Commonwealth v. Alcantara

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11468

COMMONWEALTH vs. LEVI OMAR ALCANTARA.

Essex. February 6, 2015. - June 1, 2015.

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

Homicide. Evidence, Consciousness of guilt, Hearsay, Third-

party culprit, Relevancy and materiality, Medical record,

Privileged record, Cross-examination, Impeachment of

credibility. Practice, Criminal, Instructions to jury,

Hearsay, Record, Capital case. Witness, Cross-examination,

Credibility.

Indictments found and returned in the Superior Court

Department on June 7, 2006.

The cases were tried before Leila R. Kern, J.

Jeffrey L. Baler for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for

the Commonwealth.

CORDY, J. On April 22, 2006, Maria Sastre was beaten to

death with a hammer in her home. When one of her children,

Jesus, attempted to intervene, he, too, was beaten with the

hammer but was able to escape. Soon thereafter, the defendant,

2

Levi Omar Alcantara, called the police from a nearby gasoline

station claiming that he had also been a victim of the attacks

in Maria's home. In contrast, both Jesus and his brother,

Christopher, identified the defendant as the assailant. The

handle of the hammer tested positive for the defendant's

deoxyribonucleic acid (DNA), and red-brown stains on the

defendant's clothing were consistent with the DNA of both Maria

and Jesus.

The defendant was indicted for murder in the first degree,

assault with intent to kill, and assault and battery by means of

a dangerous weapon. A jury convicted him of all of the charges,

including murder in the first degree by reason of extreme

atrocity or cruelty. On appeal, the defendant assigns error to

several evidentiary rulings made by the trial judge. We find no

reversible error and no basis for exercising our authority under

G. L. c. 278, § 33E, to reduce the level of guilt or to order a

new trial. Accordingly, we affirm the defendant's convictions.

1. Background. a. The trial. We recite the facts that

the jury could have found, reserving certain details for the

issues raised on appeal. On April 22, 2006, Jesus awoke to the

sound of his mother screaming inside their home on Washington

Street in Lawrence. On further investigation, he observed a man

beating his mother with a hammer. Another of Maria's children,

Christopher, then observed the assailant on top of Jesus,

3

beating him with the hammer. Jesus was able to rid the

assailant of the hammer, at which point the assailant struck him

with a vase. Jesus wrested himself free and ran from the home.

Christopher then observed the assailant leave the home, jump

over a fence, and escape down an alley.

Jesus ran to a neighbor, who placed an emergency 911

telephone call in which she reported that "some guy went inside

[her] neighbor's house and he hit a little kid and he's bleeding

out of his head . . . screaming to [her] to call the ambulance

to help him." Lawrence police officers responded to the scene

and interviewed Jesus, who described the assailant as wearing a

blue or white T-shirt and blue or dark jeans. Jesus and

Christopher, who were fourteen and twelve years of age,

respectively, at the time of the assault, told the police that

they recognized the assailant as the cousin of their mother's

former boy friend, Ysidro Santos. 1 Maria was transported to the

hospital, where she was pronounced dead as a result of skull

fractures and brain lacerations caused by multiple "chop wounds"

of the head that were consistent with blows from a hammer.

Nineteen minutes after the neighbor's 911 call, the

defendant placed two 911 calls in which he stated that

1

The defendant was known to refer to persons as his

"cousin" regardless of any actual legal relation. Jesus and

Christopher testified that the defendant had previously

frequented their home with Santos and, on occasion, without him.

4

"something happened to [him]"; that he had been at Washington

Street; and that he was now at a gasoline station about one-

quarter mile away. An officer responded to the gasoline station

and found the defendant clad only in boxer shorts, socks, dress

shoes, and a torn and stained blue T-shirt; with scratches on

his face, forearms, and chest; and with a cut on his right hand.

The defendant approached the officer and screamed, "they tried

to kill me. They threw me in the car and they tried to kill me,

too."

The defendant was transported to the police station for

further questioning. The defendant told the police that four

Hispanic men entered Maria's home and beat him with a baseball

bat and the victim with a hammer. Two of the men then forcibly

removed the defendant from the home, placed him in their

automobile, removed his clothing, and robbed him. The defendant

stated that he subsequently was able to escape from the vehicle,

at which point he ran to the gasoline station and placed the 911

calls. When the defendant was being escorted to the police

station bathroom -- and, in the process, by an interview room

where Christopher was sitting with the door ajar -- Christopher

exclaimed: "That's the guy." Christopher and Jesus were

subsequently presented with photographic arrays and asked if any

of the photographs depicted the assailant. Both Christopher and

Jesus selected the defendant's photograph.

