Commonwealth v. Holley

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SJC-11385

COMMONWEALTH vs. JERMAINE HOLLEY.

Bristol. September 9, 2016. - December 19, 2016.

Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ.

Homicide. Grand Jury. Evidence, Prior misconduct, Expert
opinion. Practice, Criminal, Capital case, Grand jury
proceedings, Prosecutor's conflict of interest, Opening
statement, Argument by prosecutor, New trial.

Indictment found and returned in the Superior Court
Department on June 29, 2007.

The case was tried before Robert J. Kane , J., and a motion
for a new trial, filed on October 3, 2014, was considered by
him.

David H. Mirsky (Joanne T. Petito with him) for the
defendant.
Shoshana Stern, Assistant District Attorney, for the
Commonwealth.

BUDD, J. In December of 2011, a jury convicted the

defendant, Jermaine Holley, of murder in the first degree on a
 2

theory of extreme atrocity or cruelty in connection with the

death of the victim, Susy Goulart, in April, 2005.1

On appeal, the defendant asserts errors in (1) the presence

of police officers in the grand jury room while the Commonwealth

presented witness testimony in support of the murder indictment;

(2) the trial judge's denial of the defendant's motion for the

appointment of a special prosecutor; (3) several evidentiary

rulings by the trial judge; (4) the prosecutor's opening

statement and closing argument; and (5) the trial judge's denial

of his motion for a new trial. The defendant also seeks relief

under G. L. c. 278, § 33E. After full consideration of the

trial record and the defendant's arguments, we affirm the

defendant's conviction and the denial of his motion for a new

trial, and we decline to grant extraordinary relief pursuant to

G. L. c. 278, § 33E.

Background. We summarize the facts the jury could have

found, reserving certain details for discussion of specific

issues. The victim lived in a multibuilding public housing

development in Fall River. On the day of her death, the

victim's former friend and neighbor, Patricia Moran, moved out

of her apartment because she had been evicted as the result of

both nonpayment of rent and a then-pending criminal charge of

1
The jury declined to convict the defendant of murder in
the first degree on a theory of deliberate premeditation.
 3

assaulting the victim during a dispute over a debt. Moran's boy

friend and his brother, the defendant, had often visited Moran

at the development. The defendant was among those who helped

move Moran's belongings into a truck after which the group drank

alcohol outside her building. The defendant told one of these

people that the victim owed Moran money. The defendant was

still at Moran's building at approximately 8 P.M. At

approximately 9 P.M., a neighbor saw the victim walking home

from the direction of Moran's building. The victim then stopped

to smoke a cigarette while with her downstairs neighbors near

the back door of her own building. As the victim was walking

upstairs afterward, the neighbors saw an African-American man

also walk upstairs. He did not respond when the victim asked

him, "Are you here for me?" The hood the man was wearing

blocked most of his face. Earlier in the day, a resident had

seen the defendant wearing a "hoodie."

Soon after the victim and the man walked up the stairs, the

neighbors she had been smoking with heard the victim's apartment

door lock and then the sound of loud music. A neighbor who

lived next door to the victim, also heard people enter the

apartment. Later, this neighbor heard a scream but could not

tell the source. Shortly after that, she saw smoke coming from

the victim's apartment and telephoned the fire department. No

one saw or heard anyone else enter or leave the apartment, and
 4

the victim did not answer her friend's telephone calls at 10:13

P.M. and 11:32 P.M.

Police, fire fighters, and paramedics responded to the

scene. A pot on the stove was on fire, blood was seen

throughout the living room and kitchen, and the victim was dead

on the floor, wearing only a shirt and holding a severed

telephone line. An autopsy showed that she had died as a result

of forty stab wounds and thirteen cutting wounds. The knife

used in the killing was never found.

Investigators took samples of blood, clothing (including a

bloody sock), and powder and gelatin lifts of fingerprint and

footwear impressions from the victim's apartment, as well as

fingernail scrapings, a blood sample, and oral, vaginal, and

anorectal swabs from the victim's body. The State police crime

laboratory compared deoxyribonucleic acid (DNA) samples from the

evidence collected to DNA samples from the victim, the

defendant, the defendant's brother, and the first police officer

to respond to the fire. Over the course of the investigation,

the police also found and seized a pair of the defendant's

shoes, the soles of which were consistent with footprint

impressions found in blood in the victim's apartment.

