October 7, 2004. - January 11, 2005.
Indictments found and returned in the Superior
Court Department, six on May 20, 1998, and two on April 13, 1999.
The cases were tried before Daniel A. Ford, J.
Kenneth J. King for the defendant.
Marcia B. Julian, Assistant District Attorney,
for the Commonwealth.
SPINA, J. The defendant was convicted of the
aggravated rape and murder of four women in Springfield between
November 1, 1997, and March 11, 1998. The jury returned verdicts
under all three theories of murder in the first degree in each case.
On appeal, the defendant asserts error in certain pretrial rulings,
including (1) the denial of his motions to suppress evidence where
(a) his consent to the taking of a blood sample allegedly
was obtained by trickery, and therefore not
voluntary, (b) the scope of the search of his blood exceeded the
scope of his consent, and (c) the second of two statements he gave
police allegedly was obtained in violation of his assertion of the
right to counsel; (2) change of trial venue to a community that is
not demographically representative of the community where the crimes
occurred; (3) joinder of four cases that he contends are not related
within the meaning of Mass. R. Crim. P. 9, 378 Mass. 859 (1979); and
(4) rulings that deoxyribonucleic acid (DNA) evidence taken from
mixed DNA samples was sufficiently reliable to be admitted in
evidence, and that the database on which Cellmark Diagnostics based
its frequency calculations was adequate.
The defendant also alleges error at trial from
(1) the admission of hearsay testimony to impeach his first
statement to police; (2) the admission of evidence that constituted
improper comment on his right to remain silent; (3) the denial of
his motion to limit the prosecutor's cross-examination of the
defendant to the case on which the defendant intended to offer alibi
testimony; and (4) the prosecutor's closing argument. Finally, the
defendant asks us to grant him a new trial under G. L. c. 278, §
33E. We affirm the convictions and decline to grant relief under §
33E.
1. Facts.
The jury could have found the following facts.
a. Victim no. 1.
The victim put her children to bed at 10 P.M. on
October 31, 1997. Sometime between midnight and 12:30 A.M., the
first-floor tenant at 866 Worthington Street in Springfield, heard a
"scream of pain" followed by a "thud" from the victim's second-floor
apartment. The victim's son discovered her body on the living room
couch after he awoke at 7 A.M. on November 1. Her naked body was
covered by a blanket and a towel had been placed over her head. Her
hands were bound behind her back.
An autopsy revealed that death was caused by
asphyxia due to manual strangulation. The victim's blood tested
positive for metabolites of cocaine and alcohol. Her anus was widely
dilated, consistent with penetration.
The defendant's thumb print was identified on a
broken ashtray found in the living room, and his palm print was
identified on a hair gel container, also in the living room. Fecal
matter was found on a sock and inside the rim of a small vase
recovered from the victim's living room.
The defendant told his brother that he had had
anal intercourse with women he met in the Worthington-Federal
Streets section of Springfield, an area known for prostitutes and
crack cocaine. The defendant's brother had driven him several times
in October and November, 1997, to the neighborhood where the victim
lived.
Several items collected from the scene and all
biological evidence recovered from the first victim's body, as well
as blood samples given by the defendant were sent to Cellmark for
DNA analysis. Cellmark performed two series of polymerase chain
reaction (PCR) tests on DNA samples taken from items submitted in
all four cases. The first series of tests were performed at nine
genetic loci: DQ Alpha, five polymarker (PM) loci, and three (TPOX,
THO1, and CSF) short tandem repeat (STR) loci. In some instances
testing was done at a tenth locus, identified as D1S80. Some of
these tests were witnessed by a defense expert.
A second series of PCR tests was done on some
samples at thirteen core STR loci (including the three STR loci
where testing previously had been done) designated for inclusion in
the national database that contains DNA profiles(1) of convicted
felons, known as the combined DNA index system, or CODIS. See G. L.
c. 22E, § 1 (definitions). A defense expert was present during the
second series of tests. DNA samples from seven other suspects were
examined and all seven were excluded as contributors in each case.
In the case of the first victim, sperm fractions,
the part of sperm that contains DNA, were extracted from sperm cells
found on several items taken from the scene, including a sock, the
victim's shirt, the rim and side of the small vase, a carpet section
and a towel. They were also extracted from sperm cells on an
anorectal swab taken at autopsy.
After the first series of tests on DNA samples
from the sperm fractions, the defendant could not be excluded as the
contributor. A frequency calculation based on tests of the sample
from the anorectal swab indicated that one in 450,000 African-Americans
would be expected to share this DNA profile. Frequency calculations
based on tests of the sample from the victim's shirt and the sock
indicated that one in 8.4 million African-Americans would be
expected to have the same DNA profile.
The samples of DNA from the victim's shirt and
the sock were determined to have come from a single source, male,
and not a mixture of DNA from two or more persons. Frequency
calculations based on the second series of tests performed on the
sperm fractions from the first victim's shirt and the sock indicated
a "match" to the defendant's DNA profile: one in sixty-four
quadrillion (64 x 1015) African-Americans would be expected to have
the same DNA profile as the sperm fraction.
b. Victim no. 2.
The second victim had a drug and alcohol problem
and would prostitute herself to obtain money to purchase drugs. She
frequented a crack house at 65 Maynard Street, Springfield, where
crack cocaine could be obtained for cash, goods, or sex. Sexual
favors were often exchanged on the premises for cocaine. The
defendant was a "regular" at 65 Maynard Street, where he obtained
both drugs and sex.
At approximately 9 A.M. on February 2, 1998, the
victim's partially naked body was discovered in an alley near a post
office on State Street in Springfield, a few blocks away from
Maynard Street. Her arms were extended over her head by her
sweatshirt, which had been pulled up over her head. Fecal matter was
found on a gray sweatshirt and two socks. A ballpoint pen was found
under her body. The pen was a promotional item similar to one the
defendant had obtained at a local auto body shop one week earlier.
An autopsy disclosed that death was caused by
manual strangulation. Cocaine metabolites were present in the
victim's blood. Her anus was dilated, consistent with penetration.
The pathologist concluded that the victim had been dead one to two
days when the autopsy was performed on February 3.
The first series of DNA tests on sperm fractions
extracted from sperm cells found on a sock, a sweatshirt, and an
undershirt taken from or near the victim's body could not exclude
the defendant as the contributor. A frequency calculation based on
the second series of tests on the sperm fractions from the sock and
the undershirt indicated a match to the defendant's DNA profile: one
in sixty-four quadrillion African-Americans would be expected to
have the same DNA profile as that found in the sperm fraction. The
DNA in the samples from the sock and the undershirt were determined
to have come from a single source, male, and not a mixture.
c. Victim no. 3.