5

A request was made for Santos to submit a DNA sample, but

Santos never submitted the sample and the police never followed

up with him. The police did, however, obtain DNA samples from

the defendant, Maria, Jesus, and Christopher. The defendant's

DNA was consistent with a profile obtained from a red-brown

stain on the handle of the hammer. The handle also reflected

DNA from an unknown person. There was other DNA evidence

implicating the defendant as the hammer-wielding assailant. For

example, a red-brown stain on the defendant's shoe was

consistent with Maria's DNA, while a red-brown stain on the

defendant's T-shirt was consistent with both Maria's and Jesus's

DNA. The police did not find the remainder of the defendant's

clothing, which the Commonwealth attempted to explain by the

high water level of a nearby river. 2

The theory of the defendant's case was misidentification

and the failure by the police to conduct an adequate

investigation into other plausible suspects, including Santos

and the four men mentioned in his statement at the police

station. The defendant highlighted discrepancies between

Jesus's and Christopher's descriptions of the assailant, as

compared to the clothing the defendant was wearing at the

gasoline station and in surveillance footage from a convenience

2

The inference was that the defendant had discarded his

clothing into the river.

6

store shortly before the attack. The defendant also attempted,

with varying success, to introduce evidence that Santos was a

third-party culprit and that the police should have conducted a

more extensive investigation into his alleged role in

orchestrating the attack on Maria, Jesus, and, indeed, the

defendant. 3

b. Suppression and admission of the custodial statement.

Prior to trial, the defendant filed a motion to suppress the

statements he had made at the gasoline station and police

station. The motion judge observed that the statement at the

gasoline station was not made in response to police questioning

and, therefore, was not subject to suppression. In contrast,

the judge concluded that the Commonwealth failed to prove that

the custodial statement at the police station was voluntary

beyond a reasonable doubt. Consequently, the statement made at

the police station was suppressed.

At trial, however, the defendant moved to admit the

suppressed statement as evidence of a third-party culprit,

consciousness of innocence, and the inadequacy of the police

investigation. The Commonwealth objected and the judge

initially denied the motion, ruling that, even if the defendant

3

A voir dire was held in which a State trooper testified

that he interviewed Santos on the day of the attack. Santos

confirmed that he was Maria's boy friend, but averred that he

was with his parents at the time of the attack.

7

could waive his constitutional right to the suppression, the

statement constituted inadmissible hearsay. The Commonwealth

then withdrew its objection to the statement with respect to the

adequacy of the police investigation, prompting the judge to

admit the statement only for that limited purpose. The judge

then instructed the jury that the statement was "permitted to be

introduced by the defendant only as it bears on the police

investigation of this case. So it should be clear that the

Commonwealth had no choice, they were not permitted to introduce

this during their case-in-chief."

During the charge conference, the Commonwealth requested a

consciousness of guilt instruction referencing several

statements that the defendant had made to the police. The

defendant objected to the use of the custodial statement for

this purpose, as it had only been admitted for the purpose of

challenging the police investigation. The judge disagreed,

stating to counsel that "once the Commonwealth withdrew its

objection to the custodial statements it obviously mooted or

made moot that limiting instruction." The judge later

instructed the jury:

"You've heard evidence suggesting that the defendant may

have made false statements; that is, he may have

intentionally made certain false statements around the time

of his arrest. If the Commonwealth has proven the

defendant did make those statements, you may consider

whether such actions indicate feelings of guilt by the

8

defendant and whether in turn such feelings of guilt might

tend to show actual guilt on these charges."

c. Midtrial hearings. During the trial, a hearing was

held to determine the admissibility of a statement by a local

convenience store clerk that there was "hearsay in the

neighborhood" that Santos had stated that Maria "deserved what

she got." In addition, a voir dire hearing was conducted to

determine whether the statements of Maria's daughter, Chabley,

and the godfather of Maria's children could be introduced

through the testimony of two State police officers as evidence

of a third-party culprit or inadequate police investigation.

