Commonwealth v. Williams

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SJC-11656

COMMONWEALTH vs. DEMERY WILLIAMS.

Hampden. November 6, 2015. - October 17, 2016.

Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.1

Homicide. Robbery. Assault and Battery by Means of a Dangerous
Weapon. Joint Enterprise. Felony-Murder Rule. Evidence,
Joint venturer, Wiretap, Admissions and confessions, Expert
opinion. Electronic Surveillance. Constitutional Law,
Speedy trial, Confrontation of witnesses. Witness, Expert,
Unavailability. Cellular Telephone. Deoxyribonucleic
Acid. Search and Seizure, Warrant. Practice, Criminal,
Capital case, Speedy trial, Admissions and confessions,
Confrontation of witnesses, Instructions to jury,
Assistance of counsel, Loss of evidence by prosecution.

Indictments found and returned in the Superior Court
Department on September 26, 2011.

The cases were tried before John J. Agostini, J.

Kathleen M. McCarthy for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.

1
Justice Cordy participated in the deliberation on this
case prior to his retirement.
 2

LENK, J. The defendant was convicted as a joint venturer

of murder in the first degree, armed robbery, and assault and

battery by means of a dangerous weapon in connection with the

death of William Jones in January, 2010. On direct appeal from

that conviction, he argues that his motions for required

findings of not guilty should have been granted, and that his

case should have been dismissed on speedy trial grounds. In

addition, he argues that certain evidence, including his

statements to police, should not have been admitted at trial.

The defendant also seeks relief under G. L. c. 278, § 33E.

Having reviewed the entire record, we affirm the convictions and

discern no reason to exercise our authority to grant

extraordinary relief.

1. Factual background. We recite the facts the jury could

have found, reserving certain details for later discussion. At

approximately 8 A.M. on January 22, 2010, the defendant, an

employee at a tomato processing plant in Hartford, Connecticut,

told his supervisor that he needed to leave work in order to

conduct a drug deal. The supervisor gave him permission to

leave, and the defendant was picked up by Jones in a white

Saturn sport utility vehicle (SUV). The pair drove to a house

on Florida Street in Springfield, where Jones, a drug dealer,

had been led to believe that he would buy drugs from Curtis

Combs, an acquaintance of the defendant. The defendant,
 3

however, knew that Jones was going to be robbed. He went into

the house to introduce Jones to Combs, but returned outside to

serve as a lookout.

The defendant heard "tussling" inside the house as well as

a "zzzt, zzzt" sound. Combs then brought Jones out of the house

while striking him in the back of the neck with a stun gun.

After Jones was placed in the back seat of the Saturn, the

defendant drove the vehicle to the parking lot of a grocery

store in Bloomfield, Connecticut. The defendant left Jones in

the Saturn, and was driven back to his workplace in another

vehicle.

The defendant returned to work around 12:30 P.M. He told

his coworkers that he had made a profit on the deal, and offered

to buy them all lunch. In addition, he gave ten dollars each to

his supervisor and to another coworker. At one point, he fanned

out approximately $4,000 to $5,000, mostly in one hundred dollar

bills. The following evening, Jones's body was found lying

across the back seat of the Saturn in the grocery store parking

lot. At trial, a medical examiner testified that the cause of

his death was ligature strangulation.

The investigation of Jones's death was undertaken primarily

by officers of the Bloomfield, Connecticut, police department

over a two-week period in early 2010. While searching the

Saturn pursuant to a warrant, police found the fingertip from a
 4

latex glove on the floor beneath the back seat. Jones's and the

defendant's deoxyribonucleic acid (DNA) profiles were both

determined to be contributors to a DNA profile found on the

glove fingertip, and to another DNA profile found on one of the

headrests in the vehicle.2 The defendant routinely wore latex

gloves of the same type as part of his work at the tomato

processing plant.

Officers of the Bloomfield police department first

interviewed the defendant at his workplace on January 25, 2010.

Unbeknownst to the defendant, one of the interviewing officers

was carrying a pen recorder that audiotaped their conversation,

as permitted under Connecticut law. The defendant told police

that Jones had arranged to meet with him on January 22, 2010,

but did not show up. He provided the police with a written,

signed statement to that effect.

Video footage from the tomato processing plant, however,

showed that the defendant was picked up from work in a white

SUV, and dropped off again by a different vehicle around 12:30

2
The expected frequency of individuals who could be a
contributor to the deoxyribonucleic acid (DNA) profile on the
latex glove fingertip was approximately 1 in 1.2 million in the
African-American population, 1 in 2.6 million in the Caucasian
population, and 1 in 4.4 million in the Hispanic population.
The expected frequency of individuals who could be a contributor
to the DNA profile on the headrest was approximately 1 in 1,800
in the African-American population, 1 in 2,500 in the Caucasian
population, and 1 in 4,400 in the Hispanic population. Jones
was apparently African-American, as is the defendant.
 5

P.M on the day in question. In addition, cellular site location

information (CSLI) for Combs's and the defendant's cellular

telephones supported an inference that, during that time period,

the defendant had traveled from his workplace to Springfield to

meet Combs, and that the pair had traveled back to the

defendant's workplace via Bloomfield.