She also was a regular at 65 Maynard Street, and
prostituted herself to support her drug habit. She and the defendant
arrived there together between 9 P.M. and 9:30 P.M. on February 10,
1998. The defendant was trying to exchange compact discs for drugs.
They left, but returned sometime between 11 P.M. and 11:30 P.M.,
then left again.
The victim's son discovered her body on the
evening of February 11, 1998, in the bedroom of her apartment at
Lionel Benoit Road, Springfield, a short distance from Maynard
Street. There was no evidence of forced entry. The victim's clothing
had been pushed up around her head. The defendant's palm print was
identified on a ceramic coffee mug on a dresser in the bedroom.
An autopsy revealed evidence of strangulation,
but death was caused by asphyxiation from a sock that was lodged in
the victim's airway. Cocaine metabolites were present in her blood.
Her anus was dilated, consistent with penetration. The pathologist
estimated time of death at between 10 P.M. on February 10, 1998, and
4 A.M. on February 11.
The first series of DNA tests could not exclude
the defendant as a contributor of sperm fractions extracted from
sperm cells on vaginal and anorectal swabs taken at the autopsy, and
on sweatpants, a pillowcase, and a sanitary pad collected in the
bedroom. A frequency calculation indicated that one in 490 African-Americans
would be expected to share the DNA profile of the sperm fractions
from the vaginal swab. The second series of tests produced similar
results, but frequency calculations were not performed because the
samples comprised a mixture of DNA consistent with the profiles of
both the victim and the defendant, and a primary contributor could
not be identified.
d. Victim no. 4.
The fourth victim's teenage daughter filed a
missing person report with the Springfield police on February 19,
1998, after her mother failed to return home the previous night. The
teenager had walked around the apartment complex and discovered her
mother's car, but it was not parked in the customary place. It had
been ransacked, and the keys were on the floor.
At approximately 11 P.M. on February 18, 1998,
the defendant, the victim, and a second woman arrived at the
Springfield home of a third woman, where they all smoked crack
cocaine. Not satisfied, they set out to find more. They tried
unsuccessfully to sell the victim's gold Mickey Mouse earrings. At
one point they drove to Holyoke in the victim's car. After they
returned to Springfield, the victim drove off with the defendant
sitting in the front passenger seat of her car. She was never again
seen alive.
On February 20, 1998, Springfield police began an
investigation of the disappearance of the fourth victim. They
interviewed the two women who were with her on the evening of
February 18, then tried to contact the defendant. On February 27,
the defendant went to the Springfield police station where he
related the events of the evening of February 18 to detectives. In
contrast with the account given earlier by one of the women, the
defendant said he did not drive away with the victim after they
returned from Holyoke, and he said he never sat in the front seat of
her car.
He told detectives that, when they returned from
Holyoke, they all parted ways and he walked to a bar, the Yellow
Jacket, on State Street. There, he had a drink with a man who once
worked with him. The man later drove the defendant to his girl
friend's home. The bartender denied that the defendant had been at
the Yellow Jacket that night, and the former coemployee denied that
they were together that night.
While the defendant was in the police station on
February 27, 1998, his girl friend arrived at the request of police
to answer some questions about the defendant. At one point she was
taken to the same room as the defendant to try to resolve a
discrepancy in the time each said the defendant had arrived at the
girl friend's home on February 19. The defendant tried to convince
his girl friend that he arrived at 12:30 A.M. She said she was not
sure about the time, but she later telephoned police to confirm that
he did not arrive until 6 A.M. A friend of the defendant testified
that the defendant appeared at his home at approximately 1 A.M. on
February 19 asking to borrow fifteen dollars.
Also while the defendant was at the police
station on February 27, 1998, he viewed the victim's car, including
a blood stain in the front passenger seat. Arrangements had been
made for a chemist to examine the car. Detectives asked the
defendant if he would be willing to give palm and fingerprint
samples, as well as a blood sample. He agreed. After his prints were
taken, police drove the defendant to Baystate Medical Center where
he signed a consent form. Four vials of his blood were then drawn.
On March 11, 1998, the fourth victim's naked and
frozen body was found in some bushes adjacent to a building on East
Columbus Avenue in Springfield. Her left hand had been positioned on
her abdomen and her arm was propped up by branches that had been cut.
Autopsy revealed that death was caused by manual strangulation. Time
of death could not be determined because the body was frozen. Her
blood contained metabolites of cocaine. Her anus was dilated,
suggesting penetration.
On March 16, 1998, police went to a pawn shop in
Springfield where they learned that the defendant had pawned the
fourth victim's Mickey Mouse earrings on February 20 for twelve
dollars. He previously had told police on February 27 that, after
the victim dropped him off on their return from Holyoke, he
suggested that she try selling the earrings at 65 Maynard Street.
On April 6, 1998, detectives told the defendant
that the tests done on the blood on the front seat of the victim's
car indicated that it was not his. They also told him that his
attorney had contacted them, and that they were not going to talk to
him about the fourth victim. Accordingly, they did not ask him any
questions about the fourth victim. The defendant, however, asked
about their progress in the investigations of the deaths of the
other women, which had become a pressing public concern. He said he
wished he could help them, but said that he did not know any of the
other victims.
The first series of DNA tests on biological
evidence collected at the autopsy and from the fourth victim's car
could not exclude the defendant as the contributor of sperm
fractions extracted from sperm cells recovered from the armrest and
the front seat of the victim's car, or from a swab of the victim's
buttocks and an anorectal swab taken at autopsy. A frequency
calculation based on the tests indicated that one in every 450,000
African-Americans would be expected to have the same DNA profile as
a sperm fraction from the front seat. That is, 99.9998% of African-Americans
could be excluded as contributors.
The second series of tests produced similar
results. A frequency calculation indicated that one in every 709,000
African-Americans could be expected to have the same DNA profile as
a sperm fraction from the armrest. Greater precision could not be
obtained because the sample was too small to permit full testing at
the thirteen core STR loci; testing was performed at six STR loci.
2. Suppression Issues.
a. Voluntariness of consent to search. The
defendant argues that the motion to suppress evidence derived from
his blood samples should have been allowed because his consent to a
search and seizure of his blood was obtained by trickery, and
therefore was not voluntary. Specifically, the defendant contends
that detectives affirmatively misled him to believe that the test
results of his blood sample would be used only to compare with tests
done on blood found inside the fourth victim's car, and not for any
other purpose.
When the Commonwealth relies on consent to
justify the lawfulness of a search, it must prove that consent was
given freely and voluntarily. See Bumper v. North Carolina, 391 U.S.
543, 548-549 (1968). Voluntariness of consent "is a question of fact
to be determined from the totality of all the circumstances."
