Commonwealth v. Evans

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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.