Commonwealth v. Lally

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SJC-09926

COMMONWEALTH vs. THOMAS LALLY.

Norfolk. November 6, 2015. - March 3, 2016.

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

Homicide. Deoxyribonucleic Acid. Evidence, Prior consistent

statement, Prior misconduct, Subsequent misconduct.

Practice, Criminal, Capital case, New trial, Assistance of

counsel, Argument by prosecutor, Redaction.

Indictment found and returned in the Superior Court

Department on January 21, 2003.

The case was tried before Charles M. Grabau, J., and a

motion for a new trial, filed on June 16, 2010, was heard by

Kenneth J. Fishman, J.

Catherine J. Hinton (Charles W. Rankin with her) for the

defendant.

Pamela Alford, Assistant District Attorney, for the

Commonwealth.

HINES, J. The defendant, Thomas Lally, was convicted by

jury of murder in the first degree on theories of deliberate

2

premeditation and extreme atrocity or cruelty.1 Represented by

new counsel, the defendant filed a motion for a new trial based

on claimed errors at trial: (1) admission of deoxyribonucleic

acid (DNA) evidence;2 (2) admission of an audiotape of prior

consistent statements made by the Commonwealth's principal

witness, a cooperating codefendant; (3) admission of a

cooperating codefendant's plea agreement without proper

redaction; (4) admission of prior bad act evidence; and (5)

ineffective assistance of counsel for improperly advising the

defendant to testify and for failing to call surrebuttal

witnesses.3 A judge of the Superior Court who was not the trial

judge denied the defendant's motion after an evidentiary

hearing. The defendant appealed and it was consolidated with

his direct appeal, which raises the same issues. We affirm the

order denying the defendant's motion for new trial as well as

the defendant's conviction, and we discern no basis to exercise

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

1

The defendant also was indicted for conspiracy to commit

murder, but that charge was placed on file.

2

The defendant also argues that he was deprived of a fair

trial due to prosecutorial misconduct in this regard.

3

The defendant also argued in his motion for a new trial

that counsel was ineffective with respect to joint venture

instructions and certain motions. The judge rejected those

claims, and the defendant does not dispute that decision on

appeal.

3

Background. We recite the facts as the jury could have

found them, reserving other facts for later discussion. On

December 19, 2001, the defendant hit the victim with a frying

pan and tea kettle and then suffocated her until she died. He

moved her body to the bottom of a staircase and made it appear

to be an accident.

The night before the murder, the defendant slept at the

victim's house with two friends, Jason Weir and the victim's

great-nephew, Anthony Calabro.4 The victim, eighty-four years

old at the time of her death, owned a three-family house in

Quincy. She lived in the second-floor apartment with Anthony,

who had moved in with the victim the summer before the murder.5

Anthony was an intended beneficiary of her estate when she died.

Weir was sixteen at the time of the murder, four years

younger than the defendant and two or three years younger than

Anthony. Both Weir and the defendant lived with their own

parents, although Weir had lived with the defendant for a few

months during the summer of 2000. The defendant and Weir both

desired to move out of their parents' homes. During the fall of

2001, the defendant stayed at the victim's house approximately

five nights per week and Weir stayed there on the weekends.

4

Because Anthony Calabro shares a surname with the victim,

we refer to him by his first name.

5

Anthony's grandmother lived in the first-floor apartment

and his uncle lived in the third-floor apartment.

4

The defendant often commented about how he and Anthony

could kill the victim and get her money. Specifically, the

defendant said, "Wouldn't it be funny if we pushed her down the

stairs and got her money?"; "We can kill her and no one would

find out"; and that he could "knock her over the head with a

blunt object and then place her at the bottom of the stairs to

make it look like an accident." The defendant referred to the

victim as a "bitch," a "cunt," and a "douchebag."

On the day of the murder, the defendant, Weir, and Anthony

woke at approximately noon. That afternoon, the defendant

obtained the victim's frying pan and told Weir, "Today's the

day." Anthony went outside with the defendant's dog. The

victim saw the defendant enter the kitchen with her frying pan

and scolded him for taking her things without asking. She put

the frying pan in the pantry. The defendant retrieved it and

then used it to hit her on the head. Next, he hit her on the

head with a tea kettle, put his hand over her mouth and nose to

suffocate her, and said, "Just go. Anthony wants it this way."

Weir testified that he did not assist the victim because he

was afraid, "freaking out," and crying. The defendant told him,

"We all wanted this house" and "we're in it together," and then

told Weir to help him move the body to the steps. At the

defendant's urging, Weir helped move the victim down the front

stairs, which were infrequently used. Weir testified that he

5

only helped with the first few steps before he "[c]ouldn't do

it" anymore. The trio got in the defendant's vehicle and

Anthony drove Weir home. During the ride, the defendant said

that they needed to "bury the stuff" -- referring to the frying

pan and tea kettle used in the attack, and a floor mat, some pot

holders, and a newspaper from the victim's house -- at

Meadowbrook Pond in Norton.

Anthony and the defendant later returned to the victim's

home; just before midnight, a 911 call was placed reporting that

an elderly woman had fallen down. When the police arrived, the

deceased victim was lying at the bottom of the stairs. Anthony

and the defendant were upstairs in the victim's home. The

defendant had a welt on his nose, fresh scratch marks on his

right cheek, and a bite mark on his arm. He explained to police

that he received the injuries during a fight with Anthony the

prior evening.

A State police trooper noted suspicious circumstances in

connection with the claim that the deceased had fallen down the

stairs, including dust covering the handrail, the absence of

blood on the wallpaper or stairwell although the victim suffered

significant blood loss, and a urine stain that was not

anatomically correct for the position of the body. Conversely,

there were conditions consistent with a fall -- the deceased was

wearing footwear that was in "deplorable shape" and there was a

6

large trash bag next to her that she could have been carrying at

the time.6 He requested a full autopsy.

