Commonwealth v. Santana

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SJC-12039

COMMONWEALTH vs. CESAR SANTANA.

Essex. January 10, 2017. - August 17, 2017.

Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.

Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement, Hearsay, Expert
opinion. Witness, Expert. Practice, Criminal, Capital
case, Motion to suppress, Admissions and confessions,
Voluntariness of statement, Mistrial, Argument by
prosecutor, Plea.

Indictments found and returned in the Superior Court
Department on December 12, 2008.

A pretrial motion to suppress evidence, filed on June 8,
2009, and amended October 3, 2011, was heard by Kimberly S.
Budd, J.; a second pretrial motion to suppress evidence, filed
on April 12, 2012, was heard by Howard J. Whitehead, J.; a third
pretrial motion to suppress evidence, filed on June 4, 2013, was
heard by Richard E. Welch, III, J.; and the cases were tried
before David A. Lowy, J.

Elizabeth Caddick for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
 2

HINES, J. In January, 2014, a Superior Court jury

convicted the defendant, Cesar Santana, of murder in the first

degree of Rafael Castro, on the theories of extreme atrocity or

cruelty, and felony-murder with home invasion and armed

burglary, assault on occupant as the predicate felonies. On

appeal, the defendant asserts error in (1) the denial of his

motion to suppress statements; (2) the admission of hearsay

testimony from various witnesses; (3) the denial of a requested

DiGiambattista jury instruction; (4) the denial of the motion

for a mistrial following the jury's exposure to inadmissible

evidence; and (5) certain improper statements made in the

prosecutor's closing argument. The defendant also requests that

we exercise our authority pursuant to G. L. c. 278, § 33E, to

reduce the murder conviction or to order a new trial. We affirm

the defendant's convictions and decline to grant relief under

G. L. c. 278, § 33E.

Background. 1. The murder. We summarize the facts the

jury could have found, reserving certain details for our

discussion of the alleged errors. On the night of August 25,

2004, Norma Cedeno and her stepfather, Rafael Castro, were
 3

attacked by a group of men as the two entered Castro's Lawrence

apartment.1

Cedeno, who entered the apartment first and did not turn on

any lights, walked to the bathroom, where she was grabbed by a

man. Although she could not see the man's face, she felt

something "like a gun" on her back. Hearing Cedeno scream,

Castro ran into the apartment, and two men came out of the

kitchen. As the men struggled, Cedeno, who had been pushed down

to the floor and told to keep her head down, heard a gunshot,

saw Castro on the floor, and heard men arguing in Spanish, some

of whom asked, "Why did you shoot him?" Based on the voices she

heard and the feet she could see walking around the apartment,

Cedeno deduced that four men were involved in the incident.

Thereafter, Cedeno was taken into a bedroom and made to lie

on the floor. A pillowcase was put over her head. Although the

men were initially going to duct tape her hands and feet

together, they complied with her plea not to tie her up.

Instead, one man remained in the bedroom with her. Cedeno could

hear Castro's voice, which although clear at first, became

fainter as time passed. During the time the men were in the

apartment, Cedeno heard them "screaming," hitting and

threatening Castro, and demanding that he make a telephone call.

1
Norma Cedeno testified to the details of the attack at
trial under a grant of immunity concerning her involvement in
drug dealing with her mother and stepfather.
 4

At one point, the men brought Cedeno into the bedroom with

Castro, removed her shirt, and threatened to burn her with an

iron unless Castro agreed to make the call.

Eventually, one man said to Cedeno, "Three of us are

leaving and I'm staying here . . . and after I leave[,] if you

call the police or someone for help we're just going to come

back for you." Although Cedeno did not know the men, they

seemed to be familiar with Castro. After all of the men left

the apartment, Cedeno went to the other bedroom and found

Castro, taped up, bleeding from the gunshot wound on his head,

and unable to talk. Cedeno cut the duct tape binding Castro

and, eventually, telephoned 911.

Paramedics who arrived in response to the 911 call

determined that Castro had "no obvious signs of life." Castro's

cause of death was the gunshot wound to his head.

2. The investigation. The police recovered evidence from

the apartment including two rolls of duct tape, one of which had

blood on it, several pieces of duct tape, one piece of which was

found in the bathroom trash barrel, and samples of bloodstains

and pools in various areas of the apartment.

A latent fingerprint from a roll of duct tape recovered

from the scene was determined to be consistent with the known

fingerprint of Joonel Garcia. Also, a deoxyribonucleic acid

(DNA) swab was taken from a "small indentation" near the torn
 5

end of the piece of duct tape found in the bathroom trash

barrel. It contained a mixture of the DNA of at least two

individuals, including the defendant, whose DNA "matched" the

major profile of the mixture.

The police interviewed Jessica Encarnacion, who was the

girl friend of Garcia and lived with him in an apartment in

Lawrence. At trial, Encarnacion testified that four men --

Garcia, the defendant, and two others -- arrived at around

midnight at Garcia's apartment. Garcia was covered in blood.

Ignoring Encarnacion's questions about what was going on, Garcia

told her to pack because they had to leave the country.