Residents of the housing complex told police that they had

seen the defendant with a knife on the day the victim was

killed. At around noon, the defendant showed his knife to one
 5

resident who had stopped by Moran's apartment. It was

approximately eleven inches long with a black handle and black

sheath. That afternoon, the defendant visited another

resident's apartment to demand money that the resident's former

boy friend owed to the defendant. When the resident told the

defendant that she was not responsible for the debt, the

defendant lifted his hoodie and shirt to show her a knife with a

black and silver handle in a "holster," and said he would be

back. A third resident, José Torres, said that the defendant

had waved a large knife at Torres and his friends on the day of

the murder.

Five days after Goulart's death, the police went to speak

with the defendant. He was brought to the police station, where

an officer noticed a cut on the defendant's hand. A test for

blood on both of his hands was negative.

After giving the defendant the Miranda warnings, the police

interviewed him about the victim's death. During the interview,

the defendant denied being at the housing complex on the day of

the murder and denied knowing personally or having sex with the

victim (he even initially denied knowing Moran).2 He also

falsely stated that he and his girl friend had gone to Newport,

2
Vaginal and anorectal swabs taken from the victim both
contained two deoxyribonucleic acid (DNA) profiles: hers and
the defendant's. At trial, the fact that the defendant and the
victim had sex on the day of the murder was uncontested.
 6

Rhode Island, on the day of the victim's death. When the police

asked the defendant if he could think of anything worse than

murder, he said, "You can snitch on somebody. That's like

taking somebody's life." At some point, the defendant

apparently had told his girl friend that the victim was a

snitch.

At trial, the defendant pointed to the victim's former boy

friend as the murderer, suggesting that the police had narrowed

their search too quickly to African-American men, and

highlighting a number of reasons that the boy friend had to kill

the victim, including their turbulent relationship and the fact

that she had had sex with the defendant. The defendant also

presented evidence that the boy friend had been in the housing

complex on the day of the murder. The defense stressed the lack

of fingerprint evidence linking the defendant to the murder and

argued that the number and type of stab wounds were indicative

of the victim's boy friend's obsession with and anger at her.

The victim's boy friend had been seen elsewhere on the evening

of the murder.

2. Discussion. a. Unauthorized persons in the grand jury

room. In the defendant's motion for a new trial, and again on

appeal, he argued that his indictment must be dismissed because

of the presence of unauthorized persons in the grand jury room.

Two police officers involved in the investigation of this case,
 7

who were witnesses before the grand jury in the matter, were

present in the grand jury room for most, if not all, of the

other witnesses' testimony. Both parties agree that the

officers' presence was improper. The defendant contends that

this error rendered his indictment void ab initio, requiring not

only the vacation of his conviction but also the dismissal of

the indictment under the United States Constitution and the

Massachusetts Declaration of Rights. Alternatively, the

defendant argues that if the indictment was not void, he is

nevertheless entitled to a new trial based on the ineffective

assistance of trial counsel, who failed to move to dismiss the

indictment or even to raise the issue prior to trial. We

conclude that the indictment was voidable rather than void, and

that, in this case, the defendant has failed to show that he was

prejudiced by either the grand jury irregularity or his

counsel's failure to raise the issue.

Secrecy is of fundamental importance to grand jury

proceedings, not only to protect the reputation of the accused,

but also "to shield grand jury proceedings from any outside

influences having the potential to 'distort their investigatory

or accusatory functions.'" Commonwealth v. Pezzano, 387 Mass.