On February 2, 2010, police confronted the defendant with

this evidence during a second interview at the Bloomfield police

station, which also was recorded without his knowledge by the

same means. As it became clear to the defendant that what he

was saying conflicted with evidence police already had obtained,

he changed his story several times. Eventually, he explained

that he had driven with Jones from his workplace to visit Combs

in Springfield, on the understanding that Jones would be robbed.

He described the use of the stun gun and his role as a lookout,

and stated that he had driven Jones to the grocery store parking

lot. He provided police with a written, signed statement

summarizing that version of events as well.3 The defendant was

not arrested at that time.

3
Approximately one week into their investigation,
Bloomfield police officers considered searching the house on
Florida Street in Springfield. They stopped pursuing this lead,
however, after a Hampden County assistant district attorney
informed them that he considered an application for a search
warrant unlikely to succeed in Massachusetts because the
information was "stale."
 6

For reasons that are not clear from the record, the

investigation then stalled until February, 2011, when a trooper

of the Massachusetts State police was assigned to the case. The

trooper interviewed several potential witnesses and obtained

buccal swabs from the defendant and others that were used for

additional DNA testing. In September, 2011, the Hampden County

district attorney sought indictments against the defendant, and

he was arraigned in Massachusetts on October 4, 2011.

2. Procedural posture. On September 26, 2011, a grand

jury returned four indictments, charging the defendant with

murder in the first degree, G. L. c. 265, § 1; kidnapping, G. L.

c. 265, § 26; armed robbery, G. L. c. 265, § 17; and assault and

battery by means of a dangerous weapon, G. L. c. 265, § 15A (b).4

The Commonwealth proceeded on a joint venture theory of

liability, with Combs as a joint venturer.5 Prior to trial, a

nolle prosequi was entered with respect to the kidnapping

charge. The defendant filed a motion to dismiss the remaining

charges on speedy trial grounds pursuant to Mass R. Crim. P. 36,

as amended, 422 Mass. 1503 (1996). That motion was denied, and

a petit jury was convened in the Superior Court.

4
The bill of particulars stated that Jones was strangled to
death by means of a ligature. The indictments for armed robbery
and for assault and battery by means of a dangerous weapon both
stated that the dangerous weapon used was a stun gun.
5
Combs was tried separately.
 7

At the close of the Commonwealth's case, the defendant

filed a motion for a required finding of not guilty, which was

denied. The defendant's theory of the case was based on the

inadequacy of the investigation and on the insufficiency of the

evidence; he did not introduce any evidence.

The defendant was convicted on all charges. His conviction

of murder in the first degree was based on two theories:

felony-murder based on the predicate felony of armed robbery,

and extreme atrocity or cruelty. Immediately after the verdict,

the defendant filed a motion for a required finding of not

guilty, pursuant to Mass. R. Crim. P. 25, as amended, 420 Mass.

1502 (1995), which also was denied. This appeal followed.

3. Discussion. The defendant argues that the denials of

his motions for required findings and his motion to dismiss on

speedy trial grounds were error. He also argues that the judge

erred in admitting certain evidence: the defendant's recorded

statements to police and transcripts of those statements; the

testimony of a substitute medical examiner; cellular telephone

records; and DNA evidence taken from the latex glove fingertip.

In addition, he seeks relief pursuant to G. L. c. 278, § 33E.

These issues are addressed in turn below.

a. Sufficiency of the evidence. The defendant contends

that there was insufficient evidence to convict him as a joint

venturer with respect to any of the indictments. In reviewing
 8

the denial of a motion for a required finding, we consider

"whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt"

(emphasis in original). Commonwealth v. James, 424 Mass. 770,

784 (1997), quoting Commonwealth v. Latimore, 378 Mass. 671, 677

(1979). "[T]he evidence and the inferences permitted to be

drawn therefrom must be 'of sufficient force to bring minds of

ordinary intelligence and sagacity to the persuasion of [guilt]

beyond a reasonable doubt.'" Commonwealth v. Semedo, 456 Mass.

1, 8 (2010), quoting Commonwealth v. Latimore, supra.

Because the defendant was convicted as a joint venturer, to

affirm the denial of the motion for a required finding we must

conclude that the evidence was "sufficient to permit a rational

juror to conclude beyond a reasonable doubt that the defendant

knowingly participated in the commission of the crime[s]

charged, with the intent required to commit the crime[s]."

Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009).

i. Felony-murder. The defendant contends that the

evidence was insufficient to prove that he was a joint venturer

in an armed robbery that resulted in Jones's death.6 To find the

defendant guilty of murder in the first degree on a theory of

6
See Commonwealth v. Rodriquez, 454 Mass. 215, 216 n.3
(2009) (noting that armed robbery can be underlying felony for
felony-murder).
 9

felony-murder with armed robbery as the predicate felony, a

rational juror must have been able to find beyond a reasonable

doubt that the defendant was a joint venturer in an armed

robbery and that Jones's death occurred "in the commission or

attempted commission of" that robbery. See G. L. c. 265, § 1;

Zanetti, supra at 468.

