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SJC-10726
COMMONWEALTH vs. CARLOS A. SEINO.
Norfolk. November 10, 2017. - May 8, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Constitutional Law, Confrontation of witnesses,
Assistance of counsel. Deoxyribonucleic Acid. Witness,
Expert. Evidence, Expert opinion, Death certificate, Chalk
drawing, Exculpatory. Practice, Criminal, Capital case,
Confrontation of witnesses, New trial, Assistance of
counsel.
Indictments found and returned in the Superior Court
Department on September 19, 2006.
The cases were tried before Paul A. Chernoff, J.
Brian J. Kelly for the defendant.
Pamela Alford, Assistant District Attorney, for the
Commonwealth.
BUDD, J. On the morning of August 3, 2002, the body of
Daniel DeCosta was discovered on a walkway behind the public
library in downtown Quincy. The defendant, Carlos A. Seino, was
indicted and ultimately convicted by a jury of murder in the
2
first degree on a theory of felony-murder and armed robbery in
connection with DeCosta's death. On appeal, the defendant
claims that the trial judge committed reversible error by
allowing the jury to be exposed to certain inadmissible hearsay
and by allowing one of the substitute expert witnesses to
testify to a match between the defendant's deoxyribonucleic acid
(DNA) profile and one obtained from the victim's clothing. In
addition he seeks a new trial, claiming that his trial counsel
was ineffective and that government officials committed
misconduct in the course of investigating and prosecuting him.
After full consideration of the trial record and the defendant's
arguments, we affirm the defendant's convictions and 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.
In the spring of 2002, the defendant moved into an
apartment with two roommates in Quincy. However, by August of
that year, the defendant was "weeks and weeks late" on the rent.
On August 2, the defendant's roommate warned the defendant that
he would be asked to move out if he did not pay the total amount
that he owed by the following day. The defendant paid a portion
of the amount due to his roommate that evening before going out.
3
In the meantime, the victim spent several hours that night
at a local Quincy bar, where he cashed two checks for a total of
$6031 and put the money in his jeans pocket. At the bar, the
victim drank several beers, played Keno2 and darts, and
socialized. He appeared to be drunk as he bought drinks for
patrons and "flaunt[ed]" his money such that one of his friends
urged him to "put [it] away." He spent approximately eighty
dollars while at the bar that night.
The defendant arrived at the bar at approximately midnight.
He saw some people he knew and observed the victim (whom he did
not know) staggering around with Keno tickets. The defendant
stayed for between twenty and thirty minutes, leaving at
approximately 12:30 A.M. The victim left the bar when it
closed, around 1 A.M., traveling by foot.
At approximately 1:30 A.M., the defendant woke up his
roommate and gave him the remaining money owed in cash. Later
that morning, the roommate observed the defendant in front of
1 The bartender gave the victim one one hundred dollar bill,
two fifty dollar bills, twenty twenty dollar bills, and three
one dollar bills.
2 Keno is a State lottery game in which a player wagers a
bet, selecting up to twelve numbers from a field of eighty. The
lottery randomly selects and displays on a monitor twenty
numbers, and the player wins prize money if one or more of the
player's numbers are displayed. 961 Code Mass. Regs. § 2.58
(1998).
4
the television listening to the Quincy public access channel,
which was broadcasting the police scanner.
The victim's lifeless body was discovered at approximately
7 A.M. on a walkway behind the Quincy public library with
contusions to his nose and the back of his head. Although his
wallet was still on his person, most of the cash he had had was
missing. Investigators took samples from the defendant's
clothing, including a snippet from the left front jeans pocket
and a snippet from the front of the victim's shirt, both of
which had bloodstains. The DNA extracted from the jeans pocket
sample was a mixture that matched the DNA profiles of both the
victim and the defendant. The DNA extracted from the bloodstain
on the victim's shirt matched the profile of the defendant
alone.
The defendant, who testified at trial, offered weak alibi
evidence to demonstrate that he did not have the opportunity to
commit the crime.3 Further, he suggested the existence of a
third-party culprit and speculated that blood from a cut on his
hand ended up on the victim's clothing via incidental contact at
the bar.