69, 73 (1982), quoting Opinion of the Justices, 373 Mass. 915,

918 (1977). A limited category of authorized persons, such as

counsel for witnesses, interpreters, court officers, and
 8

stenographers, may be present during grand jury proceedings.3

See Mass. R. Crim. P. 5 (c), as appearing in 442 Mass. 1505

(2004); Pezzano, supra at 72 n.5. This court has disapproved of

the presence of "unauthorized" individuals, especially

investigating police officers, because their presence has the

potential to compromise the integrity of the process by, among

other things, influencing witness testimony through

intimidation. Pezzano, supra at 74-75. In Opinion of the

Justices, 232 Mass. 601, 604 (1919), we stated that the

"essential characteristics of the grand jury would be broken

down if a police officer or other person who had investigated

the evidence, interviewed the witnesses, and formulated a plan

for prosecuting the accused should be permitted to be present

during the hearing of testimony. . . . The attendance of a

police officer would afford opportunity for subjecting witnesses

to fear or intimidation, for preventing freedom of full

disclosure by testimony, and for infringing the secrecy of the

proceedings." Accordingly, we have held that "the presence of

an unauthorized person before a grand jury will void an

3
Rule 5 (c) of the Massachusetts Rules of Criminal
Procedure, as appearing in 442 Mass. 1505 (2004), provides in
relevant part: "Attorneys for the Commonwealth who are
necessary or convenient to the presentation of the evidence, the
witness under examination, the attorney for the witness, and
such other persons who are necessary or convenient to the
presentation of the evidence may be present while the grand jury
is in session."
 9

indictment." Pezzano, supra at 72–73, citing Commonwealth v.

Harris, 231 Mass. 584, 586-587 (1919). In Pezzano, supra at 70,

and Harris, supra at 585, the defendants challenged their

indictments prior to trial. Here, however, the defendant did

not contest the validity of the indictment until after his trial

and conviction. Thus, we must determine whether the presence of

unauthorized persons during grand jury proceedings automatically

voids an indictment even in cases where there is no challenge

made until after conviction.

The defendant's right to indictment by a grand jury is

protected by the Massachusetts Declaration of Rights.4 Harris,

231 Mass. at 585-586; Jones v. Robbins, 8 Gray 329, 347 (1857).

By waiting until after his conviction, however, the defendant

has waived his right to object under Massachusetts law to

4
There is no Federal constitutional right to a grand jury
indictment in State proceedings. Apprendi v. New Jersey, 530
U.S. 466, 477 n.3 (2000). Where a State does provide a right to
a grand jury, however, it must implement this right in
accordance with the United States Constitution. Rose v.
Mitchell, 443 U.S. 545, 557 n.7 (1979). The Supreme Court has
held that a violation of Fed. R. Crim. P. 6 (d), which precludes
unauthorized persons from Federal grand jury proceedings, does
not require an automatic dismissal of the subsequent conviction.
See United States v. Mechanik, 475 U.S. 66, 70 (1986) (trial
jury's guilty verdict "means not only that there is probable
cause to believe that [a] defendant[] [is] guilty as charged,
but also that [he or she is] in fact guilty as charged beyond a
reasonable doubt"). Thus, the United States Constitution does
not render the defendant's indictment void ab initio for such a
deficiency in a State proceeding.
 10

defects in the underlying grand jury proceeding.5 G. L. c. 277,

§ 47A (failure to object to grand jury defects before trial

constitutes waiver). See Mass. R. Crim. P. 13 (c) (2), as

appearing in 442 Mass. 1516 (2004) (motion to dismiss must be

raised before trial). Compare Commonwealth v. Barbosa, 421

Mass. 547, 553 (1995) (right to object to indictment not waived

and properly preserved where defendant moved to dismiss before

trial), with Commonwealth v. Mayfield, 398 Mass. 615, 622 n.4

(1986) ("alleged flaws in the grand jury proceedings, argued on

appeal for the first time, are not generally before us because

they were not seasonably asserted"). Thus the defendant must

show that the grand jury irregularity caused a substantial

likelihood of a miscarriage of justice in the trial jury's

verdict. See Mayfield, supra.