Thereafter, she and the four men drove to New York, stopping

only to dispose of the gun. Once in New York, Garcia and

Encarnacion purchased one-way tickets to the Dominican Republic

and left the United States.

In August, 2004, the defendant initiated a conversation

with his probation officer,2 during which he stated that he would

be willing to provide information about a shooting in Lawrence

in exchange for financial compensation. The defendant told this

officer that a man named "Joonie" shot someone in the head, and

that the defendant knew the location of the firearm used in the

shooting. The probation officer passed the information on to

2
At the time, the defendant was on probation for an
unrelated matter.
 6

the Boston police department.3 In March, 2005, the defendant

initiated a second conversation with his probation officer about

the shooting in Lawrence. This time he told the officer that he

had significant legal concerns and added that the shooting in

Lawrence was actually a drug-related "homicide."

On March 4, 2005, the police interviewed the defendant. At

that time, the defendant was being held in a house of correction

on unrelated charges. Present were Trooper Robert LaBarge of

the State police and Detective Carlos Cueva of the Lawrence

police department. Although the defendant indicated that he

spoke and understood English, LaBarge asked Cueva to serve as a

Spanish translator because Spanish was the defendant's primary

language.4 Initially, the defendant agreed to allow the police

to audio record the interview. His demeanor was "cautious," but

he did not exhibit signs of emotional distress. The tone of the

interview was conversational. During the recorded portion of

the interview, the defendant was provided Miranda warnings in

Spanish and the defendant read the warnings out loud in Spanish.

After the defendant acknowledged that he understood and signed

3
The trial record lacks evidence of the Boston police
department's response to the probation officer's first report.
4
Detective Carlos Cueva spoke both English and Spanish, and
considered Spanish to be his native language. Although Cueva
grew up speaking Spanish in his family home and studied Spanish
in high school, he had no formal training in Spanish
translation.
 7

the written warnings, LaBarge began questioning the defendant

about the murder of Castro.

During the interview, in response to the suggestion that he

was inside the apartment at the time of Castro's murder, the

defendant stated that he was actually outside the apartment,

arriving only after the incident occurred. The defendant told

the police that after he received a call from Garcia requesting

a ride, he drove to an apartment building, picked up Garcia and

two other men, and dropped them off at Garcia's Lawrence

apartment. During the drive to the Lawrence apartment, the men

discussed the fact that Garcia had shot Castro. After remaining

in Garcia's apartment for a period of time, the defendant drove

Garcia and Encarnacion to Boston. The firearm used in the

murder was buried before Garcia and Encarnacion left for the

Dominican Republic. The day before the murder, the defendant

had transported a bag of firearms to Garcia's Lawrence

apartment. In exchange, the defendant received money and drugs.

At the conclusion of the interview, LaBarge asked the defendant

to sign the contemporaneous handwritten notes transcribing the

conversation, but the defendant refused.

Discussion. 1. Motion to suppress. The defendant filed

three motions to suppress statements he made during the March 4,

2005, interview with the police. Insofar as relevant here, in

2013, the defendant filed a third motion to suppress,
 8

reasserting the voluntariness issue that had not been reached in

any previous ruling. A judge (motion judge) denied this motion,

ruling that "[a]ny understanding that [the] statements would be

confidential and not used in court, was completely dissipated"

after the defendant was given the Miranda warnings and

voluntarily waived those rights. The defendant challenges only

the motion judge's ruling denying the motion to suppress on the

ground that his statement was voluntary.

We recite the facts as found by the motion judge who "fully

[i]ndorsed and incorporate[d]" the facts found by a different

judge who had denied one of the defendant's earlier motions to

suppress. We supplement the facts "with evidence in the record

that is uncontroverted and that was implicitly credited by the

motion judge." Commonwealth v. Melo, 472 Mass. 278, 286 (2015).

The defendant met with the police at the jail where he was

being held on unrelated charges. The officers were in

plainclothes and did not have their credentials or firearms with

them during the interview. The tone of the interview was

conversational. Because the defendant did not always understand

English, Cueva translated. However, the translation of

LaBarge's statements was neither word for word nor always

accurate. Cueva also communicated information in Spanish to the

defendant without translating it into English for LaBarge. When

LaBarge asked the defendant if he would consent to having the
 9

interview recorded, Cueva did not translate the defendant's

response: "Okay, no problem . . . okay . . . as long as it is

not used in court . . . better if not used in court . . .

whatever I say to you be confidential." Instead, Cueva replied

to the defendant, "No, do not worry," in Spanish.

After this colloquy between the defendant and Cueva and

prior to asking any questions about the murder, LaBarge inquired

whether the defendant could read and write Spanish. When the

defendant replied, "Yeah, perfect," LaBarge provided him with

Miranda warnings written in Spanish. LaBarge asked the

defendant to read aloud each warning and say whether he

understood it. The defendant did so and indicated that he

understood the warnings.

Following the Miranda warnings, LaBarge stated to the

defendant, "We are going to use the information . . . I have to

be honest, my goal is not to, to save you and to help you out.