To find the defendant guilty of the underlying felony of

armed robbery, proof was required that at least one of the

alleged coventurers was armed with a dangerous weapon; either

applied actual force or violence to Jones's body, or by words or

gestures put him in fear; took Jones's money or property; and

did so with the intent (or sharing the intent) to steal it. See

Commonwealth v. Benitez, 464 Mass. 686, 689-690 (2013), citing

Commonwealth v. Rogers, 459 Mass. 249, 252 n.4, cert. denied,

132 S. Ct. 813 (2011). In the absence of proof that the

defendant himself was armed with a dangerous weapon, proof that

the defendant knew that Combs was so armed would satisfy the

first element of armed robbery. See Benitez, supra at 689 n.4,

citing Commonwealth v. Fickett, 403 Mass. 194, 196–197 (1988).

In the defendant's view, there was no evidence that Jones was

killed in the commission of a robbery, that the defendant knew
 10

that Combs would use a stun gun during the robbery,7 or that

anything was taken from Jones.

We disagree. The defendant told police that he knew Combs

would rob Jones, that he saw Combs repeatedly assault Jones with

a stun gun, and that he drove an injured Jones to Bloomfield,

Connecticut. In addition, a witness testified that on the day

Jones was killed he had observed Combs and another African-

American man at the house on Florida Street in Springfield,

excitedly looking at something in the back seat of the Saturn.

This evidence would have allowed a rational juror to conclude

that Jones was killed in the commission of an armed robbery.

Because Jones knew the defendant, an inference reasonably could

be drawn that the defendant had an incentive to ensure that

Jones would not retaliate after being robbed. Although the

defendant claimed that Jones was still alive during the drive to

Bloomfield, he repeatedly changed his story during his

interviews with police. It would have been reasonable to infer

that an incapacitated Jones was killed in Springfield in the

7
The defendant also argues on this basis that there was
insufficient evidence for the jury to conclude beyond a
reasonable doubt that he was a joint venturer in an assault and
battery by means of a dangerous weapon against Jones. That
argument is unavailing for the same reasons discussed below.
 11

course of the robbery, during or shortly after Combs's sustained

assault with the stun gun.8

Furthermore, there was sufficient evidence that the

defendant knew Combs was armed with the stun gun. Cellular

telephone records indicated that the defendant had been in

contact with Combs on the day before and at relevant times on

the day of the robbery, suggesting that he had played a

significant role in planning to rob Jones. The defendant knew

that Jones was a large man and that Jones intended to take part

in a drug deal. A rational jury therefore reasonably could

infer that the defendant and Combs planned to use a weapon to

overpower Jones when he arrived in Springfield. See

Commonwealth v. Housen, 458 Mass. 702, 708 (2011) (evidence

sufficient to support inference that defendant knew codefendant

was armed where victim was drug dealer unlikely to submit to

robbery without show of superior force). Even if the defendant

had been unaware in advance that Combs would be armed, however,

he told police that he saw Combs using the stun gun on Jones

before he drove Jones to Bloomfield. The defendant's knowledge

of the use of the weapon and continued participation in the

robbery thereafter were sufficient to implicate him as a joint

venturer. Compare Commonwealth v. Norris, 462 Mass. 131, 140

8
As discussed below, it also would have been reasonable to
infer that a ligature ultimately was used to cause Jones's
death.
 12

(2012) (evidence sufficient to conclude that defendant was joint

venturer in armed robbery where defendant continued to

participate in robbery after learning codefendant was armed).

Although defense counsel emphasizes that money Jones

previously had hidden in his home was not taken during the

alleged robbery, the defendant returned to work on January 22,

2010, with what appeared to be a windfall profit. The money he

showed off to his coworkers reasonably could be inferred to have

been taken from Jones, because the defendant told police that he

had lured Jones to Springfield with the promise that he could

purchase drugs there.

ii. Extreme atrocity or cruelty. The defendant also

argues that the evidence was insufficient to convict him as a

joint venturer of murder in the first degree on a theory of

extreme atrocity or cruelty because no evidence showed that he

participated in the strangulation of Jones by ligature, or that

Jones's murder was extremely atrocious or cruel.

"The critical question with respect to whether the evidence

was sufficient to warrant a finding that a defendant is guilty

of murder in the first degree as a joint venturer on the

theor[y] of . . . extreme atrocity or cruelty is whether the

defendant was present at the scene of the murder, with the

knowledge that another intends to commit a crime or with intent

to commit the crime and by agreement was willing and available
 13

to assist if necessary." Commonwealth v. Deane, 458 Mass. 43,

50 (2010), citing Commonwealth v. Phillips, 452 Mass. 617, 633

(2008). The Commonwealth need not prove, however, "exactly how

a joint venturer participated in the murder[], or which of the

two did the actual killing." Deane, supra at 50-51.

