over the course of that period, a number of people arrived
at the house in order to purchase cocaine, after telephoning the
victim to arrange the transaction. While some transactions took
place elsewhere in the apartment, at least three people came into
the back room to conduct the transaction. Each of the three paid
in cash, which the victim placed in her pants pocket. The
defendant was present for each transaction that took place in the
back room. At no point during the period from Friday evening
through the late afternoon on Saturday did McCarthy see the
defendant with any money, although at some point on Saturday the
defendant left and returned a short time later with an antique
clock to trade for money or drugs. At approximately 5:30 P.M. on
Saturday afternoon, as McCarthy was preparing to return to her
home, the defendant appeared to be passed out in the chair at the
foot of the victim's bed, and the victim was lying down and
seemed sleepy. As she left, McCarthy told the victim to get up
and lock the door behind her, and the victim did so.
Soon after McCarthy left, Barbara Welch, one of the victim's
customers from the previous night, began to call the victim on
her cellular telephone, but was unable to reach her. A call
Welch placed to the victim's telephone around 6 P.M. was answered
5
by a male; when Welch asked him if "Paula" was there, he
responded that she was asleep. On Sunday, October 1, Welch tried
to telephone the victim many times, but there was no answer, and,
contrary to her usual practice, the victim did not return Welch's
calls.
b. Discovery of victim's body. On the evening of Monday,
October 2, after the victim had failed to return telephone calls
placed the previous day, McCarthy went to the victim's house to
check on her. McCarthy found the porch door standing open, the
front door to the house unlocked, and the victim dead in the back
room. Her body was partially on the bed. Everything else
appeared to be almost exactly as it had been when McCarthy left
the previous Saturday at 5:30 P.M. Responding police officers
observed that the victim was lying diagonally across the
mattress, face down, with her head towards the corner of the room
and her left shoulder resting on the floor . After an initial
sweep to secure the house, police contacted emergency medical
services.
c. Police investigation. At approximately 5 A.M. on
Tuesday morning, police began a canvass of the neighborhood.
Later that morning, State Trooper Michael Banks observed the
defendant and Kanode sitting on the front steps of their house a
few doors away. Banks and other officers asked the two whether
they had seen anything unusual at the victim's home, and they
6
replied in the negative. The following day, after police
interviewed McCarthy, Banks returned to the defendant's house and
asked him if he would speak with police. The defendant and
Kanode drove to the police station and were interviewed.
i. Defendant's first statement. The defendant told police
that he knew the victim because she lived down the street, and
that he had purchased cocaine from her in the past. He recently
had relapsed and had gone to her house on Saturday, where he had
stayed from approximately 8:30 A.M. until about 2 or 3 P.M. He
brought an antique clock to the victim's house, for which he
received $30 that he used to purchase an "8-ball" of cocaine, and
left when he had run out of money to purchase additional cocaine.
The defendant then walked to a nearby park to consume his
remaining cocaine, returned home, and went to bed.
ii. Events at the James Street house. After comparing the
defendant's statement with that of his nephew, police subpoenaed
the telephone records for the defendant's landline in order to
look for an incoming call that Kanode said the defendant made on
Sunday night, October 1. Police determined that he had made the
call from Peter Milonopoulos's landline telephone at his house on
Pearl Street in Somerville. Milonopoulos testified that he had
seen the defendant arrive at the house of his friend, Michael
Wolfe, who lived around the corner on James Street, at 9 P.M. or
10 P.M. on Saturday, September 30.
7
The James Street house was the home of Gary Young, Wolfe's
uncle and a longtime friend of the defendant, and Young's girl
friend, Madeline Osborne, and also was a "crack house" where
people gathered to purchase and use drugs, including "crack"
cocaine. Wolfe, who had been released from jail at 7:05 P.M.
that evening and arrived home approximately forty minutes later,
testified that the defendant had arrived at the James Street
house after 8:30 P.M. 3 Young and Osborne said that the defendant
was at their house twice on Saturday, once earlier in the day,
while it was still light out, and then later that night. 4
Osborne said that the defendant returned sometime between 11 P.M.
and midnight; he appeared a little shaky and nervous, and told
everyone in the house that if anyone came looking for him, he was
not there.
The defendant told Young that he had been working that day
and that he cut his finger while cleaning gutters. Young thought
the defendant's pants appeared dirty and "painted," and that the
3
In testimony admitted only for purposes of impeachment, a
police officer stated that Wolfe had told police that the
defendant arrived at 10 or 10:30 P.M.
4
Young was asleep when the defendant arrived the first
time, and, by the time of trial, he could not recall the time of
the defendant's arrival on either occasion. On redirect
examination, Young affirmed that he had testified at a prior
proceeding that the defendant was at his house twice, first
arriving at 4 or 5 P.M. and staying for an hour or two, and then
returning when it was dark out, at approximately 10 or 10:30 P.M.
8
defendant might have wiped the blood from the cut onto his
pants. 5 At some point during the night, the defendant asked
Young if he could borrow some clothes because his were dirty.