Trooper Brian O'Neil testified that the neighbor gave him a

handwritten statement stating that Chabley had told the neighbor

that "her mother's boyfriend had threatened the mother. He told

her to watch her back, that one of these days something bad was

going to happen to her." Lieutenant James Dowling testified

that the godfather told him that Chabley had said "that [Y]sidro

Santos stated that he was going to have her mother killed

because she did not want to be with him anymore." Although, at

first, the godfather told Lieutenant Dowling that Chabley told

him this directly, the godfather later stated that he had heard

it from another person who had heard it from Chabley. The

judge concluded that each of these statements was unreliable

and, thus, inadmissible at trial.

9

2. Discussion. a. Consciousness of guilt instruction.

The defendant contends that the judge erred in allowing his

custodial statement to be considered as evidence of

consciousness of guilt, where the judge previously instructed

the jury that the statement was only admissible insofar as it

reflected on the adequacy of the police investigation. See

generally Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).

Because his challenge to the instruction was preserved at trial,

we review the claim for prejudicial error. Commonwealth

v. Burgos, 462 Mass. 53, 67, cert. denied, 133 S. Ct. 796

(2012).

"A consciousness of guilt instruction is permissible where

'there is an inference of guilt that may be drawn from evidence

of flight, concealment, or similar acts, such as false

statements to the police, destruction or concealment of

evidence, or bribing or threatening a witness.'" Id.,

quoting Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008).

"False statements to police may be considered as consciousness

of guilt if there is other evidence tending to prove the falsity

of the statements." Commonwealth v. Robles, 423 Mass. 62, 71

(1996). Such statements are not ensnared by the rule against

hearsay because they are offered not for their truth, but for

the proposition that the defendant's "version of events was

10

intended to be a lie." Commonwealth v. Caillot, 454 Mass. 245,

256 (2009), cert. denied, 559 U.S. 948 (2010).

Here, the Commonwealth presented evidence, apart from the

defendant's custodial statement, warranting a consciousness of

guilt instruction. The defendant's statements at the gasoline

station and during the 911 calls portrayed a version of events

in stark contrast to the testimony of the victim's children.

According to the defendant, the perpetrators kidnapped him and

attempted to kill him. According to Jesus and Christopher,

however, the defendant was the perpetrator. If the jury

accepted the children's version of the events, then the

defendant's statements reflected an attempt to lie to the police

about his role in the killing and assault. See id.

Consequently, it was not error for the judge to instruct the

jury that they could consider the defendant's statements as

evidence of consciousness of guilt if the Commonwealth proved

that the statements were false. See Commonwealth v. Martin, 467

Mass. 291, 308-309 (2014) (erroneous admission of cumulative

consciousness of guilt evidence not prejudicial error).

Nonetheless, as the Commonwealth concedes, the judge's

ruling that the consciousness of guilt instruction could also

encompass the defendant's custodial statement was inconsistent

with her prior ruling and instruction limiting that statement's

use to the adequacy of the police investigation. The

11

prosecutor's discussion of consciousness of guilt during closing

argument, however, was focused on the defendant's missing

clothing, his 911 calls, and his statement at the gasoline

station. In contrast, the prosecutor's use of the defendant's

custodial statement in her closing focused the jury specifically

on the reasonableness of the police response to the information

the defendant had provided. 4 See Commonwealth v. Rivera, 425

Mass. 633, 643 (1997) (prosecutor's closing argument did not

guide jury to prohibited inference). 5

Moreover, the judge did not share with the jury her ruling

that the statement was available to be used for consciousness of

guilt purposes, nor, in her final instructions, did she

explicitly invite the jury to draw a connection between the

custodial statement and consciousness of guilt. Although the

better practice would have been for the judge to have reminded

the jury that they could consider that statement only as

4

The prosecutor posed to the jury, "So the police, what do

the police do. . . . The police interview the defendant. And

he makes a number of statements to them. And you can consider,

I think when you consider the police investigation in this case,

whether they made any sense. They had spoken to Jesus Mandes,

and they had spoken to Christopher Mandes. They had that

information. . . . His story simply didn't make sense, and the

police, I would suggest, understood that."

5

In his closing argument, defense counsel contended that

the defendant's willingness to speak to the police at the police

station, "after they tell him, look, you have a right [not to

say anything]," and "a right to a lawyer," was consistent with

his innocence.