3 The defendant testified that he visited several bars in
succession after leaving the bar where the victim spent several
hours. However, even taking the defendant at his word, he could
have done all that he claimed and still committed the crime.
5
Discussion. In his direct appeal, the defendant asserts
violations of his constitutional right to confront witnesses
with respect to testimony regarding portions of the victim's
autopsy report and death certificate, DNA charts used as chalks,
and evidence of matching DNA profiles offered through a
substitute expert witness. Following oral argument, the
defendant filed a motion for a new trial with this court,
alleging ineffective assistance of counsel and Brady violations,
among other claims. See G. L. c. 278, § 33E; Brady v. Maryland,
373 U.S. 83, 87 (1963). We examine each of the defendant's
arguments in turn.
1. Autopsy and death certificate evidence. During
testimony by Dr. Richard Evans regarding the cause of the
victim's death, the doctor, who did not perform the autopsy,
referred to certain statements in the autopsy report and the
death certificate -- documents that he did not author. The
defendant argues that it was a violation his right to confront
witnesses to allow Evans to read in evidence what amounted to
testimonial hearsay statements without the defendant having the
ability to cross-examine the declarant, i.e., the medical
examiner who created the documents.4 We agree. However, we
conclude that the error was harmless beyond a reasonable doubt.
4 Hearsay is testimonial when a "reasonable person in [the
declarant's] position would anticipate [it] would be used
6
As a general matter, a substitute medical examiner
"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, as these are documents upon which experts are
accustomed to rely, and which are potentially independently
admissible through appropriate witnesses."
Commonwealth v. Reavis, 465 Mass. 875, 883 (2013). Here, Evans
reviewed the case folder of the medical examiner who performed
the autopsy, which included the autopsy report, a toxicology
report, handwritten notes and diagrams, and photographs.5 Beyond
properly offering his opinion on the cause of death based on the
case file and his examination, however, Evans went further,
testifying as to statements contained in the autopsy report and
the death certificate, namely, the length of the lacerations on
the victim's head and the stated cause of death, respectively.
The Sixth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights guarantee a
criminal defendant's right to confront each of the government's
witnesses. See Melendez-Diaz v. Massachusetts, 557 U.S. 305,
309 (2009); Commonwealth v. Sanchez, 476 Mass. 725, 732 (2017).
Thus, a judge at a criminal trial may not permit the
introduction of testimonial hearsay without the defendant having
against the accused in investigating and prosecuting a crime."
See Commonwealth v. McCowen, 458 Mass. 461, 480 (2010).
5 As the chief medical examiner, Evans endorsed the autopsy
report at the time it was written. Moreover, he examined tissue
from the victim's brain and memorialized his findings.
7
an opportunity to cross-examine the declarant. See Melendez-
Diaz, supra at 309, 311.
Although Evans permissibly relied on the medical examiner's
case folder to form his opinion as to the cause of the victim's
death, it was error for him to testify to statements contained
in that report and the death certificate, because the statements
were testimonial hearsay and the person who created the
documents was not available for cross-examination. See
Commonwealth v. McCowen, 458 Mass. 461, 480, 483 (2010). See
also Commonwealth v. Greineder, 464 Mass. 580, 592-593, cert.
denied, 571 U.S. 865 (2013); Commonwealth v. Avila, 454 Mass.
744, 763 (2009).
Because the defendant objected to the statements contained
in the autopsy report and death certificate at the time of
trial, we review the constitutional error to determine whether
it was harmless beyond a reasonable doubt. Commonwealth v.
Nardi, 452 Mass. 379, 394 (2008).
Review under this standard requires us to consider, among
other factors:
"[1] the importance of the evidence in the prosecution's
case; [2] the relationship between the evidence and the
premise of the defense; [3] who introduced the issue at
trial; [4] the frequency of the reference; [5] whether the
erroneously admitted evidence was merely cumulative of
properly admitted evidence; [6] the availability or effect
of curative instructions; and [7] the weight or quantum of
evidence of guilt."