Although the defendant was not seen with more than $40 while he
was at the victim's house from Friday evening through Saturday at
5:30 P.M., he had cocaine and a considerable amount of cash when
he arrived at the James Street house. In total, witnesses at the
house observed the defendant spend hundreds of dollars, making at
least two purchases of cocaine during the evening of Saturday,
September 30, and into the early morning hours of Sunday, October
1. 6
At some point, the defendant asked Osborne to wash the
clothes he had been wearing when he arrived and some other
laundry he had with him. 7 During the day on Sunday, Osborne took
the clothes the defendant had been wearing, as well as two of his
shirts and a pair of pants, some clothes belonging to Young, and
some of her own clothes, to a nearby laundry. She saw a maroon
5
No one else at the James Street house testified to
observing anything unusual about the defendant's clothing; all
other witnesses who were present at the James Street house said
that they saw no blood on the defendant's clothes.
6
The defendant also left the house in an unsuccessful
effort to find a prostitute.
7
In his second statement to police, the defendant denied
asking Osborne to do his laundry, but said that she offered to do
it for him. Young testified that he had asked Osborne to do the
defendant's laundry.
9
stain on one pair of pants. In the ten to fifteen years that
they had known each other, the defendant had not previously asked
her to do his laundry.
iii. Defendant's second statement. On the evening of
October 6, 2006, police again requested that the defendant come
to the police station; the defendant agreed to be interviewed,
was given Miranda warnings, and agreed to having the interview
tape recorded. 8 The defendant told police that after leaving the
victim's house on Saturday afternoon sometime between 2 and 3
P.M., he went to Young and Osborne's James Street house. 9 He
shared "a little pot" with others at the house, and "mooched
drugs from" others. At some point in the early morning hours of
Sunday, October 1, he fell asleep at the James Street house,
after using some heroin provided by Young. Late Sunday night,
the defendant called his son to come pick him up. Lacking a
vehicle to use, the defendant's son and Kanode came to meet him,
and the three of them walked back to their home.
d. Trial proceedings. i. Forensic evidence. The
Commonwealth's forensic pathologist, Dr. Phillip Robert Croft,
who conducted the autopsy, determined that the cause of the
8
A redacted transcript of the defendant's statement was
introduced in evidence at trial.
9
Kanode testified that walking from the victim's house to
James Street would take "maybe about half an hour, forty minutes
maybe."
10
victim's death "was blunt force injuries of the head with skull
fractures and brain contusions." The victim suffered fourteen
abraded lacerations to the back and top of her head; the injuries
were caused by blows that could have numbered up to fourteen,
depending on the object with which the victim was struck. The
victim had wounds to the back of her hands that were consistent
with a person "trying to protect themselves or ward off blows."
In Croft's opinion, it was equally possible that the victim was
killed on Saturday or Sunday, but it was not likely that the
death occurred later than very early Monday morning.
A State police criminalist who assisted in processing the
crime scene observed and made a chart of nine damaged or dented
areas ("impact areas") located on the wall above the victim. The
impacts were located in an circular area of approximately one
square foot. Red-brown stains were observed in seven of the
impacts. In the criminalist's opinion, the damage was caused by
an object hitting the wall. No bloodstains were observed either
leading out of the bedroom or in the hallways and areas exiting
the dwelling. The blood and blood spatter was focused in the
corner of the room where the victim's body was found. There was
what appeared to be brain matter on the victim's pillow.
According to Detective Lieutenant Kenneth F. Martin, the
Commonwealth's bloodstain pattern analyst, the bloody event took
place in the corner near the mattress. Martin opined that,
11
depending on the weapon used, the direction in which the weapon
struck the point of impact, and the position of the victim, there
would not necessarily be any resulting impact blood spatter or
cast-off from the weapon on the perpetrator. The victim was
found in what Martin called a "well" between the mattress and the
wall, which would restrict outward radiation of the blood.
Martin described bloodstains on the wall above the mattress
indicating that the victim's body had been in that area and
created a stain while sliding downward, ultimately resting as the
body was found. The instrument used to inflict the wounds was
narrow, approximately one inch or one and one-half inches in
width.10
Although another cellular telephone was found at the scene,
police were unable to locate the cellular telephone belonging to
the victim that Welch and others had been calling that weekend.
According to records from the victim's telephone service
provider,11 the last activity posted for that cellular telephone
10
The criminalist also testified about the jeans the victim
was wearing, noting that there were several stains on the
interior and exterior, in front and in back, including red-brown
stains, dirt stains, fecal material, and some debris on the
interior that appeared to be dandruff or skin flakes. Kanode
testified that the victim "always had the same outfit on,"
"always the same jeans," and never took showers. The criminalist
noted fibers, dirt, and other debris on the victim's fingernail
clippings.