Murder on a theory of extreme atrocity or cruelty only

requires a mens rea of malice. See Commonwealth v. Garcia, 470

Mass. 24, 32 (2014). "Malice is defined in these circumstances

as an intent to cause death, to cause grievous bodily harm, or

to do an act which, in the circumstances known to the defendant,

a reasonable person would have known created a plain and strong

likelihood that death would follow." Id., quoting Commonwealth

v. Szlachta, 463 Mass. 37, 45-46 (2012). A defendant does not

have to have known that his or her joint venturer possessed the

murder weapon. See Commonwealth v. Pov Hour, 446 Mass. 35, 42

(2006). Furthermore, he or she need not have known or intended

that the murder be extremely atrocious or cruel. See Garcia,

supra.

Viewing the evidence in the light most favorable to the

Commonwealth, a rational juror reasonably could have concluded

that the defendant was present at the scene of Jones's murder.

The defendant told police he had escorted Jones into the house

on Florida Street to introduce Jones to Combs. Other evidence

indicated that that the defendant had been in physical contact
 14

with Jones in the Saturn: both the defendant's and Jones's DNA

profiles were present on the latex glove fingertip that was

found on the floor in the back seat of the vehicle. In

addition, when Jones was found lying on his stomach across the

back seat of the vehicle, his feet were pressed up against the

door. Given Jones's size, it would be reasonable to infer that

he had been put into the vehicle forcibly with the defendant's

help, and that he was at least incapacitated by the stun gun if

not already strangled when he was put there.

While "[t]he line that separates mere knowledge of unlawful

conduct and participation in it, is 'often vague and

uncertain,'" Norris, 462 Mass. at 140, quoting Commonwealth v.

Longo, 402 Mass. 482, 487 (1988), the evidence also allowed for

the reasonable conclusion that the defendant either knew that

Combs intended to kill Jones or himself intended to cause Jones

death or grievous bodily harm. Jones knew only the defendant,

not Combs; the defendant thus had a greater incentive than Combs

to ensure that Jones would not retaliate. Furthermore, it is

evident that the defendant wore latex gloves while in contact

with Jones, inferably to avoid leaving fingerprints. In

addition, the defendant's changing story to police and others

regarding what happened on the day of Jones's death allowed a

reasonable inference that the defendant was conscious of his

guilt.
 15

There was also sufficient evidence from which a jury could

have concluded that Jones's death was extremely atrocious or

cruel. To determine that a homicide was committed with extreme

atrocity or cruelty, a jury must consider several factors: a

defendant's or joint venturer's "indifference to or taking

pleasure in the victim's suffering, consciousness and degree of

suffering of the victim, extent of physical injuries, number of

blows, manner and force with which delivered, instrument

employed, and disproportion between the means needed to cause

death and those employed." Commonwealth v. Cunneen, 389 Mass.

216, 227 (1983). While a jury must find at least one of the

Cunneen factors to support a verdict of extreme atrocity or

cruelty, see Commonwealth v. Blackwell, 422 Mass. 294, 299

(1996), they need not be unanimous with respect to which factor

or factors they determine to be applicable. See Commonwealth v.

Morganti, 455 Mass. 388, 407 (2009), S.C., 467 Mass. 96 (2014).

The jury heard testimony that Jones was assaulted

repeatedly with a stun gun and eventually strangled to death.

They also heard that it would have taken eight to ten seconds of

sustained strangulation to cause Jones to lose consciousness,

and several more minutes for strangulation to cause death, and

that his injuries were consistent with terminal seizure

activity, in which a person being strangled twitches and bites

his lips as he dies. See Commonwealth v. Linton, 456 Mass. 534,
 16

546-547 (2010) (reasonable jury could find victim's homicide by

means of manual strangulation was extremely atrocious or cruel).

This evidence would have allowed the jury reasonably to apply

several of the Cunneen factors.9

b. Speedy trial. The defendant argues that his motion to

dismiss on speedy trial grounds was incorrectly denied, because

his trial was delayed repeatedly for over one year. Pursuant to

Mass R. Crim. P. 36 (b), as amended, 422 Mass. 1503 (1996), a

defendant is entitled to dismissal if a trial does not take

place within twelve months of the defendant's arraignment.10

However, a period of delay does not count toward the twelve-

month maximum if a defendant acquiesced in or benefited from it.

See Commonwealth v. Roman, 470 Mass. 85, 92-93 (2014).

We consider the defendant's motion to dismiss on speedy

trial grounds de novo. See Commonwealth v. Rodgers, 448 Mass.

538, 540 (2007). "For purposes of a rule 36 calculation of

excludable periods, the docket and the clerk's log are prima

facie evidence of the facts recorded therein." Roman, supra

at 93. Because 518 days passed between October 4, 2011, the

9
Furthermore, the defendant told police that, when he left
Jones in the parking lot, he was still making "little noises."
If the jury believed this statement, they reasonably could have
inferred from it that the defendant was indifferent to Jones's
suffering.
10
See Mass. R. Crim. P. 2 (b) (15), as amended, 397 Mass.
1226 (1986) (defining "return day" as date of arraignment).
 17

date the defendant was arraigned, and March 5, 2013, the date he

filed his motion to dismiss, the defendant has established a

prima facie case that his speedy trial right was violated.11 The

Commonwealth therefore has the burden of showing that at least

152 days of the delay should not count toward the twelve-month

maximum.12 See id. at 92 (shifting burden to Commonwealth to

justify delay after defendant establishes prima facie case).