The defendant has not shown that the presence of the police

officers caused those who testified before the grand jury to

feel coerced or intimidated.6 The majority of the grand jury

witnesses testified again at trial, where they were subject to

5
The defendant points out that defenses and objections
"based upon . . . the failure to charge an offense . . . shall
be noticed by the court at any time." G. L. c. 277, § 47A. The
issue here is not a failure to charge, but rather a defect in
the grand jury process that culminated in the charge.
6
The affidavits presented in support of the defendant's
motion for a new trial did not state that the officers' presence
caused any coercion or intimidation -- only that the officers
were present.
 11

cross-examination by the defendant, and the trial jury found the

defendant guilty beyond a reasonable doubt.

Moreover, the only portion of the grand jury testimony that

the trial judge admitted substantively was the testimony of

Torres, after the judge properly found that he was feigning a

lack of memory on the stand. See Commonwealth v. McGhee, 472

Mass. 405, 422-423 (2015), citing Commonwealth v. Sineiro, 432

Mass. 735, 745 & n.12 (2000). See also Mass. G. Evid.

§ 801(d)(1)(A) (2016). As to this testimony, however, the

defendant has failed to demonstrate that Torres was influenced

in any way by the presence of officers in the grand jury room.

The trial judge conducted a voir dire examination of Torres

before he testified at trial. During his voir dire examination

and thereafter before the trial jury, Torres confirmed that he

had taken an oath and had answered questions before the grand

jury to the best of his ability.7 He did not recant any of the

detailed statements he made to the grand jury or indicate that

7
Torres had testified before the grand jury that the
defendant had threatened him and several other teenage residents
with a large knife. Torres told the grand jury that the
defendant had gotten angry because two girls made fun of him for
stumbling down a hill while drunk. Torres also stated that he
recognized the man from a previous snowball fight and from
playing basketball. He identified the man as "Jermaine" and
described him as approximately six feet, three inches tall, of
medium build, and frequently driving a silver motor vehicle. At
trial, however, Torres stated that some "random dude" who was
African-American pulled a knife on him.
 12

he had felt intimidated in any way by the officers' presence.

Finally, even if Torres's grand jury testimony about seeing the

defendant with a knife had been tainted, there was other

evidence from which the jury could have found that the defendant

had a knife on the day of the murder, including that he had

threatened another resident with that knife.

Therefore, the defendant has not shown that the presence of

investigators during the grand jury proceedings caused a

substantial likelihood of a miscarriage of justice such that his

indictment must be voided after a conviction. Moreover, because

the defendant failed to make this showing, his claim for

ineffective assistance of counsel must also fail, even assuming

that it was error for his counsel not to challenge the

indictment. See Commonwealth v. Wright, 411 Mass. 678, 682

(1992), S.C., 469 Mass. 447 (2014) (under § 33E review,

ineffective assistance of counsel claim is reviewed under

substantial likelihood of miscarriage of justice standard).

b. Motion for appointment of a special prosecutor. An

assistant district attorney (attorney) in the Bristol County

District Attorney's office was formerly in private practice with

the prosecutor in this case. While in private practice, the

attorney had represented the defendant in a prior, unrelated
 13

criminal matter.8 For this reason, prior to trial the defendant

moved for a special prosecutor, i.e., someone from outside the

Bristol County district attorney's office, to prosecute the

case.9 At the motion hearing and in the Commonwealth's response

to the defendant's motion, the prosecutor represented to the

judge that the attorney had been screened from any involvement

in the case and never shared any knowledge of the defendant with

the prosecutor.10 The defendant nevertheless argues that the

denial of his motion constitutes reversible error. We disagree.

Complete disqualification of an entire district attorney's

office and the appointment of a special prosecutor are not

8
The representation of the defendant in the prior matter
spanned approximately four months and took place seven years
prior to the trial in this matter; all of the charges against
the defendant were dismissed.
9
The defendant cited a press release describing the
attorney and the prosecutor as "influential in helping [the
district attorney's] office bring charges against suspects in
three previously unsolved murder cases," including this case, as
evidence that the attorney had worked on this case. The
defendant argues that the fact that the Commonwealth did not
inform him of the attorney's employment and that the defendant
did not consent to the prosecution of the matter by the Bristol
County district attorney's office, in essence, should create a
presumption against the office.
10
According to the prosecutor, he reviewed the file and
informed the attorney that there was a potential match between
the defendant and some DNA recovered at the crime scene. The
attorney stated he might have represented the defendant, which
he confirmed after reviewing his records. As a result, the
attorney was never assigned to and was never involved in the
investigation of this case.
 14