The medical examiner performed a rape kit to help to

determine the cause of death, which included taking hair

samples; DNA samples from the mouth, vagina, anal region, and

anus; and fingernail clippings and scrapings. He noted blunt

trauma to the top of her head, a fracture of the seventh

cervical vertebra, rib and clavicle fractures, and injuries to

her left hand. After determining that the majority of the

victim's injuries were consistent with a fall, he ruled the

cause of death as blunt neck trauma and the manner of death as

"fall down stairs."7

The defendant told Weir, "We fooled everybody," and told

another friend that it was a "perfect crime." He gave friends

varying explanations for the scratches on his face, telling some

that he received the scratches during a fight with Anthony and

others that his dog scratched him.

In March 2002, Anthony wrote two checks totaling $5,000 to

the defendant and two checks totaling $8,000 to Weir. He also

purchased a truck for the defendant and spent approximately

6

Two neighbors and Weir testified that the victim routinely

walked down the back stairs to remove her trash using small

bags.

7

The medical examiner explained that the injury to the top

of the victim's head was not consistent with a fall.

7

$50,000 on equipment for a band that Weir was in. The three

regularly stayed at the victim's home until shortly before it

was sold, in July, 2002. Anthony received approximately

$250,000 in proceeds from the sale.

In the summer of 2002, Weir was with a friend near

Meadowbrook Pond and saw the frying pan, the tea kettle, two pot

holders, and the welcome mat out in the open. After telling the

defendant about what he had observed, the two went to

Meadowbrook Pond and the defendant threw the objects in the

water.

In October, 2002, Weir's close friend, James Morel,

commented that it was a "coincidence that [the victim] wound up

the same way [the defendant] said she was going to." Weir then

told Morel about the murder. Morel alerted the Norton police to

the information he had received about the victim's death. State

police Trooper Brian Brooks met with Morel and asked him to wear

a wire and meet with Weir again. Morel agreed. When Morel next

met with Weir, the police followed them for three hours and

recorded the pertinent parts of their conversation.

During the meeting, Weir told Morel that the defendant had

killed the victim, and although he helped move the body and

clean up, he did not participate in the killing. Weir guided

Morel to Meadowbrook Pond and pointed to the location where the

items were disposed of after the murder. Morel later

8

accompanied police to the pond and the police recovered a

welcome mat, two pot holders, the top of a tea kettle, and

newspaper with a December, 2001, date. Subsequently, the police

drained the pond and found a tea kettle and a bent frying pan.

Based on this information, Weir and the defendant were

arrested on October 25, 2002, and charged with murder in the

first degree. Weir agreed to cooperate with police in exchange

for having his charge reduced to manslaughter with a prison

sentence of ten years.

DNA profiles for the defendant, Weir, Anthony, and Morel

were compared to male DNA found on three samples from the

victim's rape kit: fingernail scrapings, fingernail clippings,

and a perianal swab. In the initial testing, all four were

excluded as contributors to the perianal swab, which had been

contaminated with male DNA from the State police crime

laboratory. Weir, Anthony, and Morel were excluded as

contributors to the fingernail scrapings and the fingernail

clippings, but the defendant could not be excluded from either.

The defendant testified that Weir killed the victim and

that he received the injuries observed by police the night of

the murder when he attempted to intervene on the victim's

behalf. His stepsister testified to examples of Weir's behavior

that made her nervous and his stepfather testified to numerous

arguments between Weir and the defendant.

9

Discussion. 1. Standard of review. The primary issue at

trial was whether the defendant or Weir killed the victim. On

appeal, the defendant does not contest the sufficiency of the

evidence at trial. Rather, he contends that because the

asserted trial errors deprived him of a fair trial and that

trial counsel provided ineffective assistance, the judge wrongly

denied his motion for a new trial.

Where the defendant's appeal from the denial of his motion

for a new trial has been consolidated with his direct appeal, we

review both pursuant to G. L. c. 278, § 33E. Commonwealth v.

Lessieur, 472 Mass. 317, 323, cert. denied, 136 S. Ct. 418

(2015), citing Commonwealth v. McGee, 467 Mass. 141, 145 (2014).

Under § 33E, we review the denial of the defendant's new trial

motion "to determine whether there has been a significant error

of law or other abuse of discretion," McGee, supra at 146,

quoting Commonwealth v. Robideau, 464 Mass. 699, 702 (2013), and

whether any such error creates a substantial likelihood of a

miscarriage of justice. See Commonwealth v. Leng, 463 Mass.

779, 781 (2012).

Where the defendant's claims are based on ineffective

assistance of counsel, and none of the asserted errors was

preserved at trial, our § 33E review does not consider "the

adequacy of trial counsel's performance" under the rubric of

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Commonwealth

10

v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447

(2014). Instead, we give the defendant the benefit of a more

lenient standard that focuses more narrowly on whether there was

error and, if so, whether any such error "was likely to have

influenced the jury's conclusion." Id. The burden of proving

ineffectiveness rests with the defendant. See Commonwealth v.

Montez, 450 Mass. 736, 755 (2008), citing Commonwealth v.

Comita, 441 Mass. 86, 90 (2004).

2. DNA evidence. Relying on Commonwealth v. Mattei, 455

Mass. 840, 851-853 (2010), in which we held that nonexclusion

DNA results must be presented with statistics explaining the

significance of that evidence, the defendant challenges the

admission of the polymerase chain reaction (PCR) and Y-

chromosome short tandem repeat method (Y-STR) results. He

argues that the DNA evidence was erroneously admitted under

Mattei because the PCR result was admitted without any

accompanying statistical references to the significance of the

results, and the Y-STR evidence was admitted with inadequate

statistical information. He contends also that the prosecutor

compounded these errors by misstating the DNA evidence in the

opening statement and closing argument. In addition, the

defendant argues that his counsel provided ineffective

assistance in connection with the admission of the DNA evidence.