12

evidence of the adequacy of the police investigation, "[w]e

presume that a jury follow all instructions given to

it." Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). As

far as the jury knew, the prior limiting instruction remained in

effect and the custodial statement was not part of the

Commonwealth's case. Thus, to the extent the judge's ruling on

consciousness of guilt constituted error, 6 the error "did not

6

At trial, the defendant argued that he was entitled to use

the suppressed statement as a shield, but that the Commonwealth

remained constitutionally precluded from using the statement as

a sword against him. Although the judge appeared to accept this

argument initially, we are not aware of any direct support for

it in the case law. As one commentator has explained:

"By introducing evidence obtained illegally, the defendants

should also waive their rights to exclude other evidence

obtained in the same unlawful search, seizure, or

interrogation as that which yielded the evidence they

introduce. It does not advance the goal of protecting

affected defendants from the consequences of those

constitutional violations if they are not so much objecting

to the violation of their rights as trying to take

strategic advantage of it with evidence they would not

otherwise have. While they undoubtedly would prefer to

take advantage of suppression to use any exculpatory proof

gathered illegally while excluding the inculpatory proof,

there is no justification for allowing them to do so. . . .

A defendant insisting in good faith on protection from the

consequences of authorities' illegality is hard pressed to

claim that he is entitled to exploit those consequences

selectively. . . ."

Kainen, Shields, Swords, and Fulfilling the Exclusionary Rule's

Deterrent Function, 50 Am. Crim. L. Rev. 59, 92 (2013). These

principles have found general application both in the

Commonwealth and in other jurisdictions. See, e.g.,

Commonwealth v. Redmond, 357 Mass. 333, 341 (1970) (in insisting

his attorney question witness concerning certain events,

defendant "lost the benefit of the earlier order suppressing

13

influence the jury, or had but very slight

effect." Commonwealth v. Bresilla, 470 Mass. 422, 440 (2015),

quoting Commonwealth v. Gambora, 457 Mass. 715, 729 (2010).

b. Admission of the neighbor's 911 call. The neighbor's

911 call, in which she stated that "some guy went inside [her]

evidence"); United States v. Pierson, 101 F.3d 545, 546 (8th

Cir. 1996), cert. denied, 520 U.S. 1202 (1997) (defendant opened

door to government's use of inculpatory statement previously

suppressed on Miranda grounds); Pettijohn v. Hall, 599 F.2d 476,

481 (1st Cir.), cert. denied, 444 U.S. 946 (1979) ("Once a

defendant attempts to introduce testimony that is intimately

interrelated with previously suppressed testimony, the defendant

waives his objections to the introduction of that related

evidence"); State v. James, 144 N.J. 538, 562-563 (1996)

(defendant may not selectively introduce suppressed evidence

without allowing government opportunity to place evidence in

proper context).

Yet, there is a tension in applying these principles to a

defendant's use of statements already deemed involuntary. On

one hand, involuntary statements are considered unreliable and

incompetent evidence, repugnant to due process and inadmissible

for any purpose at trial. Commonwealth v. Durand, 457 Mass.

574, 591-592 & n.22 (2010). On the other hand, prior to the

voluntariness determination, a defendant may waive the issue by

using the purportedly involuntary statements, thereby opening

the door to their use by the Commonwealth. Commonwealth v.

Williams, 379 Mass. 600, 604-605 (1980). Assuming without

deciding that the defendant was properly allowed to waive

voluntariness altogether and introduce the statement after

prevailing on his motion to suppress, it was not constitutional

error to allow the Commonwealth to respond by arguing that the

statement was false. See id. at 606 ("When a defendant, acting

through competent counsel, puts particular evidence in issue, he

may not effectively argue on appeal that his own trial strategy

denied him his constitutional rights"); Commonwealth v.

Pettijohn, 373 Mass. 26, 31 (1977) ("We assume without deciding

that the defendant is correct in his premise that, having

prevailed on the motion to suppress . . . the defendant was

privileged to make a timely waiver of his rights as to the

entire suppression issue").

14

neighbor's house and he hit a little kid," was admitted in

evidence over the defendant's objection. The defendant conceded

that the majority of the statement was admissible as an excited

utterance, see Mass. G. Evid. § 803(2) (2014), but that the

words "some guy" constituted inadmissible hearsay because they

were not based on the neighbor's personal knowledge. The

defendant renews this argument on appeal, contending that its

admission improperly undermined his narrative of four men

entering the house to commit the killing. We review for

prejudicial error. Commonwealth v. Middlemiss, 465 Mass. 627,

631 (2013).