required when a lawyer who previously represented a defendant

currently being prosecuted by the district attorney's office

joins that office. See Mass. R. Prof. C. 1.11 comment [2], as

appearing in 471 Mass. 1370 (2015) ("Because of the special

problems raised by imputation within a government agency,

paragraph [d] [providing rules for lawyers serving as public

officers or employees] does not impute the conflicts of a lawyer

currently serving as an officer or employee of the government to

other associated government officers or employees");11 Mass. R.

Prof. C. 1.10 (f) and comment [4], as appearing in 471 Mass.

1363 (2015) (rules of imputation are different for lawyers

serving as public employees); Pisa v. Commonwealth, 378 Mass.

724, 727-728 (1979). Instead, rule 1.11 (d) (2) provides, "[A]

lawyer currently serving as a public officer or employee . . .

shall not . . . participate in a matter in which the lawyer

participated personally and substantially while in private

practice or nongovernmental employment."12

11
The earlier version of this rule, in effect at the time
of the defendant's motion for appointment of a special
prosecutor, provided essentially the same protection, stating
that disqualification of one public employee "[did] not
disqualify other lawyers in the agency with which the lawyer in
question [had] become associated." Mass. R. Prof. C. 1.11
comment [9], 426 Mass. 1352 (1998).
12
An identical version of this provision was previously
located at Mass. R. Prof. C. 1.11 (c) (1), 426 Mass. 1352
(1998).
 15

The attorney who formerly represented the defendant did not

participate in this case. In addition, the prior association

between the prosecutor and the attorney in private practice

disqualifies neither the prosecutor nor the district attorney's

office where, as here, the prosecutor affirms that he did not

represent the defendant and had no actual knowledge of him.13

See Mass. R. Prof. C. 1.9 comment [5], as appearing in 471 Mass.

1359 (2015) (no disqualification where lawyer did no work on

matter and acquired no information about the client).14 There

has been no showing that any confidential information was ever

imparted to the prosecutor, much less used against the defendant

at trial. There was no error in denying the defendant's motion

for appointment of a special prosecutor.

c. Evidentiary rulings. i. Prior bad act testimony. As

discussed, at trial, one resident testified that on the day of

the homicide, the defendant lifted his hoodie to show her a

large knife during a dispute about a debt. In addition, Torres

stated in his grand jury testimony, which was admitted in

13
The prosecutor told the motion judge that the attorney
had represented hundreds of criminal defendants during his time
in private practice, but that the two did not discuss these
cases. In addition, they maintained separate offices and filing
cabinets relating to their cases.
14
Comment [9] to rule 1.10 of the Massachusetts Rules of
Professional Conduct, 426 Mass. 1346 (1998), articulated the
same principle.
 16

evidence at trial, that the defendant had waved a knife at

Torres and his friends. The defendant argues that the probative

value of this prior bad act evidence did not outweigh its

prejudicial nature, and that the case was overwhelmed with prior

bad act evidence. We disagree.

Although prior bad act evidence is generally inadmissible

to show one's propensity to commit a crime, such evidence may be

admitted, "if relevant, for some other purpose, such as proving

common scheme, pattern of operation, preparation, opportunity,

nature of relationship, knowledge, intent, motive, identity,

. . . absence of accident or mistake," Commonwealth v.

Cheremond, 461 Mass. 397, 408 (2012), or state of mind,

Commonwealth v. Howard, 469 Mass. 721, 738 (2014). See Mass. G.

Evid. § 404(b)(2) (2016).

Here, the evidence was relevant to show that the defendant

had access to a knife that could have been used in committing

the murder, particularly given the medical examiner's testimony

about the size and depth of the victim's stab wounds. See

Commonwealth v. Toro, 395 Mass. 354, 356 (1985). The fact that

the defendant lifted his hoodie to show the knife to a resident

was probative of identity, given that the last person seen

entering the victim's apartment was wearing a hoodie. The

defendant's effort to collect on a debt was relevant to show

motive, as he had discussed the victim's debts with another
 17

person on the day she died. The testimony was also probative of

the defendant's state of mind, as both the resident and Torres

testified about acts that took place shortly before the murder.