My goal is to find the truth." Cueva translated this statement

as follows: "Any information that you give us now, [LaBarge

would] go to the court and they'd talk with the judge and the

lawyer and to say that 'look, Cesar came, talked to me, gave me

that and, we're going to try to help you, but he wouldn't give

you er . . . er, you know." Near the end of the recorded

portion of the interrogation, the defendant said in Spanish,
 10

"Tell him that it was me who had him come over, it wasn't him

who looked for me -- it was me who asked for him to come over."

Relying on the transcript of the recorded portion of the

interview, the motion judge also found that the tone of the

interview was "conversational," the defendant was "relaxed

throughout," and "appeared to be chuckling or laughing" on

occasion. Regarding the defendant's language skills, the judge

found that the defendant "plainly can speak and understand a

fair amount of English," although Spanish is "obviously" his

"primary language." The judge further found that "the defendant

plainly understood each [Miranda] right," provided to him in

Spanish, and "at times [he] corrected LaBarge as to the

numbering of these rights." Last, the judge determined that

although "Cueva's translation, obviously, could have been much

better," the defendant nevertheless "fully understood what was

going on."

a. Standard of review. In this case where the motion

judge's findings were based in part on his review of the

transcript of the defendant's interview with the police and in

part on a different judge's findings after an evidentiary

hearing, we apply the appropriate standard of review to each in

our review of the denial of the defendant's motion to suppress.

To the extent that the motion judge's findings are based on the

documentary evidence available to this court in the appellate
 11

record, our review is de novo. We give no deference to those

findings as "this court stands in the same position as . . . the

[motion] judge, and reaches its own conclusion unaffected by the

findings made by the [motion] judge." Commonwealth v. Novo, 442

Mass. 262, 266 (2004), quoting Berry v. Kyes, 304 Mass. 56, 57

(1939). Insofar as the motion judge's findings incorporate the

other judge's findings, "we accept [those] findings of fact and

will not disturb them absent clear error. " Commonwealth v.

Tremblay, 460 Mass. 199, 205 (2011). However, "[w]e make an

independent determination as to the correctness of the judge's

application of constitutional principles to the facts as found."

Id.

b. Analysis. In deciding the issue of voluntariness, the

motion judge acknowledged that the defendant's initial statement

that he would speak to the officers "as long as it was not used

in court" was "concerning," and Cueva's response, "No, don't

worry," was "even more concerning." Nonetheless, the motion

judge concluded that, "[a]ny understanding that his statements

would be confidential and not used in court, was completely

dissipated after Trooper LaBarge requested that the defendant

read his Miranda rights and when the defendant voluntarily

waived those rights." Additionally, the motion judge concluded

that LaBarge further dispelled the notion that the defendant's

statements would not be used against him when he "went out of
 12

his way to explain to the defendant, who obviously understood

some English, that he was not making any promises to the

defendant," and that he would report the defendant's statements

to the prosecutor and or the court. On this basis, the motion

judge concluded that the defendant's statement was voluntary and

a product of the defendant's "free will." There was no error.

"It is well established that a confession or an admission

is admissible in evidence only if it is made voluntarily."

Tremblay, 460 Mass. at 206. A statement is voluntary when it is

"the product of a 'rational intellect' and a 'free will,' and

not induced by psychological coercion." Commonwealth v. Monroe,

472 Mass. 461, 468 (2015), quoting Tremblay, supra at 207. The

burden is on the Commonwealth to "prove beyond a reasonable

doubt that 'in light of the totality of the circumstances

surrounding the making of the statement, the will of the

defendant was [not] overborne,' but rather that the statement

was 'the result of a free and voluntary act.'" Commonwealth v.

Baye, 462 Mass. 246, 256 (2012), quoting Commonwealth v. Durand,

457 Mass. 574, 595-596 (2010), S.C., 475 Mass. 657 (2016).

Because "the issue of voluntariness turns on 'all the

surrounding circumstances,'" Baye, 462 Mass. at 256, quoting

Dickerson v. United States, 530 U.S. 428, 434 (2000), we have

declined to adopt a "'bright-line rule[]' that the use of

improper interrogation techniques [such as promises of
 13

confidentiality] will always result in suppression of a

defendant's incriminating statements as involuntary." Baye,

supra, quoting Tremblay, 460 Mass. at 210-211. However, we have

warned, "assurances that a suspect's statements will not be used

to prosecute him will often be sufficiently coercive to render

the suspect's subsequent admissions involuntary even when the

suspect shows no outward signs of fear, distress[,] or mental

incapacity" (quotations omitted). Baye, supra at 262. We

conclude, as did the motion judge, that the assurance of

confidentiality in the particular circumstances of this case was

dissipated by the timing of the Miranda warnings and other

factors tending to show that the defendant did not rely on that

assurance in making his statement to the police.

Here, the Miranda warnings were given orally and in writing

after Cueva's response, "No, don't worry," to the defendant's

expressed concern that his statement not be used against him in

court. The motion judge found that the defendant understood the

warnings because they were written in Spanish, the defendant's

native language. To ensure that the defendant understood the

warnings, LaBarge required him to read each warning out loud,

and verbally indicate whether he understood after each. The

defendant did so as to each, and signed the Miranda waiver form.