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
The defendant focuses on one factor that has been
identified under the "totality of all the circumstances" test,
namely, deception as to purpose. See 3 W.R. LaFave, Search and
Seizure, § 8.2 (n) at 706-713 (3d ed. 1996 & Supp. 2004). He relies
on Beasley v. State, 204 Ga. App. 214, 216 (1992) (consent to give
urine sample not voluntary where defendant charged with possession
of cocaine based on urine test results obtained after police officer
represented that "test results would be used only 'for determining
bond'" [emphasis added]), and Graves v. Beto, 424 F.2d 524, 525 (5th
Cir.), cert. denied, 400 U.S. 960 (1970) (consent to take blood
sample limited where defendant convicted of rape based on blood test
results obtained after police officer represented that blood sample
"would be used only to determine the alcoholic content of his blood"
[emphasis added]).
In those cases, consent was negated or limited by
a defendant's reliance on the express representation of a police
officer that the particular object to be seized would be used solely
for a particular purpose, and therefore a warrant was required for a
search and seizure for purposes beyond the self limiting
representation of police. See 3 W.R. LaFave, supra at § 8.2 (n) at
708.
Here, police made no express representation that
the test results of the defendant's blood would be used solely for
comparison to the tests on blood found in the fourth victim's car,
and the judge so found. Police are under no obligation to inform a
defendant of all purposes for which his blood tests might be used.
See Commonwealth v. Sanna, 424 Mass. 92, 98 (1997); Pace v. State,
271 Ga. 829, 832 (1999).
The defendant argues that the judge's "conclusion
that the defendant's blood was sought in connection with [the fourth
victim's] disappearance only, is clearly erroneous." He contends
that the judge could not have made this finding where the
disinterested nurse who drew the defendant's blood gave
uncontradicted testimony that a police officer told her that the
defendant's blood was being taken in connection with several recent
murders, "plural," not just the disappearance of the fourth victim,
whose body had not been found as of February 27.
The defendant's argument is based on testimony
taken out of context. The nurse's testimony, in context, indicates
that she had been told that there were others whom police wanted to
question concerning murders and from whom blood samples would be
sought. She did not testify that police told her the defendant was a
suspect in the murders.
In fact there were suspects who had been
questioned in connection with the murders, and as of February 27,
1998, the defendant was not one of them. Blood samples had been
taken from eight individuals, and the defendant was neither the
first nor the last of them. The judge found that "on February 27 the
defendant was not yet a suspect in any other unsolved homicide."
The judge's finding that the defendant's blood
was sought only in connection with the fourth victim was not clearly
erroneous. But, even if the police were interested in using the
defendant's blood test results in other cases and had not fully
disclosed their intentions, such an omission would not invalidate
the defendant's consent. Commonwealth v. Sanna, supra; Pace v. State,
supra.
The defendant himself placed no condition or
limitation, express or implied, on his consent, and the judge so
found. See Commonwealth v. Cantalupo, 380 Mass. 173, 178 (1980).
Indeed, the consent form signed by the defendant at the hospital
stated:
"After being advised of the rights outlined above
including my absolute right to refuse to consent to the taking of a
sample of my blood, [I] do hereby authorize, [the nurse] to take a
sample of my blood and to deliver said sample to [p]olice [o]fficers
of the [c]ity of Springfield, Massachusetts for whatever purpose
said [p]olice [o]fficers desire in connection with a police
investigation" (emphasis added).
The judge found, with ample record support, that
the defendant, who was not in custody, was advised that he had a
right to refuse to consent to the taking of a blood sample, that his
consent was not the product of coercion or deceit, and that police
had been courteous, honest, and forthright in their treatment of the
defendant. The judge also found, with record support, that the
defendant "stated repeatedly that he was willing to help the police
in any way he could." There was no error in the determination that,
in the totality of all the circumstances, the defendant's consent
was given freely and voluntarily.
b. Scope of consent. Closely related to
the question of voluntariness of consent to search is the issue of
the scope of consent to search. The defendant contends that the
scope of his consent was limited by what police told him, namely,
that they wanted to test his blood and compare the results with
testing done on blood found in the fourth victim's car.
"The standard for measuring the scope of a
suspect's consent under the Fourth Amendment [to the United States
Constitution] is that of 'objective' reasonableness -- what would
the typical reasonable person have understood by the exchange
between the officer and the suspect?" Florida v. Jimeno, 500 U.S.
248, 251 (1991). The scope of consent is ordinarily understood to
refer to the scope of the search, and is defined by the areas,
objects or things for which consent is given. Id.
Here, a reasonable person likely would have
concluded that police were seeking the defendant's blood tests
results, including his DNA profile. The object of the intended
search was a sample of the defendant's blood and the identifying
information that could be obtained by DNA testing of the sample. The
testing actually done on the defendant's blood sample was no more
intense or intrusive of his privacy interests than what was
expressly sought. The scope of the search, blood tests, was confined
to what a reasonable person would have understood from the request
by police. Florida v. Jimeno, supra.
Contrary to the defendant's claim, the scope or
object of the intended search was not the investigation into the
disappearance of the fourth victim, which police had mentioned.
Their statement about that investigation may have been relevant to
the voluntariness of the defendant's consent, but in this case it
did not define the scope of his consent. "The touchstone of the
Fourth Amendment is reasonableness." Florida v. Jimeno, supra at
250. "It would not be reasonable to require law enforcement
personnel to obtain additional consent or another search warrant
every time a validly obtained DNA profile is used for comparison in
another investigation." Pace v. State, supra at 832. "[L]ike a
fingerprint, DNA remains the same no matter how many times blood is
drawn and tested and a DNA profile can be used to inculpate or
exculpate suspects in other investigations without additional
invasive procedures." Id.
Although it is a suspect's right to limit the
scope of a search to which he consents, Florida v. Jimeno, supra at
252, the defendant did not avail himself of that right. The judge
properly concluded that the scope of the search for and of the
defendant's blood was not limited in the manner argued by the
defendant.
c. Statement of April 6, 1998. The
defendant argues that the motion to suppress his statement of April
6, 1998, should have been allowed because police deliberately
circumvented his attorney's instruction not to speak to him about
the case involving the disappearance of the fourth victim. The judge
found that counsel telephoned police on March 3 and directed them to
have no contact with the defendant concerning their investigation
into the disappearance of the fourth victim. Thereafter, police
learned that the defendant had been excluded as a contributor of the
blood found in the fourth victim's car. On April 6 they went to his
place of employment and told him of the test results without first
telling counsel. They also told the defendant that they knew he had
an attorney in the particular matter, and would not question him
about that case. The defendant spontaneously asked the officers
about their investigation into the other murders. They showed him
photographs of the other victims. He said he wished he could help
them, but he did not know the other victims.
The defendant accepts the judge's factual
findings and concedes that police were free to contact him about
investigations other than the one involving the fourth victim. See
Commonwealth v. Rainwater, 425 Mass. 540, 557 (1997), cert. denied,
522 U.S. 1095 (1998). What they could not do, he argues, is contact
him about the case involving the fourth victim after having been
forbidden by counsel to do so. The defendant contends that his
statement of April 6, 1998, obtained in derogation of his counsel's
demand, violates the core principles underlying the Fifth and Sixth
Amendments to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights, and should have been
suppressed.