"The broad rule on hearsay evidence interdicts the

admission of a statement made out of court which is offered to

prove the truth of what it asserted." Commonwealth v. DelValle,

351 Mass. 489, 491 (1966), S.C., 353 Mass. 684 (1968). However,

a statement is admissible as an excited utterance, "if (1) there

is an occurrence or event 'sufficiently startling to render

inoperative the normal reflective thought processes of the

observer,' and (2) if the declarant's statement was a

'spontaneous reaction to the occurrence or event and not the

result of reflective thought.'" Commonwealth v. Santiago, 437

Mass. 620, 623 (2002), quoting 2 McCormick, Evidence § 272, at

204 (5th ed. 1999). "Generally, evidence based on a chain of

statements is admissible only if each out-of-court assertion

15

falls within an exception to the hearsay rule." Commonwealth

v. McDonough, 400 Mass. 639, 643 n.8 (1987).

Here, the neighbor's statement made on the 911 call in the

presence of the bleeding and screaming child was clearly

admissible as an excited utterance. See Middlemiss, 465 Mass.

at 631 & n.4 (victim's 911 call seeking assistance admissible as

excited utterance); Commonwealth v. Harbin, 435 Mass. 654, 657

(2002) (bystander declaration admissible as excited utterance).

However, the neighbor did not observe "some guy" strike Jesus.

As such, that portion of the statement constituted totem pole

hearsay requiring its own exception to the hearsay rule.

See McDonough, supra. See also Commonwealth v. King, 436 Mass.

252, 255 (2002) ("declarant must have personal knowledge of the

event in question"). At the hearing on this issue, defense

counsel contended that it was Jesus who relayed this information

to the neighbor. 7 The judge replied aptly that the statement of

a child "who is standing in front of [the neighbor] bleeding

from his head" is likewise encompassed by the excited utterance

7

Although the defendant now argues that the identity of the

third-party declarant is unknown, the evidence supports the

position taken at trial. During the 911 call, the neighbor

asked, "What guy?" to a person in her presence. In light of the

fact that the neighbor also described Jesus as presently

bleeding from his head and screaming to her for help, it is at

least a reasonable inference that her question was in response

to his statement that a "guy" had struck him. Indeed, the

defendant used this to his advantage during closing argument by

pointing out that Jesus was unable to answer the neighbor's

question.

16

exception. See Commonwealth v. Snell, 428 Mass. 766, 777, cert.

denied, 527 U.S. 1010 (1999) (victim's statements to neighbor

immediately after defendant tried to kill her admissible as

excited utterance). There was no error. See King, supra at 257

(judge has broad discretion to determine whether prerequisites

for excited utterance have been met).

c. Exclusion of third-party culprit evidence. The

defendant contends that the judge erred in preventing him from

introducing the testimony of Trooper O'Neil, Lieutenant Dowling,

and the convenience store clerk, as well as the defendant's own

statement at the police station, as third-party culprit

evidence. We disagree.

"A defendant has a constitutional right to present evidence

that another may have committed the crime." Commonwealth

v. Conkey, 443 Mass. 60, 66 (2004), S.C., 452 Mass. 1022 (2008).

Consequently, we afford "wide latitude" to such

evidence, Commonwealth v. Silva-Santiago, 453 Mass. 782, 800

(2009), insofar as it tends to show that another person "had the

motive, intent, or opportunity to commit it." Id.,

quoting Commonwealth v. Lawrence, 404 Mass. 378, 387 (1989).

However, "because the evidence is offered for the truth of the

matter asserted -- that a third party is the true culprit -- we

have permitted hearsay evidence that does not fall within a

hearsay exception only if, in the judge's discretion, 'the

17

evidence is otherwise relevant, will not tend to prejudice or

confuse the jury, and there are other "substantial connecting

links" to the crime.'" Silva-Santiago, supra at 801,

quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004).

Moreover, "the evidence, even if it is not hearsay, 'must have a

rational tendency to prove the issue the defense raises, and the

evidence cannot be too remote or speculative.'" Silva-

Santiago, supra, quoting Commonwealth v. Rosa, 422 Mass. 18, 22

(1996).

Here, defense counsel essentially conceded that the store

clerk's testimony repeated an unsubstantiated rumor lacking in

evidentiary value. See Commonwealth v. Bizanowicz, 459 Mass.