Further, the defendant's familiarity with the warnings and his

correction of the officer's recitation of the warning supports
 14

this finding.5 There is no suggestion in this record that the

defendant did not understand the warnings, which plainly

informed the defendant that his statements could not be held

confidential. LaBarge's caution that the defendant's statement

would be conveyed to the prosecutor and the court sufficiently

dispelled any assurance that the defendant's statements would

not be used against him. Thus, the plain language of the

Miranda warnings, which the defendant understood, communicated

that the statements could not be held confidential.

We recognize, however, that the recitation of Miranda

warnings is not dispositive. See Commonwealth v. Libby, 472

Mass. 37, 41 (2015) ("Whether made in a custodial or

noncustodial setting, and even where there has been a valid

waiver of Miranda rights, we must consider the voluntariness of

a defendant's statement"). Rather, it is only one of several

factors we consider when reviewing the voluntariness of a

statement. See Monroe, 472 Mass. at 468. Apart from the

language of the Miranda warnings disavowing any promise of

confidentiality, we are persuaded by the judge's findings that

the defendant could not have believed that his statement would

5
The third warning (translated into English) read,
"Anything that you say can be employed against you." After
reading the warning out loud in Spanish, Trooper Robert LaBarge
asked him if he understood "number two," to which defendant
responded "Yes," clarified, "That's number three," and indicated
he also understood number two.
 15

be confidential and that the defendant did not rely on that

promise of confidentiality in making his statement.

After Cueva's, "No, do not worry," statement to the

defendant and after the Miranda warnings, the police

communicated in unambiguous terms that the statement would not

be confidential and the precise manner in which the statement

would be used. Although Cueva's translation of LaBarge's

statements was far from perfect, he nevertheless communicated to

the defendant that the police were making no promise to keep the

defendant's statement confidential. In fact, Cueva told the

defendant that they would report the information to "the

[prosecuting] attorney that is going to be against [him] when

[he] goes to court."6 Cueva also explained to the defendant that

LaBarge was not there to promise that if he made a statement,

the police would let him go or that his case would "come out

well without problems."

Further, Cueva's statement to the defendant that the

officers would speak of his cooperation with the court and try

to help him does not undermine our conclusion. We have

6
Although we conclude that the defendant's statement was
voluntary, we stress that Cueva's inaccurate translation,
particularly his failure to translate for LaBarge the
defendant's request for confidentiality and Cueva's response to
the request, brought this case close to the line that otherwise
would require suppression. This case makes plain the need for
law enforcement to use capable, trained translators who will
report verbatim the question asked and the response given.
 16

recognized that an officer is not prohibited from "suggest[ing]

broadly that it would be 'better' for a suspect to tell the

truth, [and] may indicate that the person's cooperation would be

brought to the attention of public officials or others involved,

or may state in general terms that cooperation has been

considered favorably by the courts in the past." Tremblay, 460

Mass. at 209, quoting Commonwealth v. Meehan, 377 Mass. 552, 564

(1979), cert. dismissed, 445 U.S. 39 (1980). See Commonwealth

v. Tolan, 453 Mass. 634, 643 (2009) (officer's statement

indicating police would help defendant and that defendant could

help herself by telling truth did not constitute assurance

forbidden by Meehan, supra); Commonwealth v. Mandile, 397 Mass.

410, 414 (1986) (statement not involuntary where defendant

initiated discussion of leniency and affirmatively sought deal,

and where officer indicated only that prosecutor would "discuss

leniency").

Moreover, as the Commonwealth points out, the defendant's

request to cease audio recording shortly after being provided

his Miranda rights and his refusal to sign Trooper LaBarge's

contemporaneous transcription at the conclusion of the interview

because he "didn't know where he stood in the case," suggest

that the defendant understood the statement could be used

against him. Thus, this case is distinguishable from Baye, 462

Mass. at 257, where the officers "employed multiple problematic
 17

tactics" throughout the ten-hour interrogation, including

exaggerating the strength of the evidence and dissuading the

defendant from speaking with an attorney by "clearly implying"

that his statements would not be used against him.

Last, the defendant was motivated by self-interest and the

fear of repercussions from Garcia when he approached his

probation officer offering to provide information about the

murder. As the judge found, the defendant was not concerned

about providing information to the police, he was particularly

concerned with retaliation from "that young [nineteen year old]

guy, that little guy has about [four] deaths under his belt."

The defendant added, "that young guy has me, he has me, you

know, he has me under a lot of pressure and terrified."

Accordingly, in light of the totality of the circumstances,

we conclude that the Commonwealth met its burden of proving

beyond a reasonable doubt that the defendant's statement was

made voluntarily. Therefore, any initial promise of

confidentiality that Cueva conveyed to the defendant did not

render his statement involuntary.