8
Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).
Here, the erroneously admitted statements from the death
certificate and the autopsy report were of little, if any,
consequence. First, the improper testimony was cumulative of
Evans's properly admitted opinion as to the cause of death.
Evans opined as to the cause of death independently from what
was on the death certificate. See Commonwealth v. Scesny, 472
Mass. 185, 198 (2015); Commonwealth v. Emeny, 463 Mass. 138,
145-146 (2012). Further, the statements regarding the length of
the head lacerations had nothing to do with whether the
defendant was the assailant: they did not tend to incriminate
the defendant, nor did they detract in any way from the
defense's argument that he was not the assailant. Finally,
given the DNA evidence, discussed in more detail infra, together
with the evidence of motive and opportunity, and taking
everything into consideration, we conclude that the errors did
not contribute to the guilty verdicts. See Commonwealth v.
Sinnott, 399 Mass. 863, 872 (1987).
2. DNA evidence. At trial, the Commonwealth presented DNA
evidence through three expert witnesses who gave opinions
implicating the defendant in the killing. The defendant
challenges aspects of the testimony of all three.
a. Analysis of the evidence. Red-brown stains found on
the front left pocket of the victim's jeans and on the front of
9
the victim's shirt were determined to be bloodstains. A snippet
of each item was prepared for DNA analysis, and the resulting
profiles were compared to the defendant's DNA profile when it
was obtained in 2006.6
The DNA profile from the bloodstain on the jeans pocket was
developed at a Cellmark Diagnostics (Cellmark) laboratory in
Maryland (Cellmark-Maryland).7 That laboratory's former
director, Dr. Robin Cotton, testified that the DNA found on the
jeans was a mixture of two profiles, that the victim was one
potential contributor to the DNA sample, and that the second
contributor was a man.8 When the defendant's DNA became
available, an analyst from a Cellmark laboratory in Texas
(Cellmark-Texas), Matthew DuPont, compared the profile from the
jeans sample to the defendant's DNA profile and opined that the
6 In 2006, the defendant pleaded guilty to a machete attack
and was required to submit a sample of his deoxyribonucleic acid
(DNA) for the Combined DNA Index System database.
7 The State police crime laboratory has a contract with
Cellmark Diagnostics (Cellmark), a private DNA-testing
laboratory, under which Cellmark provides forensic DNA-testing
services. Cellmark has several locations across the United
States and contracts with a number of law enforcement agencies
throughout the country. The DNA evidence in this case was
processed and analyzed at the State police crime laboratory as
well as in two different Cellmark laboratories.
8 Cotton determined the second contributor was a man by
subtracting the victim's profile and noting that the remaining
DNA contained a Y-chromosome.
10
defendant was the second contributor.9 DuPont also testified to
the statistical probability of such a match: one in 17.34
quadrillion of the African-American population, one in 1.854
quintillion of the Caucasian population, one in 1.753
quintillion of the Southwest Hispanic population, and one in
2.475 quintillion of the Southeast Hispanic population.
The sample from the victim's shirt was processed by the
State police crime laboratory. A representative from that
laboratory, Laura Bryant, testified that the defendant's DNA
profile matched the profile from the bloodstain on the victim's
shirt. Bryant also testified to the probability of a random
match of the profiles of the DNA sampled from the victim's shirt
and the defendant's DNA, concluding that the likelihood of a
random, unrelated person having a DNA profile that matched the
sample was about one in 1.79 quintillion of the Caucasian
population, one in 16.74 quintillion of the African-American
population, and one in 2.375 quintillion for the Hispanic
population.
9 Although Laura Bryant, an analyst from the State police
crime laboratory, testified that the results from the pocket of
the victim's jeans were inconclusive as to whether it matched
the defendant's DNA profile when she performed the analysis, the
two laboratories used different tests on the same material.
DuPont tested for two additional genetic locations using an
amplification tool different from that used in Bryant's
laboratory.