11
Police obtained a search warrant permitting access to
voicemail messages for the victim's cellular telephone number;
12
was on Saturday, September 30, 2006, at 8:25 P.M.12
The clothing the victim had been wearing was examined by a
technician in the office of the medical examiner. No currency
was found in the pockets of the victim's jeans, or anywhere
amongst her personal possessions. The Commonwealth's
deoxyribonucleic acid (DNA) expert, Cailin Drugan, who conducted
an analysis of DNA recovered from inside the pockets of the
victim's jeans, testified that the major DNA profile in all four
of the pockets matched the DNA profile of the defendant.13 She
also testified that it was probable that the major profile was
the result of a primary transfer, meaning that the contributor
made direct contact with the inside of the victim's pockets.
those messages indicate that numerous calls were placed from
9:06 P.M. on Saturday, September 30 through Tuesday, October 3,
by people trying to reach the victim.
12
That particular cellular telephone service provider does
not record any calls placed to a given telephone number if the
handset is turned off, the battery wears out, or the phone is
destroyed.
13
The deoxyribonucleic acid (DNA) analysis was conducted
using the Y-STR method, which is "commonly used in situations
such as that here, where there is a large amount of female DNA
and potentially only a small amount of male DNA." Commonwealth
v. Bizanowicz, 459 Mass. 400, 406 n.9 (2011), citing Commonwealth
v. Linton, 456 Mass. 534, 543 & n.8 (2010). Y-STR testing is
based on comparing allele frequencies at sixteen loci on the Y-
chromosome, as compared to STR-testing, which involves allele
frequency at fifteen loci on several different chromosomes.
Because Y-STR testing is limited to the Y-chromosome, and men in
the same paternal line each have the same Y-chromosome, Y-STR
testing cannot discriminate among members of the same paternal
line. The defendant's nephew, Kanode, the son of his sister, was
not a member of the defendant's paternal line.
13
The defendant's motions for a required finding of not guilty
at the close of the Commonwealth's case and at the close of all
the evidence were denied. After the jury convicted the defendant
of armed robbery and murder in the first degree on theories of
felony-murder and extreme atrocity or cruelty, the judge
dismissed the armed robbery conviction as duplicative. Because
the defendant was convicted of murder on both theories of murder
advanced by the Commonwealth, the conviction of armed robbery
should not have been dismissed. See Commonwealth v. Felder, 455
Mass. 359, 370-371 (2009), citing Commonwealth v. Brum, 441 Mass.
199, 200 n.1 (2004) ("Where, as here, the conviction of murder is
based on a theory in addition to the theory of felony-murder, the
conviction of the underlying felony stands").
2. Discussion. The defendant argues that the evidence was
insufficient for the jury to convict him on either theory of
murder advanced by the Commonwealth, and that his motions for a
directed verdict should have been allowed. He argues also that
the admission of certain testimony by the Commonwealth's blood
spatter expert requires a new trial, because the testimony
erroneously invaded the province of the jury. We conclude that
the evidence was sufficient to support both of the Commonwealth's
theories, and that there was no error in the admission of the
expert's testimony. In addition, in our review pursuant to G. L.
c. 278, § 33E, we note an error not raised by the defendant; we
14
conclude that certain portions of the prosecutor's closing
argument were impermissible because they were not based on
evidence admitted at trial, but that the improper argument did
not create a substantial likelihood of a miscarriage of justice.
a. Sufficiency of the evidence. The defendant contends
that the evidence introduced was not sufficient to establish his
presence at the victim's house at the time she was killed; that
others who were present to purchase drugs on the evening of
Friday, September 29, and the early morning hours of Saturday,
October 1, had equal motive and opportunity to rob the victim;
that the method of the killing was more consistent with a motive
other than robbery; and that the victim's former boy friend, with
whom she had a conflict, would appear to have had such a motive.
In considering whether the evidence was sufficient to
support a conviction,
"[t]he standard we apply is whether, after viewing the
evidence in the light most favorable to the Commonwealth,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979),
quoting Jackson v. Virginia, 443 U.S. 307, 318–319 (1979).
Circumstantial evidence alone may be sufficient to meet the
burden of establishing guilt. Commonwealth v. Nolin, 448
Mass. 207, 215 (2007). Commonwealth v. Rojas, 388 Mass.
626, 629 (1983). Indeed, the Commonwealth may submit a case
wholly on circumstantial evidence, and inferences drawn from
that evidence 'need only be reasonable and possible; [they]
need not be necessary or inescapable.' Commonwealth v.
Merola, 405 Mass. 529, 533 (1989), quoting Commonwealth v.
Beckett, 373 Mass. 329, 341 (1977). Where conflicting
inferences are possible from the evidence, 'it is for the
jury to determine where the truth lies.' Commonwealth v.
15
Martino, 412 Mass. 267, 272 (1992), quoting Commonwealth v.
Wilborne, 382 Mass. 241, 245 (1981)."