The defendant concedes that Edwards v. Arizona,
451 U.S. 477 (1981), which requires suspension of interrogation
after a defendant asserts his Fifth Amendment right to counsel,
applies only in cases involving custodial interrogation. See McNeil
v. Wisconsin, 501 U.S. 171, 178 (1991). Here, the defendant was not
in custody on April 6, 1998, when he made his statement. The
defendant also concedes that the Sixth Amendment right to counsel
had not attached as of April 6 because no criminal proceeding had
been instituted against him. Id. at 175-178. In the circumstances,
art. 12 does not create any more expansive or additional right than
the Fifth and Sixth Amendments. See Commonwealth v. Beland, 436
Mass. 273, 288 (2002). The judge correctly concluded, "[t]he right
which the defendant claims the police violated simply does not
exist."
The Supreme Court has "never held that a person
can invoke his Miranda rights anticipatorily, in a context other
than 'custodial interrogation.'" McNeil v. Wisconsin, supra at 182
n.3. To rule otherwise, as the defendant would have us do, would
"seriously impede effective law enforcement." Id. at 180. We
previously have declined invitations to hold that art. 12 provides
greater protection than the Fifth and Sixth Amendments in this area,
concluding that there is "no sufficient reason to depart from the
balance the Supreme Court has struck between the interests of
defendants and interests of the public in Maine v. Moulton, [474
U.S. 159, 180 (1985)], and McNeil v. Wisconsin, [supra]."
Commonwealth v. Rainwater, supra at 554-555. See Commonwealth v.
Beland, supra. This case presents nothing that persuades us to
change that view.
Primary responsibility for exercising the
protections guaranteed by Miranda v. Arizona, 384 U.S. 436 (1966),
and art. 12 rests with suspects. See Commonwealth v. Beland, supra.
That is precisely what occurred here. The defendant understood his
rights and he understood how to exercise them. When he was invited
to the police station to give a statement, the defendant declined,
saying he understood his rights and would take the advice of his
attorney and not give any further statements.
The judge found that the defendant's inquiries
into progress of the investigations of the other cases were not
prompted by the news of the blood test results, but were spontaneous
and voluntary questions by the defendant about the other cases. The
motion to suppress the statement was properly denied.
3. Change of Venue.
The defendant filed a motion, based on massive
and prejudicial pretrial publicity, for a change of venue from
Hampden County to Suffolk County. The judge agreed that a change of
venue was warranted, but he ordered the case transferred to
Berkshire County for trial. The defendant claims that the transfer
of the case to Berkshire County deprived him of a jury drawn from a
fair cross section of the community, in violation of art. 12.
Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881
(1979). Specifically, the defendant contends that, in the
circumstances, the fair cross section standard requires a pool of
potential jurors representative of the Hampden County population,
and the only county having as many potential minority jurors as
Hampden County is Suffolk County.
When a defendant moves for a change of venue, he
waives his right to be tried by a jury drawn from a pool that is
representative of the venue where the crime occurred. Commonwealth
v. Rankins, 429 Mass. 470, 476 (1999). He has no State
constitutional right to have his case transferred to a county having
a minority population at least as great as the county where the
crime took place. Id. The defendant does not argue that the trial
jury were not drawn from a fair cross section of people in Berkshire
County.
The defendant contends that the Rankins case
cannot be reconciled with Smith v. Commonwealth, 420 Mass. 291
(1995), where this court held that a defendant whose case was
transferred to Middlesex County from Suffolk County was entitled to
a jury drawn from a pool that was representative of a fair cross
section of Suffolk County. There the defendant had opposed the
change of venue, which had been ordered for the administrative
convenience of the District Court Department. The defendant in the
Smith case, unlike the defendants here and in the Rankins case, had
not sought a change of venue, and therefore he did not waive his
right to be tried by a jury drawn from a fair cross section of the
community where the crime occurred.
A judge has substantial discretion to transfer a
case to another county based on pretrial publicity. Commonwealth v.
James, 424 Mass. 770, 775 (1997). A judge may consider race in
making his decision. Commonwealth v. Rankins, supra. Contrary to the
defendant's contention, the experienced trial judge appropriately
considered racial issues, including the fact that the defendant, all
the victims, and several Commonwealth witnesses are African-Americans.
He noted that there was "no allegation that race was a motivating
factor in any of these crimes, and there appears to be no reason to
suppose that the case is racially charged."
He called on his "experience with African-American
defendants in the Berkshire Superior Court," concluding that the
defendant would receive a fair trial in Berkshire County, and that
there was no "compelling reason to inconvenience the victims'
families or to add to the Commonwealth's burden and expense by
transferring this case to Suffolk County." The defendant has failed
to show an abuse of discretion in the transfer of his case to
Berkshire County.
4. Joinder.
The Commonwealth moved, pursuant to Mass. R. Crim.
P. 9 (a) (1), (3), for joinder of the indictments for trial on the
ground that the offenses were related. The judge found that joinder
would serve the interests of judicial economy, as many of the same
witnesses were involved in all or most of the cases and would have
to testify at four trials unless the cases were joined. See
Commonwealth v. Hoppin, 387 Mass. 25, 32 (1982).
He also found that the four cases were "related"
under the rule, reasoning that the evidence supported a finding of
"a common plan by the defendant to prey upon similarly situated
cocaine-addicted women for sexual gratification" and that there
exists "a sufficient temporal and schematic nexus to make joinder
proper." He ordered the cases joined. The defendant asserts that the
ruling is not supported by evidence of a common scheme or plan and
is therefore erroneous.
A decision to join offenses for trial is
committed to the sound discretion of the trial judge. See
Commonwealth v. Montanez, 410 Mass. 290, 303 (1991). The defendant
bears the burden of demonstrating that the offenses were unrelated,
and that prejudice from joinder was so compelling that it prevented
him from obtaining a fair trial. Commonwealth v. Wilson, 427 Mass.
336, 346 (1998). Offenses are related, for purposes of joinder, "if
they are based on the same criminal conduct or episode or arise out
of a course of criminal conduct or series of criminal episodes
connected together or constituting parts of a single scheme or
plan." Mass. R. Crim. P. 9 (a) (1). Where offenses are related as
defined in rule 9 (a) (1), "[t]he trial judge shall join the charges
for trial unless he determines that joinder is not in the best
interests of justice." Mass. R. Crim. P. 9 (a) (3). Factors that may
be considered in determining whether offenses are related for
purposes of joinder include factual similarities, see Commonwealth
v. Ferraro, 424 Mass. 87 (1997), and closeness of time and space,
see Commonwealth v. Delaney, 425 Mass. 587, 594 (1997), cert. denied,
522 U.S. 1058 (1998). "[O]ffenses are related if the evidence 'in
its totality shows a common scheme and pattern of operation that
tends to prove all the indictments.'" Id., quoting Commonwealth v.