We note that the judge limited consideration of Torres's grand

jury testimony to consideration of "the identity of the person

who he saw with a knife."

Moreover, given the amount of other evidence of the

defendant's guilt, the bad act evidence was not overwhelming.

The defendant had sex with the victim on the day she died, and

the jury could have inferred that he had left footprints in her

blood. He lied about his alibi and denied knowing the victim

well or having sex with her -- until DNA evidence showed

otherwise. Initially, he denied being at the housing complex

that day or knowing his brother's girl friend, even though he

had been there to help her move. He had a cut on his hand five

days after the murder and encouraged his girl friend not to

testify at trial. In the face of this evidence, much of which

showed consciousness of guilt, the testimony about prior bad

acts was not overwhelming.

Therefore, the judge did not abuse his discretion in

admitting the testimony.

ii. Reliability of shoe print analysis. The defendant

contends that the judge committed reversible error in allowing a

Commonwealth expert to testify about whether it was possible to
 18

match the defendant's shoes to prints found in the victim's

blood, arguing that the opinion was based on unreliable methods.

We disagree.

The Commonwealth introduced evidence including gelatin

lifts of shoe prints found in the victim's blood, the

defendant's shoes, and photographs of the shoes' soles. The

Commonwealth's experts testified that the prints were consistent

with the model of the shoe and that gum and pebbles were

retrieved from the soles of the defendant's shoes.15 The

totality of the evidence introduced by the Commonwealth would

support a conclusion that shoes of the type the defendant owned

had been in the victim's blood. The judge ruled that the

prosecutor could introduce testimony related to individual

characteristics of the defendant's shoes and characteristics of

the shoes' model generally, but the judge instructed the jury

that the final determination of any "match" between the shoes

and the shoe prints found at the crime scene would be left to

them.

At sidebar in response to an anticipatory objection by

defense counsel, the judge held a voir dire examination of one

of the Commonwealth's expert witnesses, who had worked with

lifts of the shoe prints but not with the shoes. The

15
The defendant does not contest that the shoes belonged to
him.
 19

Commonwealth sought to elicit testimony related to the expert's

method of recognizing an "anomaly" on the lift of a shoe print

impression and determining what caused the anomaly. The judge

asked the expert questions related to the reliability of his

method, based on the expert's twenty-five years of experience in

crime scene investigation, his level of certainty regarding his

findings, and his explanation of how items stuck to the bottom

of shoes could affect a shoe print. The judge decided to allow

limited testimony on the subject.16

The Commonwealth's expert testified that a characteristic

such as stones or gum could "sometimes be used to make a

positive identification" of a particular shoe, "but it's rarely

done with a single identifying characteristic." In response to

a hypothetical question, the expert also said that it would be

possible for him to match a shoe to a gelatin lift.

Expert opinion testimony based on a reliable process or

theory is admissible where "specialized knowledge would be

helpful" to the jury. Commonwealth v. Pytou Heang, 458 Mass.

16
The judge agreed that the witness could describe what he
saw with respect to the footwear impressions and that the
gelatin lifts showed an "anomaly" due to a characteristic of the
shoe. However, the judge ruled that the witness could not state
what caused the identifying characteristic and that the concept
of a "match" must be left to the jury's own determination. The
witness referred only to the possibility of matching identifying
characteristics, but did not say that any particular shoe was a
positive match.
 20

827, 844 (2011). The trial judge "has broad discretion to

determine how to assess the reliability of expert testimony."

Palandjian v. Foster, 446 Mass. 100, 111 (2006). Here, the

judge did not abuse his discretion in determining that the

method was reliable because the fact that someone could

potentially match a shoe print to a shoe based on items stuck to

the shoe made sense, particularly in light of the expert's

experience and explanation during the voir dire examination.