More specifically, he contends that defense counsel was

11

ineffective for failing adequately to inform himself about the

admissibility of such evidence, failing to object to or

otherwise seek exclusion of the evidence, and failing to cross-

examine the Commonwealth's DNA expert competently.

a. DNA evidence at trial. At trial, Jeffrey Hickey, a

former DNA analyst with Cellmark Diagnostics laboratory, which

later became Orchid Cellmark (Cellmark), testified that the

defendant could not be excluded as a contributor to DNA samples

taken from the victim's fingernail scrapings and fingernail

clippings. He analyzed the DNA using two methods. First, he

performed PCR testing, which compares thirteen regions of the

DNA taken from the victim against submitted profiles to

establish primary and secondary profiles and determine whether a

suspect could be excluded as a contributor. Because the PCR

test results were inconclusive for the fingernail clippings,

Hickey also performed Y-STR testing, which separates male DNA

and is frequently used when the analyst is unable to create a

primary profile from the mixture of male and female DNA.

From the fingernail scrapings, PCR testing showed that the

sample was a mix of male and female DNA, the primary DNA profile

was from the victim, a "few secondary types" of DNA were

located, and the defendant "could not be excluded as a potential

source" of those secondary profiles. Hickey did not provide

statistical information to demonstrate the relevance of this

12

nonexclusion PCR evidence, explaining that Cellmark does not

provide statistics on secondary profiles.

From the fingernail clippings, PCR testing was inconclusive

in that no primary or secondary profiles could be determined.

Once Hickey extracted only the male DNA, however, he was able to

produce a Y-STR profile containing twelve regions of DNA. He

testified that the male profile created from Y-STR testing "came

back to match [the defendant] at all of those regions that we

tested." Hickey provided context for this result through

statistical analysis, wherein he compared the results of the Y-

STR testing to a database of known DNA profiles and determined

that the profile occurred in one out of 1,311 Caucasian males,

and zero out of 1,108 African-American males, and zero out of

894 Hispanic males. He explained that Y-STR statistics are

"quite different" from PCR results -- where you can see numbers

in the "billions [or] trillions." In PCR testing, "a match

across all of those regions" would allow an expert to opine with

a reasonable degree of scientific certainty that a DNA profile

belongs to a specific person. Conversely, with Y-STR testing,

DNA results cannot discriminate among members of the same

paternal line and the statistical likelihood is never any

greater than the database available for comparison.

Hickey also testified to contamination of the perianal

swab. Specifically, he stated that the defendant, Weir,

13

Anthony, and Morel were excluded as sources of DNA. Because the

swab did not match any of the submitted male profiles, the State

police crime laboratory asked Hickey to analyze whether the

sample could have been contaminated by employees of Cellmark or

the crime laboratory. The swab was consistent with the DNA

profile of a male employee working at the crime laboratory. The

contaminating employee testified that he had handled all samples

that were taken from the victim. Additionally, the employee

explained a pretrial revision to his DNA analysis. He testified

that he first identified the presence of seminal fluid from the

vaginal and perianal swab. However, he later updated his

findings to identify the fluid as P-30, which is a protein that

can be found in urine.

Trial counsel's cross-examination of Hickey focused on the

contamination and Hickey's testimony at trial that the defendant

"matches" the Y-STR profile, noting that Hickey stated in his

report that the defendant could not "be excluded" as a source of

the DNA in the fingernail scrapings, not that there was a match.

Counsel's cross-examination of the crime laboratory employee

highlighted the contamination and change in identification from

seminal fluid to the P-30 protein.

The prosecutor commented on the DNA evidence in her opening

statement and closing argument. In her opening statement, she

told the jury that the evidence would prove that the defendant

14

was the "major contributor" to the right fingernail clippings

and that Weir and Anthony were excluded. In her closing, she

argued that Weir and Anthony were excluded as contributors under

both tests, and that the defendant could not be excluded from

either. She continued that the reference to nonexclusion was a

matter of "semantics," because Cellmark does not "use the term

'match'" for Y-STR testing, but "if you look at it, you'll see

all the numbers from [the defendant] correspond to the

fingernail clippings."

b. Posttrial DNA evidence. At the motion hearing, the

defense presented testimony from Dr. Michael J. Bourke, a

forensic scientist retained in 2005 by trial counsel and in 2009

by postconviction counsel, and from trial counsel for the

defendant. Dr. Robin Cotton, the former Cellmark laboratory

director, testified for the Commonwealth.

As to the PCR evidence from the fingernail scrapings, the

defendant argued that it was error to admit the evidence without

statistics. In that regard, the defense presented evidence that

Bourke alerted trial counsel in a pretrial memorandum to the

lack of statistics, advised that "the correct statistic to

perform on mixed samples is the combined probability of

inclusion," and questioned the admissibility of such evidence

without statistics. The memorandum noted that the statistical

information was important because the "small to limited number

15

of loci . . . , and the fact that these loci are mixtures, will

result in very modest random match probabilities." Cotton

likewise testified that testing only a "few" loci could provide

probabilities that are "very much smaller" than the large

numbers calculated using a full profile. She also testified

that statistical information could have been provided at the

time of the 2006 trial if requested; however, the information

was not routinely provided when the applicable report was

written.

As to the Y-STR results, the defendant argued that DNA

results from the Y-STR testing were erroneously admitted without

a "confidence interval" allowing for population frequency

calculation. The results were presented using a method known in

the field as the "counting method," which describes the

frequency in which a DNA match is found in a given database. A

"confidence interval" adjusts that result to account for

sampling errors and identical profiles being passed through a

paternal line, and thus increases the likelihood that the same

profile could be found in a population.8 See Scientific Working

8

Dr. Michael J. Bourke testified that there are several

methods available to calculate a confidence interval. Under the

"division by three" method that he used around the time of trial

and the ninety-five per cent calculation suggested by the

defendant, Bourke testified that the results of the confidence

interval calculation generally produces a result showing that it

is approximately three times more likely that a DNA profile may

16

Group on DNA Analysis Methods, Y-Chromosome Short Tandem Repeat

(Y-STR) Interpretation Guidelines, 11 Forensic Science

Communications, Federal Bureau of Investigations (Jan. 2009) at

§ 5.3 (Y-STR Guidelines). Bourke testified that the counting

method results "would be misleading without the confidence

interval correction." He did not advise counsel about Y-STR

deficiencies, but testified that he would have had he been

asked. Cotton testified that a confidence interval could have

been calculated at the time of trial, but Y-STR testing was in

its infancy at the time of the 2005 report and Cellmark's policy

did not provide for such a calculation.