That burden has been met in this case. "When a defendant

has agreed to a continuance, or has not entered an objection to

delay, he will be held to have acquiesced in the delay." Barry

v. Commonwealth, 390 Mass. 285, 298 (1983). See Roman, supra

at 93. Here, it is evident from the docket and the clerk's log

that the defendant and the Commonwealth jointly requested to

continue the pretrial hearing date from March 14, 2012, to

April 23, 2012 -- a delay of forty-one days. They also agreed

to extend the deadline for filing pretrial motions from April

30, 2012, to August 13, 2012 -- a delay of an additional 106

days. Moreover, they jointly requested to continue the trial

date from December 3, 2012, the date they had jointly proposed

in the pretrial conference report, to April 1, 2013. The

11
See Mass R. Crim. P. 36 (b) (3), as amended, 422 Mass.
1503 (1996) ("In computing any time limit other than an excluded
period, the day of the act or event which causes a designated
period of time to begin to run shall not be included").
12
The year 2012 was a leap year.
 18

defendant thus had acquiesced to an additional period of delay

of at least 120 days when, on March 5, 2013, he filed his motion

to dismiss on speedy trial grounds. Other delays may also have

been permitted, but we need not address them here. The delays

described above already substantially exceed the number of days

the Commonwealth must justify.

c. Defendant's statements to police. As noted, police

audiorecorded both of their interviews of the defendant without

his knowledge, using a pen recorder.13 After the defendant filed

an unsuccessful motion in limine to exclude the interviews from

evidence, the contents of the interviews were admitted in

several ways at trial, over repeated objection. The officer who

recorded the interviews read excerpts from the transcripts of

those recordings to the jury; she also read the several written

statements that the defendant signed in her presence.14 The

transcript excerpts and written statements also were admitted in

evidence separately. Furthermore, the unredacted recordings of

13
The record does not indicate whether the defendant was
informed of the Miranda rights prior to either interview. The
defendant did not, however, move to suppress the statements on
Miranda grounds. He requested and received a humane practice
instruction at trial.
14
The officer also testified regarding her perception of
the defendant's demeanor during the interviews, including her
belief that the defendant was "relaxed" and not under the
influence of drugs or alcohol.
 19

the interviews were marked as exhibits, and redacted recordings

were available to the jury upon request during deliberations.

The defendant argues that the contents of his oral

statements to police should not have been admitted,15 and

contests the manner in which they were admitted. For the

reasons that follow, we conclude that the judge did not abuse

his discretion either in the admission of the statements

themselves or in the ways they were admitted.

i. Admission of statements. The recordings of the

defendant's statements to police were not complete -- the

officer who was carrying the recording device left the interview

room at least once during the second interview. Accordingly,

the defendant contends that his statements should not have been

admitted because the recordings were incomplete, and because

they were recorded without his knowledge or consent. Reviewing

the admission of the defendant's statements for abuse of

discretion, however, we discern no error.16 See Commonwealth v.

Valentin, 420 Mass. 263, 270 (1995), S.C., 470 Mass. 186 (2014).

15
Although the defendant preserved objections to the
admission of his written, signed statements to police, he does
not raise these arguments on appeal. We discern no error in
their admission.
16
In his order denying the motion in limine, the trial
judge erroneously stated that the audiorecordings were complete
recordings of the defendant's interviews with police.
Nonetheless, we conclude that the statements were properly
admitted. See Commonwealth v. Bennett, 414 Mass. 269, 271
 20

Although the lack of a complete recording of a defendant's

statements to police at times may be problematic, completeness

is not a prerequisite for admission. See Commonwealth v.

DiGiambattista, 442 Mass. 423, 449 (2004). Instead, "a

defendant whose interrogation has not been reliably preserved by

means of a complete electronic recording should be entitled, on

request, to a cautionary instruction concerning the use of such

evidence." Id. at 447. Such an instruction was given in this

case: the jury were told to consider the defendant's alleged

statements with "great care and caution." Furthermore, the fact

that the recordings were made without the defendant's knowledge

was not a basis to exclude them from the evidence in this case.

Although secret recordings sometimes may be misleading, there is

no indication that the defendant would have acted differently

had he been aware that he was being recorded. To the contrary,

he signed several written statements that memorialized the

versions of what had happened that he related to police.

The defendant also argues, for the first time on appeal,

that the recordings were made in violation of G. L. c. 272,

§ 99, the Massachusetts wiretap statute. General Laws c. 272,

§ 99, provides a suppression remedy in Massachusetts for the

(1993), citing Aetna Cas. & Sur. Co. v. Continental Cas. Co.,
413 Mass. 730, 734 (1992) ("We decline . . . to rest our
conclusion on the ground on which the trial judge relied but
reach the same result for a different reason").
 21

unlawful interception of communications by police.