See Commonwealth v. Torres, 469 Mass. 398, 406-408 (2014)

(expert testimony comparing defendant's footwear to impressions

made in blood at crime scene was admissible to assist jury and

was properly introduced where "[i]t was made clear to the jury

that this was a matter they could weigh for themselves"). We

note that the expert qualified the value of any comparison, and

that the defendant had the opportunity to challenge the validity

of the testimony through cross-examination. See Commonwealth v.

Lanigan, 419 Mass. 15, 26 (1994). There was no error.

d. Prosecutor's opening statement and closing argument.

The defendant also alleges that improper statements made by the

prosecutor during his opening statement and closing argument

warrant reversal because they materially misled the jury.

i. Opening statement. The defendant alleges two errors in

the opening statement. First, the prosecutor told the jury that

the defendant's shoes tested positive for occult blood and for
 21

human DNA, "but not enough to give a conclusive result." Where

inconclusive DNA evidence is not "probative of an issue of

consequence," it is inadmissible. Commonwealth v. Nesbitt, 452

Mass. 236, 254 (2008). The defendant objected at the time of

the prosecutor's reference to the DNA, and the judge immediately

gave a curative instruction to the jury.17 Considering the

judge's forceful contemporaneous instruction and his general

instruction to the jury before the opening statement to the

effect that the opening was not evidence, and because we

"presume[] the jury understood and followed" the judge's

instructions, the prosecutor's improper comment did not

prejudice the defendant. See Commonwealth v. Thomas, 429 Mass.

146, 158 (1999).

Second, the defendant claims that the prosecutor's

reference in his opening to DNA evidence from the bathroom sink18

17
The judge told the jury, "I sustain the objection. I
said that DNA evidence that has no figure attached to it means
nothing. It is to be disregarded by this jury. Totally
disregarded."
18
The prosecutor stated:

"When they go to the sink knobs, you'll hear they find
a mixture. The major -- there's a mixture of a larger
amount and a smaller amount. The larger amount they'll say
-- they'll find the blood was [the victim's}. There's also
DNA that's found in the mixture, the minor profile, which
is consistent with the defendant's profile; and in fact the
statistical analysis on finding somebody else in a random
 22

impermissibly misled the jury because it implied that there was

"less than one-third of one percent" probability that the

defendant was innocent. However, the prosecutor's remark did

not refer to a likelihood of guilt or innocence, but instead was

an attempt to explain how likely it was that the consistency

between the defendant's DNA and the sample was a coincidence.

The remarks did not track the exact formulation of the "random

match probability" statistic, but his use of the words

"consistent" and "random drawing" conveyed the same general

idea. See Commonwealth v. Bizanowicz, 459 Mass. 400, 407 n.13

(2011) ("The random match probability . . . calculation measures

how rare a given DNA sample is among the general population");

United States v. Pritchard, 993 F. Supp. 2d 1203, 1209 (C.D.

Cal. 2008) ("The [random match probability] represents the

chance that a single randomly selected unrelated individual

would match the evidence profile by coincidence" [citation

omitted]). There was no error.

Moreover, as with closing arguments, we consider any

improper remarks in the opening statement "in light of the

'entire [statement], as well as in light of the judge's

drawing of people in the African-American community would
be one in 305. So less than one-third of 1%."

The prosecutor had previously described the statistic
as "the likelihood that somebody else having that profile
would be found in the African-American population."
 23

instruction to the jury and the evidence at trial.'"

Commonwealth v. Ortiz, 463 Mass. 402, 415 (2012), quoting

Commonwealth v. Raposa, 440 Mass. 684, 694 (2004). The lack of

objection to this statement, the judge's earlier charge

explaining that opening statements are not evidence, and the

detailed expert testimony on random match statistics made the

prosecutor's imprecise phrasing of the random match probability

relatively inconsequential in the context of the entire trial.

See Commonwealth v. Jones, 439 Mass. 249, 260–261 (2003),

quoting Commonwealth v. Thomas, 429 Mass. at 158 (prosecutor's

opening statement "must be judged in light of the entire

[statement], the judge's instructions to the jury, and the

evidence actually introduced at trial").

ii. Closing argument. The defendant also points to two

portions of the Commonwealth's closing argument as error.