The motion judge rejected the defendant's claims,

concluding that the defendant had failed to demonstrate that any

attempt to exclude the DNA evidence would have been successful

because the defendant did not establish that the Commonwealth,

if challenged, would have been unable to provide the requested

statistical information for either the PCR or Y-STR results.

The judge concluded that trial counsel was not ineffective

because questioning the DNA evidence was not likely to

accomplish "something material for the defense" in light of the

defense theory that Weir, not a stranger, was the real culprit,

and the case "did not hinge on DNA evidence." Additionally,

be found in a population than the number produced by the count

method.

17

although the judge found that the prosecutor did misstate the

evidence, he concluded that the error was unlikely to have

influenced the jury's conclusion where the evidence was "not

central to the Commonwealth's case."

c. Analysis of the DNA claims. Although Mattei was

decided four years after the trial in this case, our holding was

based on reasoning that dated back to 1991, when we required

that DNA results indicating a DNA "match" include accompanying

evidence of the likelihood of that "match" occurring. See

Mattei, 455 Mass. at 850, citing Commonwealth v. Curnin, 409

Mass. 218, 222 n.7 (1991). We held that it was error to present

nonexclusion DNA results from PCR testing without statistics,

especially where the jury heard evidence of "match" statistics

placing the likelihood of occurrence in the quadrillions and

quintillions, because the jurors could be misled into thinking

that the nonexclusion DNA results are similarly conclusive.

Mattei, supra at 848 n.17, 853. We explained that DNA evidence

is "of little or no value without reliable evidence indicating

the significance." Id. at 850-851. Moreover, we noted that

nonexclusion evidence presented without statistics could be even

more prejudicial than match evidence because jurors could be

misled into thinking that nonexclusion results are as

18

significant as the large numbers typically applicable to match

results.9 Id. at 856.

i. PCR evidence. We first review the defendant's claim

that it was error to admit the nonexclusion results from the PCR

evidence without statistical information providing context for

that result. The Commonwealth argues that there was no error

because counsel made a reasonable tactical decision not to

challenge the DNA evidence and, even if it was unreasonable,

statistical information could have been provided had the DNA

evidence been challenged on that ground. We agree with the

defendant and reject the Commonwealth's argument for two

reasons. First, Hickey testified at trial that there were only

"a few secondary types" of DNA identified by the PCR testing.

Although neither side presented evidence at the hearing on the

motion for a new trial of what the actual statistics in this

case would show, both experts agreed that the frequency of a

random match probability based on the limited number of loci

available in this case would be "modest" or small. Where the

jury heard evidence that PCR testing could result in "numbers in

the billions, trillions," but did not hear that the results in

9

Prior to the defendant's trial, other jurisdictions

required reliable statistics for nonexclusion results. See,

e.g., Dayton v. State, 54 P.3d 817, 818-820 (Alaska App. 2002)

(remanding for reliability determination of database used to

demonstrate required statistics to accompany nonexclusion

testimony).

19

this case (with less than a full profile) could be significantly

less, we cannot say that it was reasonable not to explore the

actual statistics before making a decision whether to challenge

the evidence. Second, even if the Commonwealth could have

provided statistics had the DNA evidence been challenged on that

ground, defense counsel "might have accomplished something

material for the defense" by challenging the evidence -- namely,

the jury would have been presented with statistical evidence of

small probabilities instead of an inference that the numbers

could be "in the billions, trillions," or the evidence would

have been excluded.10 See Commonwealth v. Satterfield, 373 Mass.

109, 115 (1977). See also Mattei, 455 Mass. at 856.

10

Although the defendant's burden in demonstrating

ineffective assistance of counsel for failing to file an

evidentiary motion has been stated as a requirement to

demonstrate that the motion would likely have been granted, see,

e.g., Commonwealth v. Walker, 460 Mass. 590, 599 (2011);

Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983), the proper

question is whether filing of the motion "might have

accomplished something material for the defense." See

Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977);

Commonwealth v. Saferian, 366 Mass. 89, 99 (1974). In this

case, the Commonwealth asserts that it would have presented

statistical evidence if the polymerase chain reaction (PCR)

results were challenged, and the record reflects that such

evidence would have shown "very modest random match

probabilities" that are "very much smaller" than the large

numbers often presented with PCR testing. Accordingly, even if

a motion in limine to exclude the deoxyribonucleic acid (DNA)

evidence would have been unsuccessful because the Commonwealth

could have provided the statistical information, the result of a

challenge would have accomplished something material for the

defense. Satterfield, 373 Mass. at 115. See Mattei, 455 Mass.

at 852 (lack of nonexclusion statistics could mislead jury into

20

Because this error is intertwined with the defendant's

other challenges relating to the DNA evidence, we reserve our

discussion regarding prejudice until after we discuss the

remaining claims.

ii. Y-STR evidence. The defendant next argues that the Y-

STR results should not have been admitted without a confidence

interval. We disagree. Our case law requires that nonexclusion

DNA evidence be presented to a jury with "reliable accompanying

evidence as to the likelihood that the test could not exclude

other individuals in a given population" so that the jury can

"evaluate the meaning of the result." Mattei, 455 Mass. at 852.

See Commonwealth v. Evans, 469 Mass. 834, 851-852 (2014)

(applying Mattei to Y-STR testing). This requirement was

satisfied because the counting method was a reliable method for

providing such evidence at the time of trial.11 Although

believing results are similarly significant to "exceedingly

infinitesimal random match probabilities" routinely presented

with match results). Moreover, the defendant argues that the

Commonwealth would not have been able to produce the statistics

in a timely manner if trial counsel had objected during Hickey's

testimony. Whether or not this factual assertion is valid,

counsel's failure to challenge the PCR results satisfied the

first prong of the test for ineffective counsel, even if it was

unlikely that a motion in limine would have been granted.