Communications intercepted by Federal law enforcement officers

are explicitly exempted from that remedy if the officers are

"acting pursuant to authority of the laws of the United States

and within the scope of their authority." G. L. c. 272,

§ 99 D 1 c. The defendant argues that, because the statute does

not contain a similarly explicit exemption for law enforcement

officers of another State acting pursuant to that State's laws,

the recordings at issue here should have been suppressed.

Nonetheless, "[t]he legality of the procedures employed by

the police forces of other States operating in their own

jurisdiction is governed by the law of that jurisdiction."

Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). The

recordings at issue here were made by Connecticut police

officers in Connecticut more than one year before Massachusetts

law enforcement officers became involved in the investigation.

Nothing in the record suggests that the recordings were made

with the knowledge or at the behest of the Commonwealth.

Because the police are permitted to record interviews secretly

under Connecticut law, no suppression remedy is available. See

Conn. Gen. Stat. § 53a-187(b). See also State v. DelVecchio,

191 Conn. 412, 430-432 (1983) (no suppression remedy under

Connecticut Constitution for secretly recorded statements).
 22

ii. Manner of admission. The defendant argues that the

interview transcripts were presented improperly to the jury "in

lieu" of the recordings rather than as an interpretive

supplement to them. Relatedly, he argues that it was error to

admit redacted versions of the recordings after the close of

evidence, rather than through a witness, and before he had had a

chance to review them.

Properly authenticated transcripts of recordings, however,

may be "offer[ed] . . . in evidence or for identification as an

aid to the finder of fact." Commonwealth v. Portillo, 462 Mass.

324, 327 (2012). Here, the transcripts that were read in

evidence had been prepared by an official court reporter at the

defendant's request.17 In addition, there was no error in the

eventual admission of the redacted recordings. The unredacted

recordings previously had been authenticated and marked as an

exhibit; it is evident that the redacted recordings were

admitted simply to reflect redactions to the transcript that had

been agreed to before trial. See Commonwealth v. Rogers, 459

Mass. 249, 268, cert. denied, 132 S. Ct. 813 (2011) (admission

of cumulative evidence "fall[s] within the judge's discretion").

In any event, the record does not indicate that the jury ever

asked to listen to the recordings, and the defendant does not

17
The Commonwealth also had a transcription of the
recordings prepared by a court reporter, but agreed to use the
defendant's version.
 23

suggest otherwise. Any error in their admission therefore would

have been harmless.

d. Substitute medical examiner. Before trial, the

Connecticut medical examiner who conducted Jones's autopsy and

prepared the autopsy report, Dr. Frank Evangelista, was indicted

in Massachusetts for perjury and obstruction of justice in an

unrelated matter.18 Although Evangelista was available to

testify, the Commonwealth opted instead to present testimony

from a substitute medical examiner, Dr. Joann Richmond, a

retired forensic pathologist, regarding the cause of Jones's

death. The defendant repeatedly objected to the admission of

this testimony.19 Nonetheless, Richmond ultimately was allowed

to testify regarding the nature of Jones's injuries, and to

offer her opinion concerning the cause of his death.

Evangelista's autopsy report was not offered or admitted in

evidence.

On appeal, the defendant argues that the admission of

testimony by a substitute medical examiner, despite the

18
The district attorney for the Plymouth district brought
those indictments.
19
The defendant filed a motion in limine and a supplemental
motion in opposition to the Commonwealth's motion to permit
testimony by a substitute medical examiner. In addition, the
defendant objected to the admission of the testimony during
pretrial hearings, and moved to strike the testimony. The
defendant also objected to the substitute examiner's opinion
testimony regarding the cause of the victim's death.
 24

availability of the original examiner, violated his

constitutional confrontation rights. In addition, he argues

that the substitute testimony should not have been admitted

because it was not scientifically reliable. He also contends

that the jury should have been given a missing witness

instruction to account for the absence of Evangelista's

testimony.

i. Right of confrontation. The Sixth Amendment to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights both provide criminal defendants with the

right to be confronted with the witnesses against them. Neither

the fact that the original examiner was available to testify nor

the contents of the substitute examiner's testimony, however,

violated that right.

The defendant argues that the Commonwealth's use of a

substitute medical examiner in this case impermissibly prevented

him from calling Evangelista's credibility into question on

cross-examination. Nonetheless, "[w]e have never stated that a

substitute medical examiner may not testify to his or her own

opinions unless the medical examiner who performed the autopsy

is shown to be unavailable, nor is there any rule of criminal

procedure setting forth such a requirement." Commonwealth v.

Reavis, 465 Mass. 875, 881-882 (2013). Because the Commonwealth

did not offer testimonial out-of-court statements by Evangelista
 25

in this case, the defendant had no constitutional right to

confront those statements.

A substitute medical examiner may not testify to facts in

an autopsy report if that report has not been admitted in

evidence. See Commonwealth v. Durand, 457 Mass. 574, 584-585

(2010), citing Commonwealth v. Nardi, 452 Mass. 379, 391 (2008).