400, 418-419 (2011) (defendant not entitled to base third-party

culprit defense on rumor). With respect to Trooper O'Neil's

testimony, the judge observed that there was no evidence as to

when Santos made the alleged statements to Chabley.

See Commonwealth v. Hunter, 426 Mass. 715, 716-717 (1998),

quoting Commonwealth v. Keizer, 377 Mass. 264, 267 (1979) ("acts

of the other person [must be] so closely connected in point of

time and method of operation as to cast doubt upon the

identification of [the] defendant as the person who committed

the crime"). With respect to Lieutenant Dowling's testimony,

the judge concluded that Loriano's statement was unreliable

because of the variations and multiple levels of hearsay.

18

See Commonwealth v. Cassidy, 470 Mass. 201, 216 (2014) (layered

hearsay with uncertain sources unreliable and inadmissible as

third-party culprit evidence). See also Commonwealth

v. O'Brien, 432 Mass. 578, 589 (2000) ("testimony would have no

tendency to prove that [a third party] was actually the

murderer, and would be confusing as no more than an opinion of

[the third party's] involvement"). The defendant's

constitutional rights were not violated by the exclusion of the

various hearsay statements implicating Santos.

It was likewise proper for the judge to exclude the

defendant's custodial statement as third-party culprit evidence.

The "substantial connecting links" between Santos and the

killing were clearly lacking in this case, where the only

admissible evidence of motive or intent was that Santos and

Maria had recently ended their relationship. See Commonwealth

v. Wright, 469 Mass. 447, 466 (2014) (evidence of former boy

friend's ill will or possible motive insufficient to support

third-party culprit defense). Moreover, the only evidence

supporting the defendant's version of the events involving the

four unidentified assailants was his own self-serving statement.

See Williamson v. United States, 512 U.S. 594, 600 (1994)

("Self-exculpatory statements are exactly the ones which people

are most likely to make even when they are false"). Although it

is possible that the police would have discovered additional

19

evidence had they conducted a more thorough investigation, their

failure to do so was admissible for Bowden, rather than third-

party culprit, purposes. Silva-Santiago, 453 Mass. at 802-803.

The judge was within her discretion to so limit the defendant's

use of that statement to the adequacy of the police

investigation. 8 See id. at 801 ("admission of feeble third-party

culprit evidence poses a risk of unfair prejudice to the

Commonwealth").

d. Exclusion of evidence undermining police investigation.

The defendant next argues that the judge abused her discretion

in failing to allow the defendant to introduce evidence of an

inadequate police investigation. The defendant assigns error to

the exclusion of the following: (i) the exclusion of the

defendant as a source of the DNA found in Maria's vaginal cells;

(ii) the presence of illegal drugs in Maria's body revealed

8

Moreover, the defendant was not precluded from presenting

a third-party culprit defense to the jury. The jury heard

evidence, which defense counsel reinforced in closing argument,

that there was deoxyribonucleic acid (DNA) of an unknown person

on the hammer; that there was hair from an unknown person found

in Maria's fingernail scrapings; that Santos and Maria had

recently ended their relationship; that Maria's blood was not

found on the defendant's hands; that the defendant purported to

be a victim of the attacks in his 911 calls and gasoline station

statement; and that Jesus's and Christopher's descriptions of

the assailant's clothing were inconsistent with the clothing the

defendant was depicted wearing in surveillance footage recorded

shortly before the killing. See Commonwealth v. Bizanowicz, 459

Mass. 400, 419 (2011) ("Nor did the judge's exclusion of these

statements deprive the defendant of the ability to present a

defense suggesting that [the third party] was the killer").

20

during her autopsy; and (iii) the testimony of Trooper O'Neil

and Lieutenant Dowling that Chabley said that Santos made

threatening statements about Maria. These claims are without

merit.

"Defendants have the right to base their defense on the

failure of police adequately to investigate a murder in order to

raise the issue of reasonable doubt as to the defendant's guilt

in the minds of the jury." Commonwealth v. Phinney, 446 Mass.

155, 165-166 (2006), S.C., 448 Mass. 621 (2007). "[T]he

inference that may be drawn from an inadequate police

investigation is that the evidence at trial may be inadequate or

unreliable because the police failed to conduct the scientific

tests or to pursue leads that a reasonable police investigation

would have conducted or investigated, and these tests or

investigation reasonably may have led to significant evidence of

the defendant's guilt or innocence." Silva-Santiago, 453 Mass.

at 801. This generally is referred to as the Bowden defense.