Saferian, supra at 96 (first prong analyzes whether counsel's

behavior fell "measurably below that which might be expected

from an ordinary fallible lawyer").

11

Dr. Robin Cotton testified that scientific literature at

the time of trial endorsed the use of the "count" method.

Although Bourke provided evidence that scientific literature

21

guidelines now suggest the use of a confidence interval to make

the statistics from the counting method more conservative, see

Y-STR Guidelines, supra,12 the counting method as explained in

Hickey's trial testimony provided sufficient context for the

results.

Hickey provided context for the Y-STR nonexclusion result

by providing the database frequency counts to the jury and

explaining that "count" information is limited because it is

only as good as the entries in the database and a Y-STR profile

is identical through a paternal line. Although a confidence

interval is more favorable to defendants because it corrects for

limitations with the counting method,13 the "count" evidence was

existed at the time of trial discussing the use of confidence

intervals with Y-STR testing, the defendant did not establish

that confidence intervals were routinely used at that time.

12

At the hearing on the motion for a new trial, the

defendant introduced an article written in 2007 that recommends

the use of a confidence interval calculation to "correct for

possible sampling error" after a count has been done. The

defendant also submitted guidelines promulgated in 2009 by the

Scientific Working Group on DNA Analysis Methods, an influential

source in the forensic community, which suggests that a "count

without a confidence interval is acceptable as a factual

statement regarding observations in the database" but a

"confidence interval corrects for database size and sampling

variation" and provides methods to calculate a confidence

interval if such is applied. See Scientific Working Group on

DNA Analysis Methods, Y-Chromosome Short Tandem Repeat (Y-STR)

Interpretation Guidelines, 11 Forensic Science Communications,

Federal Bureau of Investigations (Jan. 2009) at § 5.3.

13

Using the Caucasian database in this case as an example,

the confidence interval calculation increases the likelihood of

22

not unreliable, nor was it likely to mislead jurors into

thinking that the probability of another person contributing the

male DNA in the fingernail clippings was diminutive. The

purpose of requiring statistical evidence is to allow the jury

to evaluate the significance of DNA results. Evans, 469 Mass.

at 851, quoting Commonwealth v. Bizanowicz, 459 Mass. 400, 409-

410 (2011). There was no error because the "count" evidence

provided the required context.14

iii. Prosecutor's statements regarding DNA evidence. We

agree with the motion judge that the prosecutor misstated

evidence in her opening statement and closing argument. The

prosecutor's assertion in the opening statement that the

defendant could not "be excluded" as the "major contributor" to

the fingernail clippings was inconsistent with Hickey's

testimony that the defendant could not be excluded as a

contributor to the mixed profile. Likewise, the claim in the

closing argument that the difference between nonexclusion in Y-

STR testing and a "match" is a "matter of semantics" conflicted

with Hickey's testimony. Hickey explained to the jury the

meaning of "nonexclusion" in Y-STR testing by describing the

a match in the population from one in 1,311 profiles to one in

443.

14

We now encourage, without deciding whether it is

required, the use of a confidence interval when reporting Y-STR

nonexclusion testimony.

23

significant limitations that are not applicable to PCR testing,

where the word "match" is used. The defendant did not object,

and the jury were instructed that the opening statement and

closing argument were not evidence.

iv. Cross-examination regarding DNA evidence. We reject

the defendant's claim that trial counsel's cross-examination

regarding the DNA evidence was ineffective. Counsel testified

that he "completely shifted focus" from the lack of statistics

accompanying the PCR results because Bourke told him that the

defendant's DNA was found on the samples.15 Instead, he made a

tactical decision to highlight mistakes in investigation, such

as contamination, and to argue that the DNA found on the victim

did not belong to the defendant.16 We review a tactical or

strategic decision by trial counsel to determine whether the

decision was "'manifestly unreasonable' when made."

Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting

15

The defendant disputed that this statement was actually

made, describing it at the motion hearing as a

"miscommunication." The motion judge did not make any findings

about whether this statement was made, but he did credit trial

counsel's testimony that this statement affected his evaluation

of the DNA evidence. The motion judge determines matters of

credibility. Commonwealth v. Walker, 443 Mass. 213, 224 (2005),

citing Commonwealth v. Bernier, 359 Mass. 13, 16 (1971).

16

Although trial counsel averred that his failure to file a

motion in limine or conduct additional cross-examination was not

tactical, his testimony, explaining that he changed his trial

strategy after speaking with Bourke, suggests otherwise. The

motion judge did not make any findings in this regard.

24

Commonwealth v. Acevedo, 446 Mass. 435, 442, 845 (2006). There

were significant concerns with the evidence that counsel could

have highlighted -- contamination and initial findings of

seminal fluid that were later revised -- and counsel was faced

with the damaging fact that his client could not be excluded as

a contributor of the DNA found on the victim's fingernails while

Weir, the only third-party culprit in the case, was excluded.