A substitute examiner may, however, "offer an opinion on the

cause of death, based on his [or her] 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."

Reavis, supra at 883, citing Commonwealth v. Emeny, 463 Mass.

138, 145 (2012). That is what happened here.

As noted, Evangelista's autopsy report as to Jones was not

offered against the defendant, and Richmond did not testify to

facts it contained. Rather, she based her testimony on her

independent understanding as a pathologist of both the report

and photographs of Jones's injuries from the crime scene and

autopsy. For example, she testified that the photographs showed

petechial hemorrhaging in Jones's eyes, as well as bleeding and

bruising injuries that were consistent with terminal seizure-

like activity. In addition, she testified that, in her opinion,

Jones died of "ligature strangulation." Furthermore, the
 26

defendant had an opportunity to cross-examine Richmond, and

questioned her vigorously concerning the bases of her opinions.20

See Commonwealth v. Greineder, 464 Mass. 580, 594-595, cert.

denied, 134 S. Ct. 166 (2013) (noting that confrontation right

protects opportunity for meaningful cross-examination). No more

was constitutionally required.

ii. Scientific reliability of substitute testimony. The

defendant argues that Richmond's testimony was scientifically

unreliable because she did not perform Jones's autopsy herself.

The trial judge, however, declined to exclude Richmond's

testimony on this ground, and the defendant's objection at trial

similarly was overruled. In light of our conclusion above that

there was no constitutional error, we review those

determinations for abuse of discretion. See Commonwealth v.

Matthews, 450 Mass. 858, 871 (2008), citing Canavan's Case, 432

Mass. 304, 311 (2000).

The testimony of a scientific expert witness is not

admissible if the reasoning or methodology underlying that

testimony is not scientifically valid or cannot be applied

properly to the facts at issue in a given case. See

20
On cross-examination, the substitute medical examiner
acknowledged the deficiencies of substitute testimony: she
noted that as the primary examiner she would have personally
examined the victim's body, and not simply relied on pictures
from the autopsy, and would also have had the ability to make
independent measurements and compare the width of a shoelace
found at the crime scene to the marks on the defendant's neck.
 27

Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994), citing

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-593

(1993). See also Commonwealth v. Barbosa, 457 Mass. 773, 783

(2010), cert. denied, 563 U.S. 990 (2011) (listing foundational

requirements for admission of expert testimony in criminal

case). A judge need not conduct an extensive inquiry into the

validity of an expert's testimony if, on the other hand, "the

expert's methodology has previously been accepted as reliable in

the relevant field." Commonwealth v. Sliech-Brodeur, 457 Mass.

300, 327 (2010), citing Commonwealth v. Shanley, 455 Mass. 752,

763 n.15 (2010).

The witness's status as a substitute examiner was not a

sufficient basis to exclude her testimony. Richmond may have

been less well positioned to assess the cause of Jones's death

than the medical examiner who conducted his autopsy, but she

applied accepted methods and understandings of forensic medicine

in her independent assessment of the photographs of Jones's

injuries at trial. The judge therefore did not abuse his

discretion in determining that Richmond's testimony would be a

reliable scientific opinion.

iii. Missing witness instruction. A missing witness

instruction permits the jury, "if they think reasonable in the

circumstances, [to] infer that that person, had he [or she] been

called, would have given testimony unfavorable to the party."
 28

Commonwealth v. Saletino, 449 Mass. 657, 668 (2007), quoting

Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991). Such

an instruction may be appropriate when a party "'has knowledge

of a person who can be located and brought forward, who is

friendly to, or at least not hostilely disposed toward, the

party, and who can be expected to give testimony of distinct

importance to the case,' and the party, without explanation,

fails to call the person as a witness." Saletino, supra at 667,

quoting Anderson, supra at 280 n.1. The instruction should be

provided "only in clear cases, and with caution." Saletino,

supra at 668, quoting Commonwealth v. Figueroa, 413 Mass. 193,

199 (1992), S.C., 422 Mass. 72 (1996). If a judge determines

that a missing witness instruction is not appropriate, counsel

are not permitted to argue the issue during closing. Saletino,

supra at 670. That determination is reviewed for abuse of

discretion. See id. at 667. See also L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

The judge denied the defendant's request for a "missing

witness" instruction with respect to Evangelista, and prohibited

him from arguing the issue to the jury. The judge determined

that the Commonwealth had a legitimate tactical reason for not

calling Evangelista -- it wished to avoid relying on a witness

who was under indictment by another district attorney's office.
 29

That determination was not "outside the range of reasonable

alternatives." See L.L., supra.

e. Admission of cellular telephone records. At trial,

CSLI for Combs's and the defendant's cellular telephones was

admitted in evidence. Call records for Combs's, Jones's, and

the defendant's telephone numbers were also admitted. The

defendant argues for the first time on appeal that the call

records and CSLI were not obtained pursuant to search warrants,

in violation of his rights under the Fourth Amendment to the

United States Constitution and art. 14 of the Massachusetts

Declaration of Rights, and in violation of the Federal stored

communications act, 18 U.S.C. § 2703 (2012). He contends that

his trial counsel was ineffective for failing to object to their

admission on these bases.21 In addition, he challenges, as he

did at trial, the qualifications of an expert witness who

testified regarding the call records.