2. Evidentiary rulings. a. Bite mark testimony. The

defendant argues LaBarge's testimony that the duct tape found in

the bathroom trash barrel of Castro's apartment "had . . . what

was believed to be a bite mark or dental impression, where it

looked like -- I was told maybe somebody had bit it, when they
 18

were ripping it" constituted inadmissible hearsay and violated

his right to confrontation under the Sixth Amendment to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights. The testimony was admitted in the direct

examination of LaBarge regarding forensic evidence that the

police processed during the investigation in an effort to

identify possible suspects. LaBarge's response constituted

impermissible hearsay and should not have been admitted.

Because there was no objection at trial, our inquiry is

"'whether the impropriety created a substantial likelihood of a

miscarriage of justice.'"7 Commonwealth v. Fritz, 472 Mass. 341,

351 (2015), quoting Commonwealth v. Gentile, 437 Mass. 569, 579-

580 (2002). We conclude that it did not. The defendant's

7
Prior to trial, the defendant filed a motion in limine
that sought to exclude evidence of the "tooth mark." This
motion, however, does not properly preserve the defendant's
claim of error with respect to LaBarge's inadmissible hearsay
testimony. In Commonwealth v. Grady, 474 Mass. 715, 719 (2016),
we concluded that we would no longer require an objection to the
admission of evidence at trial where the defendant sought to
preclude the admission of the evidence through a motion in
limine. However, we cautioned that our ruling "is not as broad
as it may seem." Id. Specifically, "[a]n objection at the
motion in limine stage will preserve a defendant's appellate
rights only if what is objectionable at trial was specifically
the subject of the motion in limine." Id. In his motion in
limine, the defendant objected to the admission of the "tooth
mark" evidence because "the Commonwealth does not intend to call
any expert with sufficient education, training, or familiarity
with the subject matter of the anticipated testimony." Because
LaBarge's hearsay testimony was not the subject of the motion in
limine and the defendant failed to object at trial, the error
was not properly preserved.
 19

defense was that he was not in the apartment at the time of

Castro's murder, and that his DNA was possibly inadvertently

left on an indentation near the ripped edge of an approximately

twelve-inch piece of duct tape when he brought the bag of guns

to Garcia's Lawrence apartment. This explanation strains

credulity, as it required the jury to believe one of two

scenarios: (1) that a piece of duct tape with the defendant's

DNA near the ripped edge was transported in a bag along with the

guns to Garcia's apartment and then placed in the bathroom trash

barrel of Castro's apartment; or (2) that the defendant's DNA

was inadvertently transferred to the roll of duct tape and

remained on the tape after it was handled, ripped, and placed in

the bathroom trash barrel by someone else. Accordingly, we

conclude that no substantial likelihood of a miscarriage of

justice resulted from the impermissible hearsay testimony.

b. Testimony regarding the defendant's presence at the

scene. The defendant argues that the trial judge erred when he

permitted LaBarge to testify that he told the defendant that he

had information that the defendant was in the apartment at the

time of the crime because it constituted inadmissible hearsay

and violated his confrontation rights.8 The defendant's argument

is unavailing.

8
Specifically, the following colloquy between the
prosecutor and Trooper LaBarge was admitted at trial:
 20

It is well established that "if a defendant is charged with

a crime and unequivocally denies it, that denial is not

admissible in evidence." Commonwealth v. Bonnett, 472 Mass.

827, 838 (2015), quoting Commonwealth v. Morse, 468 Mass. 360,

375 n.20 (2014). But, we have also recognized that "accusatory

statements shed their hearsay character when they are offered

not for the truth of the matter asserted, but to provide context

for admissible statements of the defendant." Bonnett, supra at

838 n.13. Such was the case here.

As the trial judge pointed out, the accusation was not

offered for its truth, but rather to contextualize the

defendant's statement that is "arguably exculpatory." Absent

the prefatory statement to contextualize the defendant's

response (that he was outside the apartment that night), it

improperly suggests that the defendant, without any prompting,

generously put himself at the scene of the murder. Because the

statements were not introduced for the truth of the matter

asserted, their admission did not violate the defendant's right

The prosecutor: "Trooper, did you . . . tell Mr. Santana
that you believe that he was inside the apartment that night,
and that you had information that he was there that night?"

The witness: "Yes."

The prosecutor: "What was his response to that?"

The witness: "He denied being in the apartment."
 21

to confrontation under the Sixth Amendment. See Crawford v.

Washington, 541 U.S. 36, 59 n.9 (2004) ("The [Confrontation]

Clause . . . does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter

asserted").

To ensure that the jury did not use the statements for an

improper purpose, the judge instructed the jury that LaBarge's

statement was not admissible for its truth, or for any

information that the trooper did or did not have. See Bonnett,

472 Mass. at 838 n.13 (it may be appropriate for defendant to

request instruction "limiting the jury's consideration of the .

. . [accusatory] statements to its nonhearsay purpose").