Feijoo, 419 Mass. 486, 494-495 (1995).
The appropriateness of joinder often turns on
whether evidence of the other crimes would be admissible in a
separate trial on each indictment. See Commonwealth v. Gallison, 383
Mass. 659, 672 (1981). Evidence of other criminal conduct is not
admissible to prove the propensity of the defendant to commit the
indicted offense. Id. For purposes of joinder, however, it may be
used to show a common scheme or pattern of operation. Commonwealth
v. Feijoo, supra.
The factual similarities of the cases are strong.
Each victim had a history of cocaine use and had taken cocaine a
short time before death. Each victim had been sexually assaulted,
including anally, then strangled. There was evidence that the
defendant was a heavy cocaine user, and that he liked having
intercourse when he smoked crack cocaine. There was evidence that
about this time the defendant spoke of having anal intercourse with
women.
Each victim was found in a state of total or
partial nudity, and forensic evidence sharing the defendant's DNA
profile was recovered in each case from the victim's body or on
items in the immediate vicinity where her body was found. The
evidence in each case suggests that death occurred at approximately
the same time as sexual intercourse with the defendant. The crimes
were sufficiently close in time (three and one-half months) and
space (a small geographic area of Springfield in neighborhoods known
for prostitution and crack cocaine that were frequented by the
defendant and the victims) to make joinder appropriate.
The defendant frequented places where he could
meet cocaine- addicted women willing to participate in sexual
activity in exchange for cocaine, he indulged his own desires for
cocaine and anal intercourse with each of the women, then he
strangled them. The similarity between the victims, the manner and
circumstances in which each had been engaged by the defendant at
about the time of her death, and the manner in which death was
caused, support the judge's findings of common scheme and
relatedness of offenses. See Commonwealth v. Mamay, 407 Mass. 412,
416-417 (1990).
Contrary to the defendant's claim, the
differences in the cases do not render joinder inappropriate. There
is no requirement that the circumstances of the cases be identical.
Although the judge found that the similarities of the cases were not
sufficiently strong to establish a signature mark to prove the
identity of the killer, Commonwealth v. Brusgulis, 406 Mass. 501,
505 (1990), the circumstances of the cases were not offered for that
purpose. Here, powerful DNA and other evidence linked the defendant
to the victims at the times of death.
The judge correctly concluded that the
circumstances of the cases were sufficiently similar to show that
the defendant was acting pursuant to a common scheme, and were
relevant to questions of his intent and motive. See Commonwealth v.
Maimoni, 41 Mass. App. Ct. 321, 327-328 (1996) (prior bad acts
properly admitted to prove defendant's pattern of conduct and his
mental state at time of murder as one of "sexual aggressiveness").
With respect to the question of potential
prejudice to the defendant, the judge correctly noted that
considerations of judicial economy must yield to the defendant's
right to a fair trial. See Commonwealth v. Sylvester, 388 Mass. 749,
758 (1983). He considered whether joinder would foreclose or
substantially impair the defendant's presentation of a particular
defense. See Commonwealth v. Gallison, supra at 672. He also
considered whether the defendant might wish to testify on his own
behalf on one of the offenses, but not another, thus being forced to
choose the unwanted alternative of testifying as to both or
testifying as to neither. See Commonwealth v. Williams, 18 Mass.
App. Ct. 945, 947 (1984).
The judge noted that the defendant had not filed
a notice of alibi or otherwise indicated that he may have a defense
in one case but not in another. Eight months later, however, the
defendant served a notice of alibi as to the case of the second
victim only, together with a motion for relief from prejudicial
joinder. The motion was denied. The defendant's notice of alibi
identified two witnesses, and stated that he was not in the vicinity
of the second victim's murder on February 2, 1999.
Counsel filed an affidavit indicating that the
defendant also might testify. No other specifics were offered. The
pathologist testified that the the victim had been dead for one to
two days when the autopsy had been performed on February 3.
Therefore the defendant's whereabouts on February 2, 1999, may not
have been particularly exculpatory. Because the judge had not been
given any particulars about the testimony that might have been
proffered through the defendant or the named alibi witnesses, the
defendant failed to show how he would have been prejudiced. It is
not enough simply to assert the loss of a defense. See Commonwealth
v. Wilson, supra at 347; Commonwealth v. Williams, supra. We note
that the two witnesses through whom the alibi presumably could have
been presented at trial without the defendant's testimony did not
testify.
The judge also considered whether proof of the
defendant's guilt as to one offense might be used improperly to
convict him of a second offense. He noted that much of the evidence
in each case would be admissible in the other cases not only on the
question of common scheme, but also as to the issues of the
defendant's premeditation, his intent to kill, and his motive, and
correctly concluded that there was little chance of "seepage . . .
of evidence not otherwise admissible." Commonwealth v. Gallison,
supra at 672, quoting Commonwealth v. Beneficial Fin. Co., 360 Mass.
188, 221 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407
U.S. 910 (1972), and Beneficial Fin. Co. v. Massachusetts, 407 U.S.
914 (1972). The defendant has failed to show the existence of any
prejudice, much less prejudice that is so compelling that he was
denied a fair trial.
Finally, the judge's instructions to the jury
that they were to consider each of the indictments separately and
that they may only consider evidence of the other crimes solely on
the issues of the defendant's intent, motive, state of mind, or plan
were adequate to offset any possible prejudice from the joinder. See
Commonwealth v. Wilson, supra at 347. The defendant has failed to
show that joinder was improper and that it was prejudicial.
5. Admissibility of DNA Evidence.
The defendant filed a pretrial motion in which he
requested a "Daubert-Lanigan hearing" with respect to the
admissibility of DNA evidence the Commonwealth was expected to offer
in all four cases. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
Hearings were conducted as to both the first and
second series of tests, and the defendant now appeals from rulings
that (1) Cellmark's methodology in dealing with mixtures and
technical artifacts is generally accepted within the scientific
community; (2) Cellmark both performed its tests properly and
reported the results accurately; (3) Cellmark's election not to stay
within conservative recommendations of test kit manufacturers
regarding the minimum quantity of DNA tested did not invalidate the
studies; (4) the use of the product rule to make frequency
calculations for identifiable primary contributors in a mixed DNA
sample is acceptable; and (5) the database used by Cellmark to make
frequency calculations is adequate and common within the field.
a. Mixtures and artifacts. The
defendant first claims that the evidence does not support the
judge's conclusion that Cellmark can reliably distinguish technical
artifacts from true alleles, or primary from secondary contributors
in mixed samples of DNA. He does not challenge the scientific
validity of PCR testing. We previously have held that PCR-based DNA
analysis, both generally and at the DQ Alpha locus, the PM loci, and
the D1S80 locus, is a scientifically valid methodology for
developing DNA profile evidence. See Commonwealth v. Vao Sok, 425
Mass. 787, 799, 801-802 (1997). We reached the same conclusion with
respect to PCR testing at STR loci identified as CSF1P0, TPOX, and
TH01. Commonwealth v. Rosier, 425 Mass. 807, 812-813 (1997). The
defendant does not challenge the scientific validity of PCR testing
at the other STR loci designated under CODIS. His challenge focuses
on the second, or reliability prong of the Daubert-Lanigan inquiry.