Commonwealth v. Woods, 466 Mass. 707, 712-713, cert. denied, 134
S. Ct. 2855 (2014).
Under the theories of murder advanced by the Commonwealth,
it was required to prove that the defendant unlawfully killed the
victim either with extreme atrocity or cruelty or in the course
of committing a felony. Because the jury convicted the defendant
on both theories, evidence supporting either theory would suffice
to affirm the verdict. Commonwealth v. Whitaker, 460 Mass. 409,
416-417 (2011), citing Commonwealth v. Hensley, 454 Mass. 721,
734 n.9 (2009). The evidence presented was sufficient to support
both theories.
i. Felony-murder. To prove that the defendant was guilty
of felony murder, the Commonwealth was required to establish that
the defendant committed a homicide during the commission of a
felony, here, armed robbery. See Commonwealth v. Stewart, 460
Mass. 817, 821 (2011). "It would be enough that the homicide[]
occurred as part of the defendant's effort to escape
responsibility for the underlying felony." Id., quoting
Commonwealth v. Ortiz, 408 Mass. 463, 466 (1990).
The evidence presented would have permitted a rational trier
of fact to find, beyond a reasonable doubt, that the defendant
killed the victim during an armed robbery. The jury could have
16
found that the defendant was aware that the victim possessed a
large amount of cash, which she kept in the pockets of her jeans,
along with a supply of cocaine. On September 28, the defendant
cashed a check for the victim in the amount of $1,100, and was
present when three people, during the evening of September 29,
gave the victim cash that she put into her pants pockets. After
an initial purchase of cocaine, the defendant was not seen with
any money during the approximately twenty-four-hour period that
he was at the victim's home ingesting cocaine provided by the
victim and others. This evidence is sufficient to establish the
defendant's motive to rob the victim. See Commonwealth v. Lao,
443 Mass. 770, 780 (2005) (evidence sufficient based on evidence
of motive to kill coupled with identification of defendant
standing, at approximate time of killing, outside residence where
wife was killed).
The evidence also allowed a rational jury to infer that the
defendant had the means (one of the tools lying around the
victim's house) and opportunity to kill the victim. Based on the
testimony of the forensic pathologist who conducted the autopsy,
the victim likely died on Saturday, September 30, or Sunday,
October 1. The last witness to have seen the victim alive saw
her at approximately 5:30 P.M. on September 30, when the witness
left the victim alone with the defendant. The jury reasonably
could have inferred that the victim was killed within the three-
17
hour time frame between 5:30 P.M., when McCarthy left the
victim's house, and 8:25 P.M., when the last activity for the
victim's cellular telephone was posted and the victim ceased
responding to calls. When Welch, who did not know the defendant,
attempted to telephone the victim around 6:00 P.M., the call was
answered by a male who told Welch that the victim was asleep.
Based on this, the jury could have inferred that the defendant
hit the victim repeatedly in the head when she woke up
unexpectedly as he was reaching into her pockets to take the cash
and cocaine. Cf. Commonwealth v. Fitzpatrick, 463 Mass. 581, 593
& n.21 (2012) (evidence established that fatal shots fired
shortly before 8:00 A.M.; based on reasonable inferences, jury
could have concluded that defendant had driven distance from his
home to location of shooting shortly before 8:00 A.M., providing
evidence of opportunity, and that he had taken gun from victim's
house).
Witnesses present at Young's James Street house differed
about when the defendant was there. While a number of witnesses
testified that the defendant was at the house after 9 P.M., none
of the witnesses saw the defendant present at Young's house
throughout the period from 2 or 3 P.M. to 9 P.M. on September 30.
Several witnesses said that the defendant was at Young's house
sometime in the afternoon, arriving around 4 or 5 P.M., and
staying for one-half hour to an hour before leaving and returning
18
later in the evening. Others testified that the defendant only
arrived sometime after 9 P.M. According to Wolfe, who arrived
around 8 P.M., after his release on bail, the defendant arrived
after he did.
The jury took a view and traveled the distance between the
victim's house and Young's house; they also heard testimony that
walking between the houses took approximately thirty to forty
minutes. The jury could have considered this evidence, along
with evidence that some of the DNA in the victim's pockets
matched the defendant's, that there was no money in any of the
pockets when the victim's body was found, and that the defendant
was in sudden possession of a large amount of cash, to infer that
the defendant remained at the victim's house after McCarthy left;
the victim, who has been sleepy, fell asleep; and, sometime
between 5:25 and 8:25 P.M., the defendant reached into the
victim's pockets and robbed her.
ii. Extreme atrocity or cruelty. To convict a defendant of
murder in the first degree on a theory of extreme atrocity or
cruelty, the jury must consider the Cunneen factors and determine
that the manner of the killing met one or more of them: "(1)
whether the defendant was indifferent to or took pleasure in the
victim's suffering; (2) the consciousness and degree of suffering
of the victim; (3) the extent of the victim's physical injuries;
(4) the number of blows inflicted on the victim; (5) the manner
19
and force with which the blows were delivered; (6) the nature of
the weapon, instrument, or method used in the killing; and (7)
the disproportion between the means needed to cause death and
those employed." Commonwealth v. Linton, 456 Mass. 534, 546 &
n.10 (2010), citing Commonwealth v. Cunneen, 389 Mass. 216, 227
(1983).