We discern no error in the admission of the CSLI and call

records. Contrary to the defendant's contention, the record

shows the call records were obtained pursuant to search warrants

in Connecticut. Thus, there was no violation of the relevant

21
The defendant's trial counsel objected to the admission
of the cellular site location information (CSLI) data only on
the ground that the version of the data she had been sent before
trial was formatted slightly differently from the version that
was admitted.
 30

constitutional and statutory requirements, and his trial counsel

was not ineffective for failing to raise these arguments.

Furthermore, the judge did not abuse his discretion in

allowing a sales manager at the defendant's cellular telephone

service provider to testify regarding the contents of call

records. See Commonwealth v. Frangipane, 433 Mass. 527, 533,

537 (2001) (reviewing preserved objection to admission of expert

testimony for abuse of discretion). Although an expert witness

may not testify to matters beyond his or her area of expertise

or competence, id. at 533, the sales manager had been employed

by the service provider for fifteen years and had been trained

in reviewing customers' bills to interpret the type of call

record information about which he testified. We discern no

abuse of discretion in allowing this testimony.22

f. Admission of DNA evidence. The swab used for

extracting raw DNA from the latex glove fingertip found in

Jones's vehicle was consumed in its entirety before the police

arrested the defendant. Although the defendant asked for DNA

material for retesting during discovery, he was told repeatedly

that no material existed. On April 24, 2013, however, days

22
The defendant's contention that the particular call
records and CSLI introduced in this case are not business
records is also baseless. See Smith v. Maryland, 442 U.S. 735,
744-745 (1979) (treating telephone call records as business
records); Commonwealth v. Augustine, 467 Mass. 230, 232 (2014)
(treating CSLI as business record).
 31

before the trial was scheduled to begin, he learned for the

first time that DNA material extracted from the swab remained

available for further testing. Although the judge indicated a

willingness to continue the trial, the defendant neither

performed such testing before the scheduled trial date nor

sought a continuance to do so. Instead, he sought

unsuccessfully to exclude the results of the testing that had

already been done on the swab.

The defendant argues that the Commonwealth violated its

duty to preserve exculpatory evidence because he was unable to

test raw DNA material from the swab independently, and because a

defense expert was unable to observe the extraction process to

ensure that proper protocols were followed. A prosecutor's

preservation duty, however, only "extend[s] to material and

information in the possession or control of members of his [or

her] staff and of any others who have participated in the

investigation or evaluation of the case and who either regularly

report or with reference to the particular case have reported to

his [or her] office." Commonwealth v. Daye, 411 Mass. 719, 734

(1992), quoting Commonwealth v. St. Germain, 381 Mass. 256, 261

n.8 (1980). Here, the prosecutor had no control over the
 32

testing of the swab at the time the raw DNA was consumed.23

Thus, the preservation duty did not apply.

A defendant "'may be independently entitled to a remedy' of

exclusion if the loss or destruction of evidence was due to the

bad faith or reckless acts of the Commonwealth." Commonwealth

v. Sanford, 460 Mass. 441, 447 (2011), citing Commonwealth v.

Williams, 455 Mass. 706, 718 (2010). Such a remedy is not,

however, available in this case. Although the defendant

received late notice of the availability of extracted DNA

material for testing, the exhaustion of the raw DNA material on

the swab was not due to that delay. Nor was the defendant

prevented from testing the extracted DNA material that remained

available.

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

examined the record carefully pursuant to our duty under G.L.

23
The swab used for extracting DNA from the latex glove
fingertip found in Jones's vehicle was first tested by the DNA
unit of the Connecticut forensic laboratory on June 21, 2010.
However, a scientist at the laboratory eventually determined
that the "typing kit" initially used on the swab may have been
"substandard or potentially compromised," requiring retesting.
Because retesting would extract all remaining raw DNA material
on the swab, the scientist contacted the Bloomfield,
Connecticut, police department to determine whether a suspect
had been arrested who should be given an opportunity to observe
the testing. She was told that there was a person of interest
in the case, but that no arrests had been made. On January 20,
2011, she retested the swab. As noted above, Massachusetts
State police did not assume an active role in the investigation
until February, 2011, and the defendant was not arraigned in
Massachusetts until October, 2011.
 33

c. 278, § 33E, and discern no basis on which to grant the

defendant relief.24

Judgments affirmed.

24
The defendant asks that we vacate his conviction of armed
robbery because it is a lesser included offense of, and
therefore merges with, the murder conviction. This request does
not account for the defendant's conviction of murder on the
theory of extreme atrocity or cruelty. "[W]here, as here, the
conviction of murder is based on a theory in addition to the
theory of felony-murder, the conviction of the underlying felony
stands." Commonwealth v. Brum, 441 Mass. 199, 200 n.1 (2004),
citing Commonwealth v. Pennellatore, 392 Mass. 382, 390 (1984).