See generally Bowden, 379 Mass. at 486. Where, as here, the

defendant asserts a Bowden defense, the trial judge must

determine "whether the probative weight of the Bowden evidence

exceed[s] the risk of unfair prejudice to the Commonwealth from

diverting the jury's attention to collateral matters." Silva-

Santiago, supra at 803. "[T]he exclusion of evidence of

a Bowden defense is not constitutional in nature and therefore

21

is examined under an abuse of discretion standard." Id. at 804

n.26.

Here, the judge held hearings to determine the

admissibility of the proposed Bowden evidence. The sperm and

drug evidence was lacking in probative value. There was no

indication that Maria, who was found fully clothed, was engaged

in sexual intercourse around the time of the attack, nor was

there any evidence whatsoever suggesting that the killing arose

from a sexual relationship. The judge did not abuse her

discretion in ruling that the proposed evidence was likely to

confuse the jury. Cf. Commonwealth v. Nesbitt, 452 Mass. 236,

254 (2008) ("for inconclusive DNA evidence to be admissible, it

must be probative of an issue of consequence in the case").

Similarly, the judge did not abuse her discretion in ruling that

the drug evidence was not probative of police thoroughness,

where there was no indication that the drugs or supplier of the

drugs played any role in causing Maria's death.

Cf. Commonwealth v. Reynolds, 429 Mass. 388, 401 (1999) ("bare

statement that [a third party] and the victim dealt drugs

together lacks probative quality and would merely mislead the

jury").

Moreover, as previously stated, it was within the judge's

discretion to exclude the unreliable evidence of Santos's

threats. The defendant may not bootstrap that unreliable

22

evidence into a claim that the police haphazardly failed to

confirm Santos's alibi, where the police had two eyewitnesses --

each of whom knew both the defendant and Santos -- who

identified the defendant as the only assailant. As

in Commonwealth v. Wood, 469 Mass. 266, 278 (2014), where the

only reliable evidence implicating a third party in the killing

was a deteriorated relationship with the victim, the judge

properly excluded the evidence as more prejudicial than

probative.

In any event, the defendant "was permitted to challenge the

adequacy of the investigation as a whole," id., including the

failure of the police to follow up with Santos for testing in

connection with the unidentified DNA on the hammer and in

Maria's finger nail scrapings. See note 8, supra. The jury

were also allowed to hear the defendant's custodial statement,

in which he described the four men that he alleged committed the

killing and assaults. During closing argument, defense counsel

vigorously argued these points, as well as the inconsistencies

between the eyewitness descriptions of the assailant and the

clothing the defendant was observed wearing prior to and

following the killing. "Thus, where the issue of an inadequate

investigation was fairly before the jury, the defendant suffered

no prejudice from the exclusion of the proffered

evidence." Wood, supra.

23

e. Access to Christopher's treatment records. During

empanelment, the Commonwealth became aware that one of its

witnesses, Christopher, had been committed to a psychiatric

hospital in Florida on more than one occasion following the

killing. 9 The Commonwealth informed the defendant, prompting him

to seek discovery of the treatment records on grounds that the

information contained therein might reflect an impaired ability

to recall the events in question. The judge denied the motion,

ruling that the mere fact of subsequent psychiatric assistance

does not, by itself, constitute the necessary evidentiary

showing to allow a defendant access to a witness's treatment

records. 10

On appeal, the defendant appears to argue that showing a

potential for uncovering relevant information is sufficient to

compel access to statutorily privileged treatment records. That

9

Christopher was committed to psychiatric care pursuant to

a Florida law allowing for the hospitalization of an individual

at the request of a mental health professional, judge, or law

enforcement official, if believed that the person suffers from a

mental illness and poses a significant risk of harm to either

himself or herself or other people.

10

In denying the defendant's motion, the trial judge noted

that the evidence could become admissible if the Commonwealth

opened the door by suggesting that Christopher's condition was

triggered by the traumatic experience of finding his mother

beaten to death and his brother badly injured. During the

hearing, the Commonwealth indicated that it had no intention of

doing so.