A determination of the reliability of the testing
process entails a fact-based inquiry, including questions of
credibility. See Commonwealth v. Vao Sok, supra at 797, 798. The
analysis calls on a judge to determine whether testing was properly
performed, Commonwealth v. McNickles, 434 Mass. 839, 850 (2001), and
whether an expert's conclusions based on clinical experience and
observations were sufficiently reliable. Canavan's Case, 432 Mass.
304, 313 (2000). The judge's decision under the reliability prong is
reviewed under the abuse of discretion standard. Id. at 312.
Testimony indicated that it is not unusual to
find mixtures of DNA (a sample containing DNA from two or more
persons) in cases of sexual assault. The presence of a mixture of
DNA can create difficulties in interpreting test results. For
example, where DNA from two contributors is present in a mixture in
relatively equal amounts, the dots or bands (depending on the
particular test) produced by the two samples during the testing
process will display comparable intensity (darkness). In such cases
the Cellmark analyst will report the existence of a combination
without attempting to interpret the results.
Similar interpretive challenges arise from the
presence of technical artifacts: mistakes in the PCR amplification
process that replicates a defined segment of DNA through the use of
enzymes. Artifacts typically give faint readings. When a test result
suggests either an artifact or a secondary contributor and the
difference in intensity between readings is slight, the Cellmark
analyst will not attempt to distinguish them but will report the
result as not interpretable.
Where DNA from two contributors is present in a
mixture in unequal amounts, readings produced by the larger sample
will be darker than those of the smaller sample, roughly in direct
proportion to the difference between the amounts of the samples.
Where the differences are such that intensity readings from the
greater sample are dark and those from the lesser sample are faint,
the Cellmark analyst may conclude that the darker reading is
produced by a primary contributor and report her conclusion in the
same way she reports a single source sample, conformably with the
recommendation of the National Resource Council (NRC), The
Evaluation of Forensic DNA Evidence (1996) at 129.
We have treated the reports of the NRC as
authoritative works for purposes of determining generally accepted
standards within the scientific community for (a) the validity of
the underlying scientific theory, or (b) the reliability of the
underlying process for developing forensic DNA evidence. See
Commonwealth v. Rosier, supra at 815; Commonwealth v. Vao Sok, supra
at 801.
Here, only test results based on a single source
of DNA, or, where there appeared to be a mixture, only test results
that yielded strong evidence (dark bands or dots) of a primary
contributor were used. Consequently, a weak reading of a secondary
contributor or technical artifact had no effect on Cellmark's
ability to report the result of the primary contributor and
calculate a statistic of the probability of a random match to the
defendant's DNA profile.
The judge's findings that Cellmark's methodology
in reporting tests of a mixed sample with an identifiable primary
contributor in the same way it reports tests of a single source
sample conforms to the recommendation of the NRC, and that
Cellmark's methodology in dealing with the presence of mixtures or
technical artifacts is generally accepted within the scientific
community, were made with record support and well within his
discretion.
b. Conduct of tests. The defendant
suggests other known conditions that could affect the accuracy and
reliability of test results, including contamination, loci dropout,
allele dropout, differential amplification, stochastic effect,
spikes, and peak imbalances. We need not engage in a lengthy
discussion about these conditions. For purposes of this appeal, it
is sufficient to note that Cellmark analysts considered each of
these issues and factored them into their test results.
The judge accepted the testimony of Dr. Robin
Cotton, Cellmark's forensic laboratory director, with respect to the
many controls and safeguards that Cellmark uses to adjust for these
challenges, including threshold control dots to detect minimum
sample size at the DQ Alpha locus, the use of two different
manufacturers' test kits that test DNA at four of the same loci for
CODIS testing, controls to ensure against contamination at the PM
and D1S80 loci, and others.
The judge found that Cellmark follows the
standards adopted by the DNA advisory board, a group of individuals
authorized by Congress to advise the Federal Bureau of Investigation
on DNA testing, and the guidelines published by the Technical
Working Group for DNA Analysis Methods (TWGDAM) in 1995, except in
cases where those guidelines have been superseded by the DNA
advisory board standards. The judge did not abuse his discretion in
ruling that the test results were sufficiently reliable to be put
before the jury and that the questions raised by the defendant were
more appropriately addressed to the weight of the evidence. See
Commonwealth v. McNickles, 434 Mass. 839, 850-854 (2001).
c. Manufacturer's recommendations.
There is no merit to the defendant's contention that Cellmark's
failure to comply with the minimum standards for DNA sample sizes
set by the test kit manufacturers invalidated the test results. The
user's manuals for the Profiler Plus and Cofiler kits, both
manufactured by PerkinElmer, Inc., recommended that they not be used
with less than one to 2.5 nanograms (one billionth of a gram) of
questioned DNA, but many of the tests were conducted with less than
the recommended amounts.
The judge found that the manufacturers'
recommendations were just that, recommendations. They were intended
to ensure optimal results. He found, with record support, that
Cellmark had conducted validation studies that supported the
reliability of testing based on amounts smaller than recommended by
the manufacturers, amounts as small as one-half nanogram.
Cellmark had also conducted validation studies
indicating that analysts could reliably interpret computerized test
results (the second series of tests performed under CODIS) based on
readings as low as forty relative flourescent units (RFUs) rather
than the conservative level of 150 RFUs recommended by the
manufacturers, and the judge found that Cellmark's readings were
reliable.(2) There was no abuse of discretion.
The defendant's expert, Dr. Donald E. Riley,
ultimately conceded Cellmark's conclusions (that test results
matched the defendant's profile) were supported by the data and that
the defendant's and the victims' identified alleles matched those
identified by Cellmark's testing. The judge observed that "[a]ll
that Dr. Riley can really say is that there is a 'potential' for
this system of analysis to miss alleles and distort results. I
recognize that the potential for error exists in any scientific
testing, but I am satisfied that Cellmark has done all that is
reasonably possible to eliminate that potential" (emphasis in
original). He correctly noted that the issues raised by the
defendant went to the weight of the evidence, not its admissibility.
d. Use of the product rule. The defendant
argues that the judge erred by accepting the proposition that if an
analyst can distinguish between a primary contributor and a
secondary contributor in a mixed DNA sample, the analyst may
properly treat the primary contributor as a single source for
statistical purposes. His argument, essentially, is that the "product
rule," which has been held to be a scientifically acceptable method
for calculating frequency profiles based on results of PCR testing
of single source samples, see Commonwealth v. Rosier, supra at 816-
817, produces unreliable results in mixed samples; and that a "likelihood
ratio," which has been held to be a scientifically acceptable method
of calculating frequency profiles based on results of testing of
mixed samples, should have been used. See Commonwealth v. McNickles,
supra at 845-848.