11
b. Confrontation issues. The defendant asserts that the
Commonwealth violated his right to confront witnesses when
Cotton and Bryant presented charts and when DuPont testified as
to a comparison between the defendant's DNA profile and the
profile developed from the bloodstain on the victim's jeans. We
find no reversible error.
i. Contested chalks. At trial, Cotton and Bryant, neither
of whom conducted the DNA analysis, opined as to their own
conclusions regarding the DNA testing on the samples taken from
the victim's jeans and shirt respectively. The defendant
concedes that the opinion testimony of these two expert
witnesses based on the work of others in their laboratories was
admissible. See, e.g., McCowen, 458 Mass. at 483; Commonwealth
v. Barbosa, 457 Mass. 773, 786 (2010), cert. denied, 563 U.S.
990 (2011). However, the defendant claims error in the experts'
use of charts that contained test results obtained by other,
nontestifying analysts.
Both Cotton and Bryant used charts as chalks to explain
their conclusions to the jury. The charts contained data
generated by other analysts and showed the raw data generated by
the DNA tests: numbers or letters assigned to genetic locations
12
and "spikes" from an electropherogram.10 Cotton used two DNA
charts, one for the jeans sample and one for the victim's
profile. Referring to the charts, Cotton showed the jury where
the genetic locations from the jeans sample matched the genetic
locations from the victim's profile. In addition, Cotton used
data from an electropherogram to demonstrate to the jury how she
had concluded that a second man had contributed DNA to the jeans
sample. For her part, Bryant guided the jury through each step
of the comparison, pointing out on the chart generated from the
shirt bloodstain the numbers that matched those on the chart
generated from the defendant's DNA. In less detail, she also
described to the jury the results of several comparisons,
referring each time to tables from the report.
Similar to our conclusion with respect to the testimony of
Evans discussed supra, it was improper for the Commonwealth to
show the data the experts relied upon to the jury during direct
examination without giving the defendant an opportunity to
cross-examine those who obtained the results. McCowen, 458
Mass. at 483. Because the defendant did not preserve an
objection to the use of the charts, we review the error for a
10An electropherogram is a plot of results created when an
analyst conducts an electrophoresis test. The plot resembles
waves or peaks and allows analysts to visualize results.
13
substantial likelihood of a miscarriage of justice.11 See
Commonwealth v. Carmona, 428 Mass. 268, 271 (1998). Under the
substantial likelihood of a miscarriage of justice standard, we
affirm flawed convictions only where we are "substantially
confident that, if the error had not been made, the jury verdict
would have been the same." Commonwealth v. Ruddock, 428 Mass.
288, 292 n.3 (1998). See Commonwealth v. Montrond, 477 Mass.
127, 134 (2017).
We conclude that there was no substantial likelihood of a
miscarriage of justice because the charts did not taint the
analysts' independent opinions, which, as discussed supra, were
properly admitted. McCowen, 458 Mass. at 484. The expert's
opinions were what mattered to the jury, who likely would have
found the raw data incomprehensible without the accompanying
expert testimony. Barbosa, 457 Mass. at 792. The DNA charts
merely displayed genetic locations, not any information
regarding a match or the statistical probability thereof.
11The defendant argues that this issue was preserved based
on Commonwealth v. Grady, 474 Mass. 715, 719 (2016), in which
this court held that a defendant need not "object to the
admission of evidence at trial where he or she has already
sought to preclude the very same evidence at the motion in
limine stage." Grady has no retroactive application.
Commonwealth v. Vazquez, 478 Mass. 443, 448 n.2 (2017). In any
case, even if Grady were retroactive, it would not apply here,
where the defendant opposed the Commonwealth's motion in limine
to substitute expert witnesses, not the charts containing the
DNA results. In fact, at trial the defendant objected only to
the size of the charts, not their statistical contents.