First, the prosecutor stated that blood found on the bathroom

light switch contained DNA profiles belonging to three people --

that one belonged to the victim and the other two profiles were

insufficient for testing.19 He argued that "the [S]tate lab was

actually more discriminating, picked up two small minute samples

19
This was a misstatement of the evidence -- the
Commonwealth's expert testified that there was one other profile
present, not two -- but the defendant does not object to this
characterization of the evidence, presumably because it tends to
support his third-party culprit theory.
 24

that they can't even do further testing on" and, moreover, that

the defense expert testified that there was only one contributor

to the light switch sample. He also asked the jury to infer

that the blood on the light switch was left by the first officer

to respond to the scene, based on the officer's testimony. The

defendant argues that this was improper because the prosecutor

impermissibly relied on inconclusive DNA evidence to support his

inference that a third-party culprit was not responsible for the

blood on the light switch.20

The judge agreed that the prosecutor had misstated the

evidence and gave a curative instruction to the jury to clarify

that the defendant had been excluded as a possible contributor

20
The defendant also argues that the Commonwealth
improperly introduced the underlying DNA evidence because the
comparison between the sample and the officer's DNA was
inconclusive. Experts for both parties agreed that the sample
from the light switch contained DNA belonging to the victim and
to one other person. Because there was so little minor profile
DNA present, the defense expert concluded that there was
essentially one contributor to the sample -- the victim. The
Commonwealth's expert testified that the fraction of minor
profile DNA that was present was sufficient to exclude the
defendant as a contributor to the sample, but insufficient to
make any conclusive comparison to the officer's DNA. In light
of the efforts by the prosecutor, the judge, and the testifying
expert to clarify that the result meant that the information was
too limited to do more definitive testing, the admission of
nonexclusive evidence was not in error. See Commonwealth v.
Mattei, 455 Mass. 840, 855 (2010).
 25

to the DNA on the light switch.21 See Commonwealth v. Tu Trinh,

458 Mass. 776, 789 (2011) (specific curative instruction deemed

sufficient to mitigate possible prejudice). The defendant did

not object at trial to the rest of the statement -- that the

officer had touched the light switch. In light of the fact that

the defense expert said that only one profile was present and

that defense counsel did not discuss the light switch in the

closing argument, the prosecutor's comments were unlikely to

affect the third-party culprit defense. In addition, this was a

collateral issue and the officer had already testified about his

actions that night, so the prosecutor's misstatement was

unlikely to have had any effect on the verdict, let alone create

a substantial likelihood of a miscarriage of justice.

The second allegedly improper argument was that the gelatin

lift of the shoeprint "matche[d]" the photograph of the sole of

the defendant's shoe. "This is then in the blood. This then

tests positive for blood. Do we expect to have blood on our

shoes? These shoes were in [the victim's] blood. This was

after he killed her." Although defense counsel objected to

these statements following the Commonwealth's closing argument,

21
The judge stated, "Jurors, I want you to know and I want
you to keep in mind that the evidence in this case indicated
that the defendant was excluded from what was left in the area
of the light switch. So bear that in mind in deliberating upon
this case."
 26

we agree with the trial judge that these statements by the

prosecutor did not materially mislead the jury because the

argument was based on inferences that the jury could have made

from the evidence presented at trial. Commonwealth v. Guy, 441

Mass. 96, 110 (2004) ("Prosecutors must limit the scope of their

closing arguments to facts in evidence and the fair inferences

that may be drawn therefrom").

e. Motion for new trial. The issues raised in the

defendant's motion for a new trial are essentially the same as

those raised in his direct appeal. For the reasons we have

already discussed, and because the defendant did not explain the

reasons an evidentiary hearing was necessary, the judge was well

within his discretion to deny the motion without a hearing.

Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015). Mass. R.

Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001).

3. Conclusion. After reviewing the entire record, we

discern no reason to exercise our power under G. L. c. 278,

§ 33E.

Judgment affirmed.

Order denying motion for
new trial affirmed.