24

is not the law. A party seeking to access statutorily

privileged treatment records must:

"establish good cause, satisfied by a showing '(1) that the

documents are evidentiary and relevant; (2) that they are

not otherwise procurable reasonably in advance of trial by

exercise of due diligence; (3) that the party cannot

properly prepare for trial without such production and

inspection in advance of trial and that the failure to

obtain such inspection may tend unreasonably to delay the

trial; and (4) that the application is made in good faith

and is not intended as a general "fishing expedition."'"

Commonwealth v. Sealy, 467 Mass. 617, 627 (2014),

quoting Commonwealth v. Lampron, 441 Mass. 265, 269 (2004).

Relevance is merely one factor in the analysis, and it is

not established by rank speculation. 11 See Sealy, supra at 628.

Compare Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433, 437

(2007) ("broad claims concerning the victim's lack of

credibility as a result of mental health problems are entirely

speculative and lack the specificity and reasonableness

required"), with Commonwealth v. Labroad, 466 Mass. 1037, 1039

(2014) ("Unlike in Bourgeois, [supra,] the defendant in this

case alleged, with particularity, that the [victim's]

11

For example, one might speculate that a child who finds

his mother beaten to death with a hammer would be prompted to

seek psychiatric assistance as a result. Cf. Commonwealth v.

Bourgeois, 68 Mass. App. Ct. 433, 438 (2007) ("references to

various psychiatric and other problems the victim appeared to be

experiencing all occurred at or about the time she revealed the

abuse and reasonably could be viewed as a consequence of the

defendant's abuse"). Yet, it is unclear, absent some further

showing, how this would be relevant to the witness's capacity to

perceive or recall the underlying event.

25

psychological records contained specific information regarding

her complaint of sexual assault"). Moreover, the defendant does

not even offer an argument on appeal as to the remaining factors

germane to the analysis. See Lampron, supra. In consequence,

we cannot say that the judge erred in denying the defendant

access to Christopher's treatment records.

f. Limitation on cross-examination of Christopher. During

the defendant's cross-examination of Christopher, the defendant

sought to impeach the witness's credibility by inquiring into

his use of prescription antipsychotic drugs around the time of

the incident. Notwithstanding the fact that he was unsure

whether Christopher was actually taking such drugs at the time

of the incident, defense counsel argued that the subject was

fodder for cross-examination because drug use could adversely

affect Christopher's ability to perceive or recall the events in

question. The judge found no evidence countermanding the clear

recall exhibited by Christopher and, as a result, barred defense

counsel from exploring the witness's drug use on cross-

examination. The defendant assigns error to this ruling. We

are not persuaded.

A witness may "be impeached by evidence challenging his

testimonial facilities (e.g., ability to perceive the events or

remember them accurately)." Commonwealth v. Daley, 439 Mass.

558, 564 (2003). "While defendants are entitled to reasonable

26

latitude on cross-examination, the scope of such cross-

examination, including the extent of impeachment of a witness

for credibility and competency, are well within the judge's

sound discretion." Commonwealth v. Carrion, 407 Mass. 263, 273

(1990). Evidence of a witness's use of legal or illegal drugs

is admissible on cross-examination if it would demonstrate an

impaired ability by the witness "to perceive and to remember

correctly." Id. at 273-274. However, the party seeking

admission of such evidence must show a connection between the

drug use and the witness's ability to perceive, remember, or

testify to the event in question. Commonwealth v. Caine, 366

Mass. 366, 369 (1974).

In the present case, the defendant did not introduce any

evidence that Christopher was on psychiatric medication at the

time of the incident other than an averment that the defendant

believed it to be so. Even if Christopher had been prescribed

psychiatric medication at or around the time of the incident,

there was no evidence to show that it would have impaired his

ability to perceive or recall the incident. Thus, the defendant

failed to establish the requisite nexus between Christopher's

alleged antipsychotic medication use and any possible

impairment. See Commonwealth v. Arce, 426 Mass. 601, 604 (1998)

("evidence of the use of drugs is not alone sufficient to show

that drug usage adversely affected [a witness's] perception and

27

memory"). See also Caine, supra at 370 (mere fact that witness

was committed to State hospital insufficient to compel testimony

regarding alleged habitual intoxication and drug addiction).

The trial judge did not abuse her discretion in limiting the

defendant's cross-examination on this point.

g. General Laws c. 278, § 33E. We have reviewed the

record in accordance with G. L. c. 278, § 33E, and have found no

basis to set aside or reduce the verdict of murder in the first

degree or to order a new trial.

Judgments affirmed.