14
Because the findings contained in the charts "had no meaningful
probative value without [the] expert[s'] testimony, the
erroneous admission of these underlying facts in evidence did
not result in a substantial likelihood of a miscarriage of
justice." McCowen, supra. See Commonwealth v. Kolenovic, 478
Mass. 189, 205-206 (2017); Barbosa, supra at 792-793. See also
Commonwealth v. Gonzalez, 469 Mass. 410, 416 (2014) ("the
admission in evidence of those [charts] did not so materially
strengthen the Commonwealth's case as to create a substantial
likelihood of a miscarriage of justice"). The error does not
require reversal.
ii. Contested testimony. The defendant contends that it
was reversible error to allow DuPont of Cellmark-Texas to
testify that the defendant's DNA profile matched one of the
profiles developed from the DNA found on the victim's jeans.
Citing Commonwealth v. Tassone, 468 Mass. 391, 402 (2014), the
defendant argues that allowing DuPont to do so violated the
defendant's confrontation rights because an analyst from
Cellmark-Maryland rather than Cellmark-Texas developed the DNA
profile from the jeans.
In Tassone, the Commonwealth presented an expert from the
State police crime laboratory, who testified regarding a match
between DNA from the defendant and DNA from the crime scene.
Id. at 401. However, because a different laboratory did the
15
actual testing, and because the Commonwealth did not call an
expert affiliated with that laboratory, we held that the
defendant was "denied the opportunity to explore through cross-
examination whether the opinion [was] flawed." Id. at 402.
That was not the case here.
Here, the jury heard from, and the defendant had the
opportunity to cross-examine, Kristen Sullivan, the analyst from
the State police crime laboratory who developed the defendant's
DNA profile from a known sample; Cotton, the supervisor from the
laboratory (Cellmark-Maryland) that developed the DNA profile
from the red-brown stain on the victim's left front jeans
pocket; and DuPont, the analyst from Cellmark-Texas, who
compared the two profiles, and whose opinions regarding the
match and the statistical analysis were his own. There was no
error.12
3. Motion for a new trial. Following oral argument on his
direct appeal, the defendant filed a motion for a new trial,
claiming, among other things, ineffective assistance of counsel
and Brady violations. See G. L. c. 278, § 33E.
a. Ineffective assistance of counsel. The defendant
claims that his counsel was ineffective for (1) failing to
12The defendant's further argument that it was error for
DuPont to have relied on Cotton's or Bryant's testimony is
unavailing; as we explained supra, the testimony from those
experts was properly admitted.
16
object to the testimony of substitute witnesses, (2) waiving the
presence of the defendant's DNA expert to observe the
Commonwealth's DNA testing, (3) failing to call a pathologist or
blood-spatter expert at trial, and (4) failing to challenge
Combined DNA Index System (CODIS) evidence based on the general
mishandling of DNA evidence at the State police crime
laboratory. The defendant also raises additional claims of
ineffective assistance pursuant to Commonwealth v. Moffett, 383
Mass. 201, 208 (1981), namely, improperly stipulating to police
diligence in the investigation; failing to investigate alibi
witnesses in a timely way; and employing an investigator with a
conflict of interest.
Because the defendant was convicted of murder in the first
degree, rather than evaluating claims of ineffective assistance
under the traditional standard of Commonwealth v. Saferian, 366
Mass. 89, 96 (1974),13 we apply instead the more favorable
standard of G. L. c. 278, § 33E, to determine whether there was
a substantial likelihood of a miscarriage of justice.
Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), S.C., 469
Mass. 447 (2014). See Commonwealth v. LaCava, 438 Mass. 708,
13Under Commonwealth v. Saferian, 366 Mass. 89, 96-97
(1974), the standard is whether an attorney's performance fell
measurably below that which might be expected from an ordinary
fallible lawyer and, if so, whether such ineffectiveness has
likely deprived the defendant of an otherwise available
substantial defense.