Additionally, the judge emphasized that the jury were to use the

statement only for the purpose of understanding, weighing, and

considering the answer that the defendant gave in response to

the trooper's question. Accordingly we conclude that the judge

committed no error in admitting LaBarge's statement.

c. Substitute medical examiner testimony. The defendant

maintains that the judge erred in allowing the admission of the

testimony of a substitute medical examiner, who did not conduct

the autopsy of Castro and who based her testimony, in part, on
 22

the drawings of the nontestifying medical examiner.9 The

defendant filed a motion in limine seeking exclusion of the

testimony, and also objected at trial. The defendant argues

that the admission of the testimony violated his confrontation

rights under the Sixth Amendment and under art. 12. We

disagree.

In Commonwealth v. Reavis, 465 Mass. 875 (2013), we

outlined the parameters of the opinion testimony that a

substitute medical examiner may offer at trial. Specifically,

we instructed that "[a] substitute medical examiner who did not

perform the autopsy may offer an opinion on the cause of death,

based on his review of an autopsy report by the medical examiner

who performed the autopsy and his review of the autopsy

photographs." Id. at 883. We allow the substitute medical

examiner to opine on this issue because autopsy reports by other

medical examiners and autopsy photographs "are documents upon

which experts are accustomed to rely, and which are potentially

independently admissible through appropriate witnesses." Id.

Here, the substitute medical examiner's testimony remained

largely within the parameters we set forth in Reavis. The

medical examiner opined on Castro's cause of death (gunshot

wound), how the gunshot likely led to his death, and the amount

9
The medical examiner who conducted the autopsy of Castro
in August, 2004, was no longer employed by the office of the
chief medical examiner at the time of trial.
 23

of time that could have elapsed between the gunshot wound and

his death, all of which were permissible areas of inquiry under

Reavis. See Reavis, 465 Mass. at 883. To the extent that the

substitute medical examiner's opinion ventured into inadmissible

territory -- specifically, the location of the gunshot wound --

it was limited when the judge sua sponte paused the direct

examination of the witness, held a colloquy between the parties

at sidebar, and struck the improper testimony from the record.

Nevertheless, the defendant contends that he could not

meaningfully cross-examine the substitute medical examiner about

the reliability of the drawings produced by the medical examiner

responsible for performing Castro's autopsy; thus, the admission

of the testimony was inconsistent with Commonwealth v.

Greineder, 464 Mass. 580, 595, cert. denied, 134 S. Ct. 166

(2013). We are not persuaded. In Greineder, we reiterated that

where the pathologist responsible for performing the autopsy was

unavailable to testify at trial, the substitute expert witness

was prohibited from testifying to the pathologist's autopsy

findings. Id. at 585. However, consistent with previous cases,

we reaffirmed that independent expert opinion testimony, even

where based on facts and data originating from a nontestifying

examiner's report, does not infringe on a defendant's right of

confrontation because the defendant has the opportunity to

cross-examine the witness on "the foundation of [her] opinion."
 24

Id. at 584-589. Here, the substitute medical examiner testified

to her independent opinion and was available for cross-

examination on the foundation of that opinion. Thus, the

testimony was consistent with this court's mandates in Reavis

and Greineder, and its admission was not error.

3. DiGiambattista instruction. At trial, the defendant

asked the judge to instruct the jury pursuant to Commonwealth v.

DiGiambattista, 442 Mass. 423 (2004). The judge denied the

request, reasoning that because defendant requested the audio

recording device to be turned off, he was not entitled to the

instruction. The defendant argues that the trial judge erred in

declining to give a DiGiambattista instruction where a portion

of the defendant's interview with the police was not audio

recorded. We agree.

In DiGiambattista, 442 Mass. at 447, we held, "when the

prosecution introduces evidence of a defendant's confession or

statement that is the product of a custodial interrogation or an

interrogation conducted at a place of detention . . . , and

there is not at least an audiotape recording of the complete

interrogation, the defendant is entitled (on request) to a jury

instruction." We further determined that "the instruction is

appropriate for any custodial interrogation, or interrogation

conducted in a place of detention, without regard to the alleged

reasons for not recording that interrogation." Id. at 448.
 25

Although it would have been permissible for the prosecution to

raise as a justification for the incomplete recording the

defendant's affirmative request to cease recording, it "[did]

not obviate the need for a cautionary instruction." Id. at 449.

See Commonwealth v. Woods, 466 Mass. 707, 721 n.15, cert.

denied, 134 S. Ct. 2655 (2014) (defendant entitled to

DiGiambattista instruction "even where . . . the defendant

affirmatively requests that that the interview not be

recorded"). Thus, it was error for the judge to deny the

defendant's request for a DiGiambattista instruction.

Because the error was preserved, we must determine "whether

'the error did not influence the jury, or had but very slight

effect,'" and thus was nonprejudicial. Commonwealth v.

Christian, 430 Mass. 552, 563 (2000), quoting Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994). Applying this standard, we

conclude that the error was nonprejudicial. We have noted that

"the value of [a DiGiambattista] instruction is lessened where

. . . the defendant's statements, dubious as they may be, were

largely exculpatory." Woods, 466 Mass. at 721. Here, the

defendant's statement was at least partially exculpatory, as the

defendant claimed that he was not at the apartment at the time

of the murder, and only went to the apartment because Garcia

called him for a ride. In fact, the defendant's defense

strategy was, at least in part, dependent on the jury believing
 26

his statement.10 Therefore, we conclude that the denial of the

DiGiambattista instruction constituted nonprejudicial error, and

thus does not warrant reversal.