Likelihood ratio analysis is appropriate for test
results of mixed samples when the primary and secondary contributors
cannot be distinguished. Id. at 846. It need not be applied when a
primary contributor can be identified. Contrary to the defendant's
view, the use of the product rule is scientifically acceptable where
the analyst can distinguish between a primary and a secondary
contributor in a mixed sample, and thereafter treat the primary
contributor as a single source for statistical purposes. See NRC,
Evaluation of Forensic DNA Evidence (1996), Executive Summary
Recommendation 4.1 at 5; State v. Roman Nose, 667 N.W.2d 386, 398 (Minn.
2003). In any event, at trial, Dr. Christopher Basten, the
Commonwealth's statistician in the field of population genetics,
recalculated the profile frequencies using likelihood ratios and
reached results comparable to those obtained under the product rule.
e. Cellmark's database. Finally,
the defendant contends that the judge erred in ruling that
Cellmark's database was adequate, that the absence of data on
African-Americans from Springfield in Cellmark's database was not a
matter of concern, and that the results of Cellmark's profile
frequency calculations through use of the product rule were reliable
and accurate.
The product rule refers to the product, or
multiplication, of the frequencies (probabilities) with which each
allele in a tested sample of DNA occurs in the population included
in the database. The resulting number is the probability of
someone's having the same characteristics as the sample tested. See
Commonwealth v. Curnin, 409 Mass. 218, 224 (1991).
The product rule is based on two assumptions
about the nature of genetic variants in the population. Those
assumptions are known as the condition of Hardy-Weinberg equilibrium,
and the condition of linkage equilibrium. Hardy-Weinberg equilibrium
is a condition that is achieved when there is no particular
relationship between the occurrence of alleles within a single
genetic marker. That is, when a person's parents meet randomly in
the general population. Linkage equilibrium is a condition that is
achieved when there is no particular relationship between genes.
That is, when genes are inherited independently, and not linked to
other genes. See id. at 225 n.11; NRC, Evaluation of Forensic DNA
Evidence (1996) at 90-91, 106-107.
Dr. Basten testified that he had conducted a
study of fifty databases, including Cellmark's, to determine whether
the frequencies of alleles at particular loci varied between
databases or between racial groups within the databases for the
population of the United States. He had presented the details and
the results of his study at two scientific conventions. Dr. Basten
concluded that there was consistency of allelic frequency between
the various databases and within the various racial groups, but that
allelic frequency varied between racial groups.
He also concluded that the size of Cellmark's
database, 103 persons,(3) is adequate and common within the field,
and that a database larger than Cellmark's would produce no
significant difference in result. He explained that the reliability
of profiling depends more on the number of alleles in the database
than the number of persons in the database.
Dr. Basten discounted the absence of data on any
African-American from Springfield in Cellmark's database because his
study of the fifty databases indicated that the African-American
population is fairly homogeneous across the United States. He
endorsed Cellmark's use of the product rule in making its profile
frequency calculations, and verified Cellmark's test results through
the use of the theta factor, a statistical adjustment recommended by
the NRC when dealing with possible subgroups,(4) or small isolated
populations. See NRC, Evaluation of Forensic DNA Evidence (1996) at
29-30. Dr. Basten employed the more conservative of the two theta
factors recommended by the NRC. Verification also was made through
the use of "confidence intervals." See Commonwealth v. Rosier, supra
at 814 n.14.
The judge found that Dr. Basten's use of the
conservative theta factor and confidence intervals were an "appropriate
corrective measure" to account for any possible substructure with
the African-American community in Springfield. He acted within his
discretion in ruling that Cellmark's database was adequate and that
the use of the product rule produced reliable results. See
Commonwealth v. Rosier, supra at 813-814.
6. Hearsay Testimony.
The defendant objected to the admission of
hearsay through police officers who testified that one of the three
women who was partying with the defendant on the evening of February
18, 1998, told police that she saw the fourth victim drive off with
the defendant after they returned from Holyoke. See Commonwealth v.
Silanskas, 433 Mass. 678, 693-694 (2001).
The testimony properly was admitted, not for its
truth, but to show the state of police knowledge that drew their
attention to the defendant: there were significant discrepancies
between the accounts given by the woman and the defendant as to the
events of February 18, 1998. See Commonwealth v. Rosario, 430 Mass.
505, 508-509 (1999). In any event it was merely cumulative of the
woman's properly admitted testimony, and therefore could not
constitute reversible error. See Commonwealth v. Connor, 407 Mass.
663, 670 (1990).
The defendant also contends that a similar error
occurred when a police officer testified in response to a question
by the prosecutor on redirect examination that a crack cocaine
dealer had given a written statement in which he said that the
defendant "used to be a runner," or acted as a middle man for drug
dealers, at 65 Maynard Street.
The Commonwealth contends that the testimony was
offered under the doctrine of verbal completeness to clarify the
context of a portion of the same statement used by defense counsel
in his cross-examination of the same police officer. Defense counsel
had elicited testimony from the officer that the drug dealer told
him that the fourth victim used to purchase crack cocaine at various
locations.
The portion of the statement that was admitted on
redirect examination did not serve to clarify the context of the
portion that was admitted during cross-examination or serve to
correct any distortion that might have been caused by a fragmented
version of events. It involved a different subject, and as such, was
not admissible under the rule of completeness. See Commonwealth v.
Watson, 377 Mass. 814, 825-831 (1979), S.C., 409 Mass. 110 (1991).
As there was no objection, we review under the
substantial likelihood of a miscarriage of justice standard.
Commonwealth v. Vinnie, 428 Mass. 161, 163-164, cert. denied, 525
U.S. 1007 (1998). The defendant does not explain how he was
prejudiced, and we perceive no harm -- in this case. Whether the
defendant may have been a middle man for drug dealers at 65 Maynard
Street would probably not raise an eyebrow in light of the full
range of illegal activity that openly took place at 65 Maynard
Street, where the defendant was all too well known.
7. Comments on Right to Remain Silent.
During cross-examination of the State police
chemist, defense counsel established that some tangible evidence had
not been sent to Cellmark and had not been analyzed by the State
police. The prosecutor was permitted, on redirect examination of
both the chemist and a Cellmark analyst, to elicit testimony that
the evidence nevertheless had been preserved and was available for
testing by either the Commonwealth or the defendant. This is a
sensitive area. However, we are satisfied that the testimony did not
constitute impermissible comment that the defendant failed to
produce evidence or that he had any burden to test the evidence. See
Commonwealth v. Conkey, 430 Mass. 139, 147 (1999), S.C., ante 60
(2004).