The evidence here was sufficient to support the defendant's
conviction of murder on a theory of extreme atrocity or cruelty
because there were sufficient facts from which the jury
reasonably could infer that at least one of the criteria
established in Commonwealth v. Cunneen, supra, were met. The
forensic pathologist testified that the victim suffered at least
fourteen blows to the head, and other evidence indicated that at
least some of the blows were delivered with so much force that
there was brain matter on the victim's pillow. Defensive wounds
indicated that the victim attempted to ward off those blows with
her hands, and blood spatter evidence suggested that she had been
sitting up when the blows were delivered, and then slid down the
wall at some point. Thus, the victim was conscious, and the jury
could conclude that she endured great suffering as she was beaten
to death.
iii. Consciousness of guilt. The Commonwealth argued that
the defendant's actions and his inconsistent statements after the
20
victim was killed showed consciousness of guilt.14 "In
conjunction with other evidence, a jury may properly consider
actions and statements of a defendant that show a consciousness
of guilt." Commonwealth v. Woods, 466 Mass. 707, 715 (2014),
quoting Commonwealth v. Rojas, 388 Mass. 626, 629 (1983). See
Commonwealth v. Best, 381 Mass. 472, 483 (1980); Commonwealth v.
Montecalvo, 367 Mass. 46, 52 (1975). The jury reasonably could
have concluded that a number of the defendant's statements
indicated consciousness of guilt.
In his initial, unrecorded statement to police on October 3,
2006, the defendant asserted that he had been at the victim's
14
The judge did not instruct on consciousness of guilt. The
prosecutor initially requested an instruction on consciousness of
guilt, and the judge, while expressing some hesitation about
giving the instruction in the circumstances of this case,
provided a copy of the instruction that she generally gave, which
the prosecutor suggested placed too great a burden on the
Commonwealth. Defense counsel objected to any instruction on
consciousness of guilt, maintaining that the defendant's
statements were equivocal, not false, and therefore not
indicative of consciousness of guilt. Ultimately, both defense
counsel and the prosecutor requested that the judge not provide
the instruction. The judge noted that the prosecutor could argue
in closing concerning inconsistencies in the defendant's
statements.
Absent a request for an instruction on consciousness of
guilt, the decision whether to give such an instruction is left
to the sound discretion of the trial judge. See Commonwealth v.
Simmons, 419 Mass. 426, 435-436 (1995). We have said that the
better practice is to allow counsel to decide, as a matter of
trial tactics, "to discuss evidence suggesting consciousness of
guilt in closing arguments or simply to leave it for the jury's
reflection unadorned by comment either by them or the judge."
Id.
21
house on September 30, consumed cocaine with her beginning at
about 8:30 A.M., and left at approximately 2 or 3 P.M.15 He then
took a walk on a specific route he described to police, which
included a park, during which he consumed a single remaining gram
of cocaine in his possession. After he consumed the cocaine, it
was night and he returned home and went to bed. At that point,
he had no money and no energy, following three days of drug use,
and stayed home Sunday and Monday. The defendant did not make
any reference to his trip to James Street. A number of these
statements were inconsistent with the defendant's later
statements to police, and with the testimony of other witnesses.
During his second interview at the police station, the
defendant told police that, after he had been "partying" for two
days at the victim's house, from Friday into Saturday, his son
and nephew came to the victim's house looking for him, sometime
between 2 and 3 P.M.;16 and after they had gone, he left, walking
a particular route to a location with a wooden tower, where he
15
The defendant denied ever seeing the victim engage in any
drug transactions while he was at her house; he said she
conducted her business in the hallway, outside his view.
McCarthy, however, testified that while some transactions took
place at the front door, at least three individuals came to the
back room to purchase cocaine from the victim, and the defendant
was present on those occasions.
16
Kanode testified that when the defendant had not returned
after being out all night on Friday, he and the defendant's son
went to the victim's house looking for the defendant, but did not
find him there, and left.
22
ingested a gram of cocaine. He then walked into Somerville. He
had no money to get more cocaine,17 so he went to the homes of
several friends, ending up at the home of a friend named Gary,
where he "mooched" drugs provided by others throughout the night,
finally using heroin provided by Gary, fell asleep, and slept
there all day Sunday. The defendant said that when he woke up
Sunday it was dark and he was hungry and cold; he used someone
else's cellular telephone to call his son, telling him he was
walking home and would meet him on the way. The defendant, his
son, and his nephew met up and walked home together.
As stated, other testimony at trial did not accord with the
defendant's assertions regarding the time of his arrival at the
James Street residence and his statement that he had had very
little money with him at the James Street house and could not
afford to purchase any drugs. Contrary to the defendant's
statements, several witnesses testified that the defendant did
not arrive at the James Street residence until well after 9 P.M.