We determine whether a decision was manifestly unreasonable by

"search[ing] for rationality in counsel's strategic decisions,

taking into account all the circumstances known or that should

have been known to counsel in the exercise of his duty to

provide effective representation to the client and not whether

counsel could have made alternative choices." Kolenovic, 471

Mass. at 674-675, citing Commonwealth v. Walker, 443 Mass. 213,

227-228 (2005). Although the PCR evidence should not have been

admitted without statistics, counsel was not ineffective for

failing to cross-examine on this issue or about the Y-STR

results in light of the advice he had received from his expert

and the risk of highlighting the DNA evidence after Weir was

excluded as a contributor.17

17

Trial counsel retained Bourke to educate him regarding

DNA and, after counsel had worked closely with Bourke on a

number of issues before trial, Bourke did not advise counsel

that there was any issue with the Y-STR evidence. Bourke may

not now suggest that counsel was at fault for failing to ask

about specifics of Y-STR results, a testing method in its

25

v. Prejudice. Although the admission of the PCR results

without statistics was erroneous, the defendant is not entitled

to a new trial on this ground. The defendant argues that he was

prejudiced because the PCR evidence without statistics created a

grave risk of misleading the jury into believing that the

defendant was the only possible contributor of the male DNA

found on the victim's fingernail scrapings and that landscaping

activities or her physical contact with others as a former

hairdresser were other possible explanations. Applying the test

"whether [the] error was likely to have influenced the jury's

conclusion," Wright, 411 Mass. at 682, the defendant's claim of

prejudice is easily dismissed. The possibility that the DNA

evidence could have come from an unknown third party was of

limited value where the defendant named Weir as the culprit and

where fresh scratches on the defendant's face the night of the

murder supported an inference that it was actually the

defendant's DNA that was found on the victim's fingernails.

Both the PCR evidence and the properly admitted Y-STR evidence

infancy at the time, without having alerted counsel to any

potential issues. See Commonwealth v. Kolenovic, 471 Mass. 664,

676 (2015) (expert's failure to correct counsel's approach after

consultation permits assumption that trial counsel's strategy

was acceptable). Moreover, counsel sent a copy of the

defendant's motion for discovery of tests employed and data

results to Bourke before filing it, asking him if counsel should

request anything else. Counsel testified that he stopped

considering a challenge to the DNA after Bourke told him that

DNA found on the victim belonged to the defendant.

26

excluded Weir as a contributor to any of the DNA found on the

victim. Thus, we can discern no prejudice where the result of

any confusion that could have occurred was of limited value to

the defendant and, more importantly, the Commonwealth presented

substantial other evidence against the defendant.

The defendant argues that the erroneously admitted DNA

evidence was "critical" because it corroborated Weir's testimony

naming the defendant as the killer and, for that reason, was

prejudicial. We disagree. First, the defendant gave a version

of the cause of the scratches on his face to police on the night

of the murder that was different from the one he testified to at

trial. See Commonwealth v. Montecalvo, 367 Mass. 46, 52 (1975)

(intentionally false and misleading statements to police

demonstrate consciousness of guilt). Additionally, the

defendant, not Weir, said prior to the murder that he could kill

the victim in a manner that was almost exactly the same way that

she died. The defendant told another friend after the murder

that it was a "perfect crime." Lastly, it was the defendant,

not Weir, who was present at the victim's apartment when the

police arrived on the night of the murder. Unlike Mattei, 455

Mass. at 856, where the DNA evidence was "crucial," the

Commonwealth provided strong corroborative evidence that the

defendant had committed the murder. Accordingly, there was no

substantial likelihood of a miscarriage of justice.

27

The prosecutor's misstatements, which insinuated to the

jury that the probability of "nonexclusion" in Y-STR results was

as significant as a "match" in PCR results, compounded the error

in the admission of the PCR results but added nothing to the

prejudice calculus sufficient to raise it to a level that would

entitle the defendant to relief. In reviewing whether a

prosecutor's misstatements require reversal, we consider "(1)

whether the defendant seasonably objected; (2) whether the error

was limited to collateral issues or went to the heart of the

case; (3) what specific or general instructions the judge gave

to the jury which may have mitigated the mistake; and (4)

whether the error, in the circumstances, possibly made a

difference in the jury's conclusion." Commonwealth v. Wood, 469

Mass. 266, 285 (2014), quoting Commonwealth v. Lewis, 465 Mass.

119, 130-131 (2013). Here, the prosecutor's misstatements do

not require reversal because trial counsel did not object, the

judge's instructions mitigated the errors, and the comments were

not likely to influence the jury's conclusion where, as the

motion judge found, this "case did not hinge on the DNA

evidence." See Wood, supra.

3. Admission of Weir's prior consistent statements. The

defendant argues that trial counsel was ineffective in

28

introducing the audiotapes between Weir and Morel,18 which

included statements made by Weir naming the defendant as the

assailant, asserting that he was "in shock" during the attack

because he never expected it to happen, and limiting his role to

moving the victim down the stairs and helping to clean up.

Moreover, Weir indicated on the tape that the defendant

suggested another murder. In his motion for new trial, the

defendant argued that "the tapes added nothing by way of

impeachment, other than showing Weir's tone of voice," because

trial counsel effectively cross-examined Weir prior to playing

the tapes. The motion judge rejected the defendant's claim,

concluding that it was not manifestly unreasonable to introduce

the tapes because "some, if not all, of Weir's statements" would

have been admissible after the defendant opened the door through

impeachment. On appeal, the defendant concedes that the tapes

were "unflattering" to Weir and therefore disputes that it was

inevitable that the prosecutor would have played the tapes.

"Impeachment of a witness is, by its very nature, fraught

with a host of strategic considerations, to which we will, even

on § 33E review, still show deference." Commonwealth v. Hudson,

446 Mass. 709, 715 (2006), quoting Commonwealth v. Fisher, 433

Mass. 340, 357 (2001). "Failure to use a particular method of

18

Before trial, counsel moved to suppress the tapes. When

unsuccessful, counsel decided to introduce the entirety of the

tapes for impeachment purposes.

29

impeachment does not constitute ineffective assistance of

counsel." Commonwealth v. Johnston, 467 Mass. 674, 696 (2014).

"[A]bsent counsel's failure to pursue some obviously powerful

form of impeachment available at trial, it is speculative to

conclude that a different approach to impeachment would likely

have affected the jury's conclusion." Hudson, supra, quoting

Fisher, supra.