The testimony was admissible to bolster the
credibility of the witnesses by showing they did not try to hide
anything. See Commonwealth v. Evans, 438 Mass. 142, 153-154 (2002),
cert. denied, 538 U.S. 966 (2003). Moreover, the defendant did offer
expert testimony as to some evidence, vitiating any effect the
testimony may have had. Id. The judge thoroughly instructed the jury
at the end of the trial that the defendant had no burden to produce
evidence, and the burden of proof never shifted to him. There was no
error.
The defendant next contends that the prosecutor
improperly elicited testimony from a police officer who, when he
spoke to the defendant on April 6, 1998, mentioned that he knew the
defendant had consulted an attorney. The officer had testified that
he told the defendant they wanted to tell him about the blood test
results in the case of the fourth victim, as promised, but that they
knew he had consulted an attorney and therefore they would not
question him about that case.
He testified that the defendant thanked them,
then engaged them in conversation about the other cases. The judge
interrupted the witness in the middle of his answer to the question,
"Did he say anything else?" By doing so, the judge effectively
curtailed testimony that would have constituted improper comment on
a defendant's exercise of his right to remain silent and averted
reversible error. See Doyle v. Ohio, 426 U.S. 610, 619 (1976).
The officer was about to describe the portion of
the defendant's statement in which he declined, on advice of counsel,
to accompany the officers to the police station to give a statement
about the other murders. While it would have been preferable to
avoid the testimony about the defendant having consulted an attorney
(pursuant to a pretrial stipulation, for example), it did not, in
context, amount to a comment on his exercise of the right to remain
silent, see Commonwealth v. Waite, 422 Mass. 792, 798 (1996);
Commonwealth v. Sazama, 339 Mass. 154, 157-158 (1959), and there was
no suggestion that the defendant should be disparaged for having
retained counsel. Moreover, it could not have been construed as a
comment on the defendant's right to remain silent because he was not
silent but instead spoke freely. There was no error.
8. Motion to Limit Cross-examination of
Defendant.
The defendant alleges error in the denial of his
motion to limit the prosecutor's cross-examination of him to the
case of the second victim, in whose case he had filed a notice of
alibi defense. He argues that the denial of his motion deprived him
of his right to present an alibi defense.
The issue is related to the question of joinder,
and as discussed above in Part 4, supra, the defendant was not
deprived of the opportunity to present an alibi defense. He could
have presented an alibi defense through two alibi witnesses without
having to testify himself. The principle that the scope of cross-examination
is within the sound discretion of the trial judge applies to
criminal defendants who choose to testify on their own behalf. See
Commonwealth v. Judge, 420 Mass. 433, 444- 445 (1995). Thus, the
defendant has failed to show that the denial of his motion was an
abuse of discretion.
9. Prosecutor's Closing.
The defendant contends that the prosecutor's
closing was improper in many respects, some of which were the
subject of an objection. Where there was an objection, we review
under the prejudicial error standard. See Commonwealth v. Wilson,
427 Mass. 336, 351 (1998). In the absence of an objection we review
to determine whether the argument, if improper, created a
substantial likelihood of a miscarriage of justice. See Commonwealth
v. Allison, 434 Mass. 670, 686 (2001).
In determining whether an argument was improper
we examine the remarks "in the context of the entire argument, and
in light of the judge's instructions to the jury and the evidence at
trial." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231
(1992).
The defendant grouped the perceived improprieties
in four categories. In the first category are three instances where
he claims the prosecutor appealed to the emotions of the jury, all
without objection. The first instance occurred while the prosecutor
was describing the defendant's false statements and omissions in his
statement to police on February 27, 1998. The prosecutor referred to
the twelve dollars the defendant received from pawning the fourth
victim's earrings as "the value he put on [her] life."
The comment was brief, isolated, and out of step
with the strong and proper point he was in the process of developing.
Considering the closing in its entirety and the judge's repeated
instructions on the purpose of closing argument and the instruction
that the jury should not be influenced by sympathy, there was no
substantial likelihood of a miscarriage of justice. See Commonwealth
v. Mitchell, 428 Mass. 852, 857 (1999). Contrast Commonwealth v.
Worcester, 44 Mass. App. Ct. 258, 263-264 (1998) (repeated comments
about value of victim's life in combination with exhortations to "do
something about [the killing]," held prejudicial).
Second, the prosecutor's references to "the
killing zone" were not appeals to sympathy, but, in the context of
the entire argument, a shorthand expression for his argument that
physical evidence of the defendant's involvement in the murders was
found within the immediate area where each killing occurred or on
the victim's body or personal belongings. The comments were somewhat
awkward, but they were not improper.
In the third instance, the prosecutor referred to
the killings as creating a "time of terror" in Springfield. The
comment should not have been made, but it was not repeated or hard
driving, and it was not a principal focus of what otherwise was a
proper closing argument. Moreover, the absence of an objection from
experienced defense counsel is some indication that the comment did
not land a foul blow. See Commonwealth v. Kozec, 399 Mass. 514, 518
& n.8 (1987).
In the next category of alleged impropriety, the
defendant claims that the prosecutor impermissibly commented on the
defendant's failure to assist police. The defendant objected to this
portion of the argument. The argument was proper comment on the
defendant's motive for making false statements and omissions in his
statement to police on February 27, 1998. See Commonwealth v.
Morales, 440 Mass. 536, 551-552 (2003).
Even if improper, there was no prejudice. The
comment was brief, the judge's instructions informed the jury that
closing argument is not evidence and that the defendant has no
obligation to produce evidence, see Commonwealth v. Martino, 412
Mass. 267, 282-283 (1992), and the cases against the defendant were
overwhelming. See Commonwealth v. Wilson, 427 Mass. 336, 353 (1998).
In the third category of alleged impropriety, the
defendant claims that, on several occasions, the prosecutor asserted
his personal belief as to the facts. See Commonwealth v. Wilson,
supra at 352. There was no objection. We have reviewed the
transcript and are satisfied that in each instance the prosecutor
was drawing a permissible inference or was inviting the jury to draw
a permissible inference. There was no error.
Finally, the defendant argues that the prosecutor
misstated the evidence in two respects. We have reviewed the
transcripts and are satisfied that the prosecutor was arguing
permissible inferences that were grounded in the evidence.
10. Relief under G. L. c. 278, § 33E.
We have reviewed the transcript, the record, and
the briefs, and conclude that there is no reason to reduce the
verdicts or grant a new trial pursuant to our power under G. L. c.
278, § 33E.
Judgments affirmed.
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