17
712-713 (2003), quoting Commonwealth v. Harbin, 435 Mass. 654,
656 (2002). That is, we determine whether defense counsel erred
in the course of the trial and, if so, "whether that error was
likely to have influenced the jury's conclusion." Wright, supra
at 682. Under this standard, the defendant bears the burden of
demonstrating both error and harm. Commonwealth v. Barbosa, 477
Mass. 658, 674 (2017). Here, the defendant has not met his
burden.
i. Substitute witnesses. As in his direct appeal, the
defendant claims in his motion for a new trial that it was error
for certain substitute witnesses to testify to factual findings
appearing in exhibits, chalks, and reports. In his motion for a
new trial, he shifts the focus of the blame from the trial judge
to his trial counsel, claiming ineffective assistance where
counsel failed to object to the testimony of the substitute
witnesses. We reviewed this claim in part 2.b, supra,14 and
found that any erroneously admitted evidence that came in by way
of substitute witnesses without objection did not create a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Holley, 476 Mass. 114, 121 (2016).
14 As discussed in part 1, supra, trial counsel objected to
the admission of statements contained in the autopsy report and
death certificate. Although the evidence was admitted
erroneously, we concluded that the error was harmless beyond a
reasonable doubt.
18
ii. Waiver of presence of defendant's expert during DNA
testing. The defendant also claims his trial counsel was
ineffective for failing to send an expert to the State police
crime laboratory15 to observe the DNA testing performed by the
Commonwealth that consumed the entirety of (i.e., exhausted)
particular samples.16 We need not decide whether trial counsel
erred because the defendant has failed to show that he was
harmed. See, e.g., Commonwealth v. Hampton, 457 Mass. 152, 168
(2010); Commonwealth v. Bradshaw, 385 Mass. 244, 274 (1982).
First, we note that in fact trial counsel had selected an
expert to attend the testing; however, that expert had passed
away before the testing could be performed. At the time that
defense counsel waived the presence of a defense expert, the
defendant had been in custody for over one year and had an
expectation that the DNA testing would be beneficial to him.
Further, the State police crime laboratory was experiencing
delays. Thus, trial counsel's waiver of a defense expert's
presence at the testing was tactical, and not "manifestly
unreasonable when made." Commonwealth v. Field, 477 Mass. 553,
556 (2017).
15As we discussed supra, three different laboratories were
involved in the DNA testing at issue in this matter: two
Cellmark laboratories and the State police crime laboratory.
16Prior to performing testing that exhausts a sample, the
Commonwealth must request authorization from the defendant. See
Commonwealth v. Williams, 455 Mass. 706, 710 (2010).
19
Second, only three out of a total of eight samples were
exhausted during testing.17 Of those three samples, none matched
the DNA profile of the defendant.18 The only sample tested at
the State laboratory that matched the DNA profile of the
defendant, the bloodstain from the victim's shirt discussed
supra, was not exhausted. As the defendant has failed to
demonstrate any prejudice as a result of not having his own
expert present during the testing, there can be no substantial
likelihood of a miscarriage of justice. Cf. Commonwealth v.
Alicea, 464 Mass. 837, 850-851 (2013).
iii. Failure to call particular expert witnesses. In
preparation for trial, defense counsel engaged both a
pathologist and a blood spatter expert, both of whom assisted
counsel in evaluating the Commonwealth's evidence and in
preparing for cross-examination of the Commonwealth's experts.
The defendant claims that his counsel's failure to call those
experts to testify at trial constituted ineffective assistance.
We disagree.
The defendant asserts that the pathologist could have
offered an alternative theory on cause of death, but he suggests
17The three exhausted samples were a drop of blood from a
railing and clippings from two of the victim's fingernails.
18The DNA from the blood from the railing did not match the
defendant's DNA. Neither of the fingernail clipping samples
provided sufficient material to draw any conclusions.
20
no such alternative theory. As for the blood spatter expert,
the defendant claims that the expert could have explained that
the defendant's blood on the victim's shirt was from the
defendant's injured hand and was transferred there as the victim
passed the defendant inside the bar. The defendant fails to
offer an expert affidavit, or anything else, to support this
theory. See Commonwealth v. Linton, 456 Mass. 534, 555-556
(2010). The defendant has failed, therefore, to meet his burden
of showing ineffective assistance.19 See Alicea, 464 Mass. at
850-851.
iv. Strategic choices regarding references to CODIS and
the State police crime laboratory. The defendant next claims
that his counsel was ineffective for failing to attack the
reliability of the Commonwealth's DNA evidence based on
mismanagement at the State police crime laboratory. We
disagree.