4. Motions for a mistrial. The defendant contends that

the denial of his motions for a mistrial constituted error where

the jury were repeatedly exposed to inadmissible evidence.

Prior to trial, the defendant filed a motion in limine seeking

to prevent reference to his prosecution in a later Superior

Court case in Suffolk County involving some of the same

individuals involved in Castro's killing. The trial judge did

not explicitly rule on the motion after the prosecutor indicated

that she was not seeking to introduce the evidence. At trial,

when asked about another trooper's role in the investigation of

Castro's murder, Trooper LaBarge explained that he asked the

other trooper to compare the latent print found from the roll of

duct tape in Castro's apartment against "four individuals that

were arrested in the city of Boston." Defense counsel

immediately objected, requested to go to sidebar, and moved for

a mistrial, arguing that the testimony, at least by inference,

implicated the defendant. After a colloquy outside the presence

of the jury, the judge denied the motion, but indicated he would

10
A major theme of defense counsel's closing was the fact
that the defendant, unlike the other people involved, cooperated
with the police and gave a statement because the defendant did
not commit the crime, and had no idea that the guns he
previously delivered to Garcia would be used in the robbery.
 27

strike the testimony from the record and give a curative

instruction.

Following the sidebar, the judge instructed the jury that

the trooper's testimony regarding four individuals being

arrested in the city of Boston was not evidence in the case as

it was struck from the record, and not for the jury to consider

"in any regard to this case." The judge further instructed:

"When an answer is stricken from the record, it doesn't
exist. When you determine what the facts are from the
case, you are sworn to determine those facts solely and
exclusively from the evidence presented in the case, and
you may never consider evidence anything that's been
stricken from the record."

Despite the judge's instruction, on the resumption of LaBarge's

direct testimony, in response to the prosecutor's question

regarding the fingerprints he asked the other trooper to

compare, LaBarge responded, "The four individuals I previously

spoke of." Again, defense requested a sidebar, and renewed his

motion for a mistrial. The judge again denied the motion,

struck the testimony, and gave a curative instruction. In his

instruction, the judge not only reminded the jury of his

previous instruction, he also reiterated that when an answer has

been struck, "it doesn't exist in the evidence, and you may not

consider it in anyway."

The defendant argues that LaBarge's testimony constituted

"prejudicial subsequent bad acts evidence" that carried the risk
 28

of "distracting the jury from the main issue." The denial of a

motion for mistrial is reviewed for abuse of discretion.

Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990). Given the

trial judge's "broad discretion in deciding whether to declare a

mistrial," we have instructed that "'this court should defer to

that judge's determination of whether [there was] prejudicial

error, how much any such error infected the trial, and whether

it was possible to correct that error through instruction to the

jury.'" Commonwealth v. Amran, 471 Mass. 354, 359 (2015),

quoting Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). This

is because "[a] trial judge is in the best position to determine

whether a mistrial, an extreme measure available to a trial

judge to address error, is necessary, or whether a less dramatic

measure, such as a curative instruction, is adequate." Amran,

supra at 360.

Here, Trooper LaBarge's two references to "four individuals

that were arrested in the city of Boston" were improper.

Although the trial judge noted during the colloquy outside the

presence of the jury that the trooper's comment was "entirely

inappropriate," he also pointed out that the jury did not

actually learn that the defendant was arrested for home invasion

in Suffolk County. Nor were the jury ever made aware that the

defendant was prosecuted and served time in prison for the home

invasion. Thus, the judge ultimately determined that the error
 29

could be cured by striking both responses and giving a "strong

cautionary instruction." See id. ("Where the judge promptly

struck the improper testimony and gave a highly specific

curative instruction, the judge acted appropriately and within

her discretion"). The curative instruction made clear that the

trooper's response was not evidence, and thus not to be

considered. Moreover, as the Commonwealth points out, the trial

judge previously had instructed the jury that the defendant "is

on trial for the indictments before the court, and those

indictments only." It is well settled that "[t]he jury are

presumed to follow the judge's instruction" to disregard the

evidence, id., and the record in this case does not suggest

otherwise. Accordingly, we conclude that the judge did not

abuse his discretion in denying the motions for mistrial.

5. The prosecutor's closing argument. The defendant

argues that certain remarks by the prosecutor during her closing

argument were prejudicial. "Remarks made during closing

arguments are considered in the context of the whole argument,

the evidence admitted at trial, and the judge's instructions to

the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).

a. Witness's "enhanced" hearing. The defendant first

contends that it was error for the prosecutor to argue that

Cedeno's hearing was enhanced because she was blindfolded.

According to the defendant, there were neither facts in evidence
 30

nor expert testimony to support such a claim. Because the

defendant did not object to this statement at trial, we must

determine whether the statement was improper, and "if so whether

[it] created a substantial likelihood of a miscarriage of

justice." Commonwealth v. Fritz, 472 Mass. at 351, quoting

Commonwealth v. Gentile, 437 Mass. at 579-580.