No witness testified to seeing the defendant there between 6 and
8:30 P.M., including Young, the victim's childhood friend.
17
The defendant said that he had no drugs when he arrived at
Gary's house, and denied having a lot of money when he arrived
there. Although witnesses differed in their estimates of the
amount, with some estimating $60 and others upwards of $500, all
of the witnesses described the defendant's repeated purchases of
cocaine with cash he had with him, as well as his spending cash
on other items or giving others cash to make purchases.
23
Several witnesses testified to the defendant's purchases of
cocaine after his arrival at the James Street house; his leaving
the house to purchase more cocaine, which he brought back to the
house; and, on one occasion, his trip into Boston in an attempt
to locate a prostitute. Moreover, telephone records indicate
that, at 11 P.M. on Sunday night, a call was made to the
defendant's house from a landline telephone number assigned to
Milonopoulos's residence, and not from an unidentified cellular
telephone. Thus, the jury could have viewed the defendant's
statements to police as an attempt to conceal his whereabouts
from 5:30 to 8:25 P.M. on Saturday evening, and to deflect police
attention from his possession of large amounts of cash. See
Commonwealth v. Woods, 466 Mass. 707, 715-716 (2014). On that
basis, the defendant's statements properly "could be seen as an
attempt to hamper the police officers' investigation by
preventing them from locating witnesses." See id. at 715.
In sum, the evidence supports the reasonable inference that
it was the defendant who answered Welch's telephone call and then
attempted to rob the sleeping victim of the cash and cocaine in
the pockets of her jeans; that she was awakened by this action
and sat up on the mattress to confront the defendant; that the
defendant at some point picked up a crowbar or similar implement
from among the tools lying around the house, and used it to
strike the victim in the head as she turned away from the blows
24
toward the wall, raising her hands in an effort to protect
herself. Based on the DNA evidence, the jury could have inferred
that the defendant reached into at least three of the victim's
pockets. The jury also reasonably could have inferred that the
defendant took the victim's cellular telephone, which police were
unable to locate, and disposed of it and the murder weapon, which
was also never located, as he walked from the victim's Fellsway
residence to the James Street residence of his friends Young and
Osborne, where he arrived sometime after 9 P.M., flush with cash
and in possession of cocaine.
The defendant contends that this case is like Commonwealth
v. Mazza, 399 Mass. 395, 399 (1987), in which we held that the
circumstantial evidence was insufficient to convict the defendant
of murder. In that case, the defendant went to a restaurant
where he planned to meet the victim. The victim's body was
discovered about an hour later, lying facedown in a vehicle
parked in the restaurant lot. Id. at 396. Although
acknowledging evidence of the defendant's presence at the crime
scene "together with the evidence of motive and consciousness of
guilt," id. at 398, we noted also that there was no evidence of
the time of death, or evidence that the particular vehicle had
been in the restaurant parking lot when the defendant arrived, or
that the defendant had had a gun when he entered the parking lot.
Id. at 399.
25
The facts in that case differ significantly from the
circumstances here. As in Commonwealth v. Mazza, supra, the time
of the victim's death was uncertain, others could have had means,
motive, and opportunity to kill her, and the evidence was almost
entirely circumstantial. The theory of the defense was to point
to other possible perpetrators who might have entered the
victim's room, including the victim's former boy friend, who had
been convicted of an assault and battery against her and who had
been ordered to keep away from her house, and a real estate
broker and business associate of the victim to whom she owed
substantial amounts of money. Nonetheless, the evidence in this
case established that the defendant was the last person seen with
the victim, in the bedroom of her locked apartment, and that he
had the opportunity to commit the crime during the approximately
three-hour window thereafter before the victim's cellular
telephone ceased accepting calls. In addition, DNA matching the
defendant's was found in the victim's pockets and, along with his
sudden possession of a large amount of cash, and the absence of
any cash on the victim's person where she normally kept it, is
sufficient for the jury to have found that the defendant robbed
and killed her.
b. Expert testimony on blood spatter. The defendant claims
error in the admission of testimony by Martin, the blood spatter
expert, over the defendant's objection, that there would "not
26
necessarily" be any blood found on the victim's assailant. The
defendant argues that this line of questioning did not aid the
jury because they could have understood the evidence without the
expert testimony, and that the testimony culminated in a
conclusion by the expert that invaded the province of the jury.18
We review a judge's decision concerning the admission of expert
testimony for abuse of discretion. Commonwealth v. Federico, 425
Mass. 844, 847 (1997). Commonwealth v. Colin, 419 Mass. 54, 59
(1994). Where the error is preserved, we consider whether the
admission was harmless error. Commonwealth v. Federico, supra at
852.