As we explained supra, after the victim was killed, several
years passed before the Commonwealth focused on the defendant as
a suspect. The Commonwealth compared the defendant's DNA
profile to crime scene samples after his DNA sample became
available in CODIS as a result of a conviction in an unrelated
19We further note that, through cross-examination of the
Commonwealth's experts, trial counsel undermined the
Commonwealth's cause-of-death theory and elicited evidence to
support the defense's theory of how the defendant's blood was
transferred to the victim.
21
crime. Defense counsel sought to exclude any reference to the
defendant's DNA profile being in the CODIS database so that the
jury would not learn that the defendant had a conviction in an
unrelated matter, or speculate about why the defendant's DNA had
been entered into the database. For its part, the Commonwealth
was concerned that if the jury did not know the circumstances in
which the police came to focus on the defendant, they might
conclude that the Commonwealth had been unduly slow or
inattentive during the investigation. Ultimately, the parties
compromised: the Commonwealth would not reference CODIS, and
the defendant would stipulate to police diligence in the
investigation.
Because trial counsel determined that it would be in the
defendant's best interest for the jury not to hear about CODIS,
this necessarily meant that she would not be able to elicit
evidence regarding the alleged mismanagement of CODIS
administration at the State police crime laboratory. This was a
reasonable strategic choice, and was therefore not ineffective
assistance of counsel. See Field, 477 Mass. at 556-557 (2017).
See also Commonwealth v. Morgan, 453 Mass. 54, 60 (2009).
v. Moffett claims. The defendant also argues that his
trial counsel was ineffective for stipulating to the diligence
of the police in their investigation; for failing to investigate
the defendant's alibi witnesses in a timely way; and for using a
22
private investigator who had an alleged conflict of interest.
None of these claims has merit.
First, the defendant asserts that he disagrees now with the
stipulation regarding diligent police work because the
prosecution and the police withheld exculpatory information from
the defense. This argument is misplaced. As discussed supra,
trial counsel stipulated that law enforcement acted diligently
over the four-year period between the death of the victim and
the arrest of the defendant so that the jury would not learn
that the defendant had been convicted of an unrelated crime.20
This stipulation had nothing to do with the mishandling of
allegedly exculpatory evidence (discussed further infra).
Second, although the defendant claims that his trial
counsel failed to seek out alibi witnesses in a timely way, his
trial counsel disputes having been given a list of potential
witnesses. At any rate, as discussed supra, the defendant
testified to his own movements that night, and the Commonwealth
aptly pointed out that it was possible for the defendant to have
done everything he claimed to have done and yet still have had
the opportunity to kill the victim. As the defendant does not
say who his alibi witnesses would have been or how their
testimony would have been exculpatory given his own testimony,
20We note that trial counsel's stipulation came before the
defendant could have learned of any alleged withheld or
destroyed evidence.
23
he has not shown that their absence prejudiced him. Cf. Morgan,
453 Mass. at 61 (failure to "show how [a witness] could have
aided" defendant's case fatal to defendant's claim of
ineffective assistance for failure to call witnesses).
Third, the defendant claims that his counsel was
ineffective for hiring an investigator who was a former Quincy
police officer. According to defense counsel's affidavit, the
investigator was never employed by Quincy police in any
capacity, and the defendant has failed to prove otherwise. See
Commonwealth v. Comita, 441 Mass. 86, 93 (2004).21
b. Alleged Brady violations. The Commonwealth must
disclose to the defense any material, exculpatory evidence over
which the prosecution has control. Commonwealth v. Sullivan,
478 Mass. 369, 380 (2017). See Brady, 373 U.S. at 87. This
duty extends to evidence "in the possession of the police who
participated in the investigation and presentation of the case."
Commonwealth v. Tucceri, 412 Mass. 401, 407 (1992).