"A prosecutor must limit comment in [the] closing statement

to the evidence and fair inferences that can be drawn from the

evidence" (citation omitted). Commonwealth v. Carriere, 470

Mass. 1, 22 (2014). Although "a prosecutor may argue zealously

in support of inferences favorable to the Commonwealth's case,"

the requirement that the inferences "reasonably may be drawn

from the evidence" remains. Id. Such was not the case here.

The record is devoid of evidence, much less expert evidence,

suggesting that Cedeno had enhanced hearing due to her temporary

blindfolding.

Although impermissible, we conclude that no substantial

likelihood of a miscarriage of justice arose from the

prosecutor's statement. We have observed, "[i]n [certain]

circumstances, [an] isolated remark does not warrant a new

trial. 'Excusable hyperbole is not a ground for reversal, and

the jury are presumed to have a certain measure of

sophistication in sorting out excessive claims on both sides.'"

Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010), quoting
 31

Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004). Moreover, as

the Commonwealth points out, the prosecutor's enhanced hearing

statement was cumulative of other evidence suggesting that there

were four assailants present in the apartment with Cedeno and

Castro, including Cedeno's testimony that she knew four people

were present because she saw "feet walking around the

apartment." Last, when raising his objections to the

prosecutor's closing argument, defense counsel neither objected

nor requested a curative instruction on this ground. See

Commonwealth v. Ahart, 464 Mass. 437, 442 (2013) ("the absence

of any objection or request for a curative instruction by

experienced defense counsel is some indication that the comment

by the prosecutor could not have created a substantial

likelihood of miscarriage of justice").

b. Bite mark on the duct tape. The defendant next

contends that the prosecutor improperly argued that the

indentation in the duct tape found in the bathroom trash bin was

a bite mark. The Commonwealth argues that, based on the

evidence presented at trial, the jury reasonably could have

inferred that the indentation on the duct tape found in Castro's

bathroom was a tooth mark produced by someone who tore the tape.

We agree. Three pieces of evidence presented at trial support

our conclusion: (1) the end of the duct tape was torn, (2) the

presence of DNA was detected on the duct tape, and (3) saliva is
 32

among the human biological fluids that provides a source of DNA.

Therefore, we conclude that no prejudicial error arose from the

prosecutor's statement.

c. Characterization of DNA testimony. The defendant last

argues that the prosecutor improperly equated the DNA statistics

of a 99.999 per cent match with the proof beyond a reasonable

doubt standard. We disagree. As pointed out by the trial

judge, a close reading of the record reveals that the

Commonwealth's remarks regarding the DNA statistics did not

equate reasonable doubt to a percentage. Rather, the

prosecutor's remarks focused on the certainty, described in

terms of percentages, of the defendant's DNA matching the major

profile in the DNA mixture on the piece of duct tape found in

the bathroom trash bin. Accordingly, the prosecutor's remarks

did not constitute error.

Even if the remarks were error, they did not create a

substantial likelihood of a miscarriage of justice. Here again,

that fact that defense counsel neither objected nor sought a

curative instruction provides some indication that the remarks

did not create a substantial risk of a miscarriage of justice.

See Ahart, 464 Mass. at 442. Indeed, in raising his objections

to the prosecutor's closing argument, defense counsel stated

that because of the way the prosecutor characterized the DNA

statistics, he did not believe it mischaracterized the
 33

reasonable doubt standard, and thus did not object.

Additionally, the trial judge twice instructed the jury --

before and after closing arguments -- on the purpose of closing

arguments, noting they are an opportunity for the attorneys to

be zealous advocates for their respective clients, and

cautioning that the judge, not the attorneys, instruct on the

law that applies to the case. As we have observed, in cases

where "close questions arise whether the prosecutor has gone

over the line between fair and improper argument," we recognize

that "closing argument is identified as argument, the jury

understands that, instructions from the judge inform the jury

that closing argument is not evidence, and instructions may

mitigate any prejudice in the final argument." Commonwealth v.

Kozec, 399 Mass. 514, 517 (1987).

6. Relief pursuant to G. L. c. 278, § 33E. We have

conducted a complete review of the record pursuant to G. L.

c. 278, § 33E, and we discern no basis to grant relief. The

defendant argues that we should exercise our powers under § 33E

to reduce his murder in the first degree conviction to a

conviction of manslaughter or murder in the second degree. In

support of this request, the defendant points out that during

trial, the Commonwealth, for the second time, offered him a plea

to the lesser included offenses of manslaughter with a term of

imprisonment of from fifteen years to fifteen years and one day,
 34

which the defendant declined. That the Commonwealth offered the

defendant a plea arrangement does not provide grounds on which

to grant relief pursuant to § 33E and "is irrelevant to our

inquiry." Commonwealth v. Cintron, 435 Mass. 509, 525 (2001),

overruled on another ground by Commonwealth v. Hart, 455 Mass.

230, 242 (2009). Thus, the defendant's argument is unavailing,

and we decline to exercise our power pursuant to § 33E on this

ground.

Judgments affirmed.