Expert testimony "is admissible whenever it will aid the
jury in reaching a decision, even if the expert's opinion touches
on the ultimate issues that the jury must decide." Commonwealth
18
Following this line of questioning, in response to the
prosecutor's question as to the meaning of the phrase "absence of
evidence is not evidence of absence," Martin testified that "the
fact that I don't have any evidence resulting from a crime, isn't
necessarily the fact that I wasn't there, doesn't relate to the
fact that [I] wasn't at the scene." The defendant objected, on
the ground that the expert's reply was more in the nature of
argument, and the judge ordered the question and response struck.
The defendant argues that, notwithstanding the judge's
instruction striking both the question and the response, both
must be considered along with the rest of the challenged
testimony because the judge's instruction to "disregard" the
question and the answer underscored that testimony. Because
there was no error in the admission of the remaining testimony,
the judge's instruction to disregard adequately addressed the
defendant's objection to the single improper exchange.
27
v. Dockham, 405 Mass. 618, 628 (1989), quoting Simon v. Solomon,
385 Mass. 91, 105 (1982). There was no abuse of discretion in
the decision to permit Martin's testimony.
Martin explained to the jury that blood stain analysis or
blood spatter analysis is "the study of blood once blood leaves
the body and a force has acted on it." He explained further
that, if a strike with a weapon is of sufficient force to break
the skin, blood from the wound would be projected in a certain
direction, based on the rules of physics. He testified that in
the area of bloodstain pattern analysis, it is generally accepted
that if a person is struck and the skin is lacerated, a
subsequent strike would result in projected blood and there would
potentially be cast-off from the blood found on the implement.
When the implement is brought back, as a result of centrifugal
force, blood is projected off the weapon and onto a surface such
as a wall. Demonstrating, Martin testified that the shape of the
tails on the blood stains would be different depending on the
manner in which the implement was swung.
The prosecutor asked Martin, without objection, whether, if
there were cast-off, "it necessarily mean[s] that the person
swinging the implement is going to get cast-off onto them?" to
which Martin replied, "Not all the time. No, sir." Martin
explained that the type of weapon used and the shape of the
implement would dictate how the blood was distributed, and that
28
it also would depend on the direction in which someone swung the
weapon and the position of the victim; Martin demonstrated
different directions of strike and the resulting direction of
projection. Martin then described the victim's bedroom and the
observed bloodstains, concluding that "the bloody event itself
took place in [the] corner by [the] mattress in the southwest
corner of the room." Over defense counsel's objection, the
prosecutor asked: "Based on your training and experience and
education in the field of bloodstain analysis, would you expect
to see blood in this situation that you described on the
perpetrator? . . . [W]ould you expect to see any type of impact
spatter or cast-off on the perpetrator of the crime?" Martin
answered, "Not necessarily."19
Although the defendant argues that the expert testimony was
not necessary and the jury could have understood the evidence
without such testimony, Martin's explanation regarding cast-off
spatter could have assisted the jury in understanding the various
19
Asked to elucidate, Martin repeated that it would depend
on how the weapon was being wielded, its shape, the location of
the victim, and how close to the victim the perpetrator was
standing when the victim was struck. He explained that "[f]or
example, if the victim, as in the case here, is in what I would
call a well between a mattress and a wall," that would restrict
the blood, which would "radiate out" and ultimately "fall to the
ground," and that any physical condition, such as blankets,
pillows, or anything else, could act as a curtain. He said that
he had observed no cast-off spatter on the ceiling of the
victim's room, or on the other side of the mattress.
29
directions in which blood may travel after a person is struck
with an instrument. Without this explanation, the jury might
have believed, for example, that the perpetrator of such an
attack will always end up covered with blood spatter. Cf.
Commonwealth v. Federico, supra at 851 (in case involving child
sexual abuse where there is no evidence of physical injury, "a
medical expert may be able to assist the jury by informing them
that the lack of such evidence does not necessarily lead to the
medical conclusion that the child was not abused"). Martin did
not opine whether the perpetrator in this case would have had
cast-off blood on his person. Rather, Martin testified to
observations he made at the scene, and explained the variables
that could affect whether cast-off might be found on a person
wielding a weapon and striking another in a position similar to
that in which the victim was found.
c. DNA from victim's left back pocket. Pursuant to our
duty under G. L. c. 278, § 33E, we consider an error in the
prosecutor's closing argument that was not raised by the
defendant. In his closing, the prosecutor told the jury that the
DNA profile found in all four of the victim's jeans pockets
"matched the profile of the defendant . . . to an exclusion rate
of. . . 99.8 percent," and that for "all four of the pockets, the
known standard from [the defendant] was collected and analyzed
and compared to the swabs of all four pockets and to a 99.8
30
percent exclusion. [Ninety-nine point eight] percent of society
is excluded but for [the defendant] and his paternal relatives."