The defendant claims that the Commonwealth violated his due
process rights by failing to preserve investigator notes and by
21Even accepting the defendant's allegation as true, there
would be no conflict of interest. See Commonwealth v. Stote,
456 Mass. 213, 218 (2010), quoting Commonwealth v. Shraiar, 397
Mass. 16, 20 (1986) ("It is the defendant's burden to prove an
actual conflict of interest by presenting 'demonstrative proof
detailing both the existence and the precise character of this
alleged conflict of interest; we will not infer a conflict based
on mere conjecture or speculation'").
24
failing to disclose a photograph of his injured hand. Where the
defendant claims that the Commonwealth lost or destroyed
evidence, he bears the initial burden of showing "a reasonable
possibility, based on concrete evidence," that the evidence was
exculpatory.22 Commonwealth v. Williams, 455 Mass. 706, 718
(2010), quoting Commonwealth v. Willie, 400 Mass. 427, 433
(1984). Here, he has failed to meet that burden. See Williams,
supra; Commonwealth v. Cintron, 438 Mass. 779, 784-785 (2003).
i. Notes. A State police sergeant destroyed his
handwritten notes of an interview with the defendant after
preparing his police report.23 Although the defendant was
necessarily aware of what took place during his interview, and
was provided with a copy of the police report, he claims that he
was deprived of the ability to mount a defense without the
underlying notes. The defendant has not made any showing,
however, as to how the notes would have differed from the report
or otherwise would have been exculpatory. Further, the
defendant had a full opportunity to cross-examine the sergeant
22The defendant has not established that the police
destroyed the notes or photograph "in bad faith or recklessly."
Commonwealth v. Sanford, 460 Mass. 441, 450 (2011), quoting
Williams, 455 Mass. at 718. The defendant cannot, therefore,
take advantage of the analysis more favorable to the defendant
for such cases, which would require the Commonwealth to show
that "the lost or destroyed evidence was not potentially
exculpatory." See Sanford, supra.
23The trooper destroyed the notes in the ordinary course of
business and well before the defendant became a suspect.
25
about the notes, the report, and any potential discrepancies
between the two. The defendant has failed to carry his burden.
See Commonwealth v. Kater, 432 Mass. 404, 420-421 (2000).
ii. Photograph. As for the alleged photograph of the
defendant's injured hand, the defendant has failed to
demonstrate that such a photograph existed or that it would have
been exculpatory. See Comita, 441 Mass. at 93, quoting
Commonwealth v. Bernier, 359 Mass. 13, 15 (1971) (in motion for
new trial, defendant bears burden of proving "facts that are
'neither agreed upon nor apparent on the face of the record'").
At trial, the defendant testified that the police required
him to "peel [his bandage] back so they could take a photograph"
of his injured hand. However, the prosecutor did not have such
a photograph and stated that he was unaware of one. The
defendant alleges now that the Commonwealth has either withheld
or destroyed the photograph.
The defendant has made no showing, however, of what a
photograph of his injured hand would have added to his case.
The Commonwealth never disputed that the defendant's hand was
injured: indeed, two witnesses testified to observing the hand
injury. The defendant has thus failed to show that such a
photograph, even assuming it existed, would have been
exculpatory. See Commonwealth v. Laguer, 448 Mass. 585, 595,
598 (2007).
26
c. Remaining Moffett claims. Finally, the defendant's
remaining Moffett claims are without merit. There is no basis
in the evidence that the police altered the crime scene or moved
the victim's body as the defendant claims. See Commonwealth v.
Gentile, 437 Mass. 569, 581 (2002). Nor is there evidence,
beyond the defendant's bald assertion, that pictures of the
crime scene were inaccurate due to renovations. Finally, the
defendant has presented no evidence of illegal surveillance
while he was detained in the Norfolk County house of correction,
or that any such illegal surveillance was relied upon at trial.
See Comita, 441 Mass. at 93.
4. Review under G. L. c. 278, § 33E. We have reviewed the
briefs and the entire record and discern no reason to reduce the
degree of guilt or grant a new trial pursuant to our power under
G. L. c. 278, § 33E.
Judgments affirmed.
Motion for a new trial
denied.