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SJC-11346

COMMONWEALTH vs. LESLIE COLE.

Bristol. October 9, 2015. - December 18, 2015.

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

Homicide. Evidence, Medical record, Consciousness of guilt, 

Hearsay, Expert opinion. Deoxyribonucleic Acid. Witness, 

Expert. Constitutional Law, Confrontation of witnesses.

Practice, Criminal, Capital case, Hearsay, Instructions to 

jury, Confrontation of witnesses, Discovery, Argument by 

prosecutor, Required finding.

Indictments found and returned in the Superior Court 

Department on March 3, 2006.

The cases were tried before Robert J. Kane, J.

James E. Methe for the defendant.

Mary O'Neil, Assistant District Attorney, for the 

Commonwealth.

SPINA, J. A Superior Court jury convicted the defendant, 

Leslie M. Cole, of the murder in the first degree of Rudolph 

Santos (victim) on theories of deliberate premeditation, extreme 

atrocity or cruelty, and felony-murder, in violation of G. L. 
2

c. 265, § 1.1 On appeal, the defendant contends that (1) the 

trial judge erred by admitting in evidence unredacted medical 

records purportedly belonging to the defendant, together with 

related testimony from a nurse practitioner, and by instructing 

the jury on consciousness of guilt; (2) the admission of expert 

testimony concerning the statistical significance of 

deoxyribonucleic acid (DNA) evidence violated the defendant's 

constitutional right to confront witnesses; (3) the trial judge 

erred by admitting in evidence the victim's T-shirt, 

notwithstanding a purported discovery violation by the 

Commonwealth; (4) the prosecutor made improper remarks during 

her opening statement and her closing argument; and (5) the 

judge erred in denying the defendant's motion for required 

findings of not guilty. The defendant also requests that we 

exercise our authority under G. L. c. 278, § 33E, to reduce the 

conviction of murder to a lesser degree of guilt or to order a 

new trial. For the reasons detailed below, we affirm the 

defendant's convictions and decline to grant relief pursuant to 

G. L. c. 278, § 33E.

 

1 The jury also convicted the defendant of the assault of 

Christopher Busby by means of a dangerous weapon (knife), in 

violation of G. L. c. 265, § 15B (b); armed robbery, in 

violation of G. L. c. 265, § 17; and home invasion, in violation 

of G. L. c. 265, § 18C. The jury found the defendant not guilty 

of assaulting Busby with the intent to murder.
3

1. Background. We summarize the facts the jury could have 

found, reserving further details for our discussion of the 

alleged errors.

Shortly before Christmas in 2005, the defendant and William 

Fields, who sold drugs together, discussed the possibility of 

robbing an unspecified drug dealer in order to resolve a cash 

flow problem. One day when the two men were visiting the New 

Bedford home of Fields's friend, Shannon Almeida, they asked her 

if she knew anyone who had a gun. Almeida responded that she 

did, and she introduced them to Vincent Wadlington. On the 

evening of December 24, while at Almeida's house, the defendant, 

Fields, and Wadlington discussed plans to commit a robbery. 

They then drove to an apartment in Brockton, where Wadlington 

retrieved a sawed-off rifle and some ammunition. The three men 

drove back to New Bedford, stopping at another house so the 

defendant could get some dark clothes to wear. At around 10 

P.M., the defendant, Fields, and Wadlington returned to 

Almeida's home, and, approximately ninety minutes later, they 

decided that they were "ready to go and do this." The three men 

traveled in the defendant's motor vehicle to a multifamily home 

on Hillman Street, parked nearby, put on gloves and masks, 

walked to the house, and approached the back door. Wadlington 

was carrying the rifle.
4

That night, Christopher Busby was at home in that Hillman 

Street residence, spending time with his friend, the victim. 

The two men sold drugs from Busby's apartment, typically to 

people they already knew. They kept larger quantities of their 

supply in the cellar, which was always locked. The victim had 

possession of the key that night.

Sometime before midnight, Wadlington knocked on the 

apartment's door. In response to Busby's inquiry about who was 

there, Wadlington replied that it was "Eddie," but neither Busby 

nor the victim recognized the voice. Busby told "Eddie" to step 

near a window so he could see his face. Wadlington complied 

with the request, and he handed the rifle to the defendant. 

Busby did not recognize "Eddie," told the man that he would not 

sell him any drugs, and watched him walk away from the 

apartment. Several minutes later, Busby started to open the 

door so he could look outside. The defendant, Wadlington, and 

Fields kicked the door and rushed into the apartment.

The defendant fought with Busby. As Busby tried to defend 

himself, he felt someone striking him from behind, and he turned 

to see Fields hitting him with a metal pipe. Wadlington fought 

with the victim. Shortly after the altercation began, Fields 

left the apartment, returned to the defendant's vehicle, drove 

to a nearby house, knocked on the front door, and asked the man 
5

who answered to call the police because he had heard gunshots.2 

Fields then drove the vehicle back to where the three men 

originally had parked it, and he fled the scene on foot.

Meanwhile, back at the apartment, Busby was stabbed 

multiple times with a knife before collapsing and passing out. 

When he regained consciousness, he heard men's voices in the 

kitchen questioning the victim about the location of the drugs 

and demanding the key to the cellar. Busby quickly grabbed a 

Samurai sword that was leaning against a wall in the kitchen, 

swung it at the two assailants, and stabbed one of the men in 

the leg. After fighting with someone as he made his way down a 

hallway, Busby managed to reach his bedroom, where he fell onto 

the bed. He had difficulty breathing and was bleeding. Busby 

still could hear voices from the kitchen, and he realized that 

the victim had surrendered the key to the cellar when he heard 

one of the men running down the cellar stairs and back up again, 

asking, "Where are the drug[s]? Where are the drugs, Ru?" 

Busby then heard the sound of a gunshot and someone saying, 

"It's only a .22 rifle." The next thing Busby remembered was 

being treated by a paramedic.

 

2 William Fields testified that he had not actually heard 

gunshots, but that he said he did in the hope that emergency 

personnel would respond to the scene more quickly. Fields 

testified pursuant to a cooperation agreement by which, in 

return for his testimony, the Commonwealth agreed to allow him 

to plead guilty to lesser charges, and to