Trial counsel explained that he made a tactical decision to

introduce the entirety of the tapes because he thought it was

important for the jury to hear Weir "bragging about what a good

liar he was and how he could beat a polygraph," and to "hear the

inflection in his voice" when talking about the murder -- that

he "laughed" and "joked" about the killing.19 We agree with the

motion judge that counsel's decision was not manifestly

unreasonable. The Commonwealth's case hinged on Weir's

testimony as it was undisputed that only three people were

present at the time of the murder -- the defendant, Weir, and

the victim -- and the defendant and Weir were each pointing the

finger at the other. Thus, impeaching Weir's version of events

was paramount to the defendant's case.

19

Although trial counsel noted that, in hindsight, it may

have been helpful to redact portions of the tape, at the time of

trial, he decided "in spite of the effect that the prior

consistent statement could have had on Weir's testimony," that

"it was important to hear the whole thing." He stated that his

decision was guided by the need to impeach Weir, noting that

"[t]here was nothing more important."

30

The tapes allowed trial counsel to impeach Weir in multiple

ways. First, the tapes impeached Weir's credibility through

specific examples of Weir's prior misconduct that may not

otherwise have been admitted. For example, Weir told Morel that

he stole $250 per day while working at a doughnut shop.20 The

prosecutor objected to playing the full tapes on this ground,

but the trial judge admitted the evidence because trial counsel

made the tactical decision to offer bad acts of both the

defendant and Weir that were discussed on the tapes. Although

"specific acts of misconduct of a witness, not material to the

case in which [he] testifies, are ordinarily inadmissible on

cross-examination to impeach [his] credibility," Commonwealth v.

Martin, 467 Mass. 291, 310 (2014), citing Commonwealth v.

LaVelle, 414 Mass. 146, 151 (1993), admissibility "lies in large

measure in the discretion of the trial judge," LaVelle, supra at

152, quoting Commonwealth v. McGeoghean, 412 Mass. 839, 841

(1992). Although trial counsel impeached Weir with this

information before playing the tapes, the trial judge had

allowed the bad act evidence because of counsel's decision to

play the tapes in full.21

20

The tapes also contained Weir's statements referencing a

prior arrest, a theft from a "guitar center," and other

incidents of "B & Es" and "larceny."

21

The prosecutor noted that she did not object to this line

of questioning because of the judge's ruling.

31

Next, the tapes revealed the inflection in Weir's voice

when talking about the murder and Weir's boasting about his

ability to lie. For example, Weir testified that he only helped

move the victim's body down a couple of the stairs before

telling the defendant, "I'm not doing this, man, this is all

you"; but he told Morel that moving the victim's body downstairs

was "just like lugging a fuckin' bag of potatoes."

Additionally, Weir told Morel that he could pass a polygraph

test by "creat[ing] an alternative persona," becoming "a

different person," and training to "make yourself believe that

you're someone else."

The defendant argues that the prior consistent statements

strongly bolstered Weir's credibility because the statements

were made to a friend. Offsetting that consideration, however,

was evidence contained on the tapes demonstrating Weir's motive

to lie to Morel. Weir told Morel that he was asked whether he

and the defendant "killed a lady and then threw her down the

stairs," a question he suspected arose from Anthony telling a

friend about the murder. Considering that Weir told Morel

numerous times that there was no proof he was at the victim's

home the day of the murder, and he could only get caught if one

32

of the three started talking, the rumor implicating Weir in the

murder provided motive to diminish his involvement.22

The defendant also takes issue with trial counsel playing

the portion of the tape containing Weir's statement that the

defendant suggested murdering a "bum." The context of this

statement, however, is just as, if not more, harmful to Weir as

the defendant because Weir immediately followed that statement

with the admission that he, not the defendant, then assaulted

the individual.

Although the tapes included statements detrimental to the

defendant and Weir's prior consistent statements, they provided

numerous benefits for impeaching Weir's version of events, and

counsel's strategic choice of method for impeachment was not

manifestly unreasonable. See Johnston, 467 Mass. at 696.

4. Admission of Weir's unredacted plea agreement. At the

start of the trial, the judge granted the defendant's motion to

redact the word "truthfully" from Weir's plea agreement in two

out of three instances. During trial, however, trial counsel

introduced the unredacted plea agreement, noting that he would

not publish it to the jury until it was properly redacted. The

final version submitted to the jury did not have "truthfully"

redacted. The judge instructed the jury at least twice that it

22

Shortly before the tapes were played, Weir testified that

he did not remember hearing this rumor.

33

was the jury's responsibility to determine whether Weir was

truthful, regardless of the fact that Weir made an agreement to

be "truthful."

The defendant argues that the unredacted plea agreement

violated his right to a fair trial under the Sixth Amendment to

the United States Constitution by providing "extraneous matter"

to the jury and that trial counsel was ineffective in this

respect. The Commonwealth does not dispute that failure to

redact was an error, but argues that the error did not prejudice

the defendant. See Commonwealth v. Ciampa, 406 Mass. 257, 262

(1989) ("Repeated references to [a] witness's obligation to tell

the truth should [be] deleted" from plea agreement).

The defendant's arguments are unavailing. The two

references to "truthful" were not extraneous because they were

cumulative of the one permissible reference. See Commonwealth

v. Greineder, 458 Mass. 207, 247-248 (2010), remanded by 133 S.

Ct. 55 (2012), aff'd, 464 Mass. 580 (2013) (information not

extraneous when cumulative of evidence at trial). Moreover, any

prejudice created by the error was minimized by the judge's

clear and forceful instructions to the jury that it was "solely

for the jury to determine" credibility and "whether Mr. Weir's

testimony [was] truthful or not." See Commonwealth v. Marrero,

436 Mass. 488, 502 (2002) ("effect of [clear and forceful]

charge was to dispel any implication inherent in the agreement

34

that the prosecutor warranted that [the witness] was telling the

truth"). Accordingly, there was no substantial likelihood of a

miscarriage of justice created by the failure to redact the two

extra references to "truthful" on Weir's plea agreement. Id.