Although Drugan, the Commonwealth's DNA expert, testified that
99.8 per cent of the population could be excluded as a source of
the DNA found in three of the victim's jeans pockets, there was
no direct testimony about the exclusion rate for the DNA found in
the back left pocket. The defendant did not object to the
closing argument, or to Drugan's testimony about the back left
pocket.20
Because "DNA evidence that a particular individual could not
be excluded as a potential contributor of the DNA at issue should
not be admitted without accompanying statistical evidence of the
likelihood that the test could not exclude other individuals in a
given population," Commonwealth v. Bizanowicz, 459 Mass. 400,
409-410 (2011), citing Commonwealth v. Mattei, 455 Mass. 840,
851-855 (2010), we consider the issues raised by the lack of such
evidence to determine whether "there is a substantial likelihood
that a miscarriage of justice has occurred." Commonwealth v.
Wright, 411 Mass. 678, 681 (1992). See generally Commonwealth v.
20
The defendant filed a motion in limine to exclude evidence
of DNA matches without evidence of statistical significance. At
a pretrial hearing, it was agreed that evidence about the pockets
would be inadmissible unless statistics were provided. The
defendant, however, did not renew the objection at trial, and the
objection is therefore not preserved. See Commonwealth v. Jones,
464 Mass. 16, 18 (2012), quoting Commonwealth v. Whelton, 428
Mass. 24, 25 (1998).
31
Riley, 467 Mass. 799, 807 (2014).
Drugan testified that Y-STR testing of swabs of the victim's
pockets showed a mixture of DNA. At least three men contributed
to the DNA found in the right front pocket of the victim's jeans,
the left front pocket, and the back right pocket; Drugan
testified that she identified a "major" profile within the
mixture, that is, the contributor of one profile who contributed
more cellular material than the other contributors. A major
profile was found at sixteen loci for the front left and back
right pockets, and at ten loci for the front right pocket.
Explaining the significance of this match as to these three
pockets, Drugan testified that, apart from the defendant's
paternal relatives, 99.8 per cent of the population could be
excluded as a source of the DNA with respect to DNA from these
three pockets.21
As to the back left pocket, Drugan testified that her
analysis of the DNA detected a major profile at three of the
21
Drugan testified that the major profile is not contained
in a database that includes Y-STR profiles from a sample of 2,852
Caucasian males, 2,574 African-American males, 1,612 Hispanic
males, and 537 Asian males. She extrapolated from these samples
to the general population by applying a ninety-five per cent
confidence interval and concluded that she would expect over 99.8
percent of unrelated Caucasian males to be excluded as having the
major profile, and that 99.8 percent of unrelated African-
American males, 99.8 percent of unrelated Hispanic males, and
99.4 percent of unrelated Asian males would be excluded. The
defendant is Caucasian.
32
sixteen loci which matched the DNA profile of the defendant, and
that "at the [thirteen] locations where there was not a major
profile detected . . . I still observed [the defendant's]
alleles" and "could not exclude him." She did not testify as to
the "statistical evidence of the likelihood that the test could
not exclude other individuals in a given population."
Commonwealth v. Bizanowicz, supra at 409-410, citing Commonwealth
v. Mattei, supra at 851-855. It is not apparent from the record
whether, in light of the differences between the DNA findings at
the left-back pocket and the findings as to the other three
pockets, the statistical evidence would have been different from
that of the other three pockets.22
Because it was based, in part, on evidence that was not
before the jury, the prosecutor's argument should not have been
made. See Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005),
quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002). In
closing arguments, prosecutors may not misstate the evidence, but
must tailor their remarks to ensure they remain properly grounded
in the evidence. See Commonwealth v. Roy, 464 Mass. 818, 831-832
(2013). Nonetheless, the improper argument did not create a
22
The defendant, who was well aware of the statistical
issues relative to DNA testing, see note 21, supra, did not
object, but it is not clear whether the lack of objection was
strategic or inadvertent; Drugan's testimony as to the different
pockets took place over a two-day period separated by a weekend.
33
substantial likelihood of a miscarriage of justice. Whether the
defendant's DNA matched that of the major profile in three of the
victim's pants pockets, or four of those pockets, was not likely
to have influenced the jury's conclusion. See Commonwealth v.
Wright, supra at 682. It was not essential to the Commonwealth's
case that the evidence establish that the defendant put his hand
into four of the victim's pockets.23 Even if it had been
established that the defendant's DNA matched that of the major
profile in only three of the pockets, the jury could have
inferred that the victim woke up before the defendant completed
the search of her pockets.
Having reviewed the entire record pursuant to G. L. c. 278,
§ 33E, we discern no reason to reduce the conviction of murder in
the first degree to a lesser degree of guilt or to order a new
trial.
3. Conclusion. The order dismissing the defendant's
conviction of armed robbery is vacated and set aside. The
convictions of armed robbery and murder in the first degree are
affirmed.
23
In his closing argument, defense counsel referred
consistently to "the pockets" when discussing the DNA evidence.
Apparently focused on Drugan's testimony that she assumed the DNA
sample was from skin left in the pockets because no blood had
been found in them, he argued that if the defendant had killed
the victim, there would have been blood on his hands (either his
own, from a cut, or the victim's) that would have gotten into the
pockets.
34
So ordered.