5. Testimony regarding the defendant's bad acts. The

defendant next argues that the prosecution improperly attacked

his character through bad act evidence and that counsel was

ineffective for failing to object. The defendant points to two

specific examples: (1) several witnesses testified, in essence,

that the defendant, Anthony, and Weir "trashed" the victim's

home after her death and it became in "disarray"; and (2) the

victim's sister-in-law, who was seventy-eight years old at the

time of trial, testified that the defendant told her to go "f"

herself.

Although evidence of prior or subsequent bad acts "may not

be offered to prove bad character or criminal propensity, such

evidence may be admitted for another purpose where its probative

value is not substantially outweighed by the danger of

prejudice." Commonwealth v. Holliday, 450 Mass. 794, 815, cert.

denied, 555 U.S. 947 (2008), citing Commonwealth v. Stroyny, 435

Mass. 635, 641 (2002). See Commonwealth v. Source One Assocs.,

436 Mass. 118, 129 & n.13 (2002) (principles regarding prior bad

act evidence applicable to subsequent acts). Bad act evidence

may be admitted to show "a common scheme, pattern of operation,

35

absence of accident or mistake, identity, intent or motive."

Commonwealth v. Gollman, 436 Mass. 111, 113-114 (2002), quoting

Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). Postcrime

conduct "must be connected with the facts of the case or not be

too remote in time" to be sufficiently probative. Commonwealth

v. Cardarelli, 433 Mass. 427, 434 (2001), quoting Commonwealth

v. Barrett, 418 Mass. 788, 794 (1994).

Without deciding whether the trial judge would have

sustained an objection to this evidence, the motion judge

concluded that trial counsel was not ineffective for failing to

object because the evidence "could not have had appreciable

significance to the jury's verdict" in light of the evidence

concerning the "brutal killing of an eighty-four year old woman

in her home and [the defendant's] methodical actions to make her

death seem accidental." We agree.

We discern no error in admission of evidence of the

condition of the victim's home and the handling of her personal

possessions. See Commonwealth v. Mendes, 441 Mass. at 466-467

(postcrime spending habits relevant to motive and ability to

"pursue . . . lifestyle freely" after obtaining "control of her

inheritance"). Moreover, the evidence was correspondingly

damaging to Weir. The neighbors testified that they often saw

the defendant and Weir staying at the home after the murder and

indicated that both were responsible for the damage. We assume,

36

without deciding, that the admission of the defendant's

statement to the victim's sister-in-law was error.23 We agree,

however, with the motion judge that this singular comment was

not likely to affect the jury's verdict where, in addition to

evidence of the brutal killing, the jury heard evidence that the

defendant called the victim a "bitch," a "cunt," and a

"douchebag," and that he made jokes about her death.

6. Defendant's decision to testify. The defendant argues

that it was manifestly unreasonable for trial counsel to advise

him to testify because testifying allowed impeachment through

evidence of prior inconsistent statements he made the night of

his arrest. Counsel acknowledged he was aware of the statements

but advised the defendant to testify because he believed the

defendant was innocent and it was the only way to fully present

the defense that Weir had committed the murder. The motion

judge rejected the defendant's claim because of the "strength"

of the Commonwealth's case.

23

The Commonwealth argues that the evidence was relevant to

the defendant's state of mind at the time of the murder because

the defendant's interaction with the victim's sister-in-law

demonstrated his attitude toward residents at the victim's home.

The case cited by the Commonwealth, Commonwealth v. Riley, 467

Mass. 799 (2014) is inapposite. In Riley, supra at 818, bad act

evidence relating to three children all "living in the same

household [with] no evidence that the defendant treated any of

his children in a noticeably different manner" was relevant to

the state of mind regarding only one child. In this case,

however, the defendant's actions were toward a relative living

in a separate apartment within the same building.

37

Where the Commonwealth has a strong case against the

defendant and advising the defendant to testify may provide the

only "realistic chance" at acquittal, such advice is not

manifestly unreasonable. See Commonwealth v. Sharpe, 454 Mass.

135, 147 (2009). Additionally, trial counsel testified at the

motion hearing that he had had many conversations with the

defendant about whether to testify and that the defendant

decided to testify after counsel advised him that it was

ultimately his decision. The defendant's informed and voluntary

decision to testify undermines his claim. Commonwealth v.

LaCava, 438 Mass. 708, 716 (2003). Advising the defendant to

testify to his version of events was not manifestly unreasonable

where compelling evidence corroborated Weir's version.

7. Prior consistent statements. The defendant testified

that he told three friends that Weir had killed the victim.

During a voir dire, one of those friends testified that the

defendant said, "[Weir] did it," in front of her and another of

the friends during the month following the murder.24

The defendant argues that trial counsel was ineffective for

failing to call two of the friends as surrebuttal witnesses to

testify to the defendant's prior consistent statements. Counsel

24

The voir dire was held because trial counsel sought to

have the self-serving statements admitted. The trial judge

excluded the evidence because there was insufficient evidence

that Weir had heard the statement.

38

testified at the motion hearing that he thought that the

witnesses, based on their trial testimony, may be hostile to the

defendant. He conceded however, that the decision not to call

them was not well thought out. The motion judge rejected the

defendant's claim after finding that the decision was strategic

and concluded that it was not manifestly unreasonable. We

agree.

8. Cumulative effect of the asserted errors. Last, the

defendant contends that even if the asserted errors do not

warrant reversal of his convictions when considered

independently, their combined effect nonetheless gives rise to a

substantial likelihood of a miscarriage of justice. We reject

this argument. Even if we were to agree that all of the

challenged evidence should not have been admitted, the

Commonwealth presented other substantial evidence corroborating

Weir's testimony: the defendant's presence at the victim's home

the night of the murder; the scratches on his face and varying

explanations for the cause; his frequent precrime references to

killing the victim, sometimes stating the exact method that

occurred; and his postcrime statement that it was the "perfect

crime."

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

examined the record pursuant to our duty under G. L. c. 278,

39

§ 33E, and we discern no basis on which to grant the defendant

relief.

Conclusion. The judgment of conviction of murder in the

first degree is affirmed. The order denying the defendant's

motion for a new trial is also affirmed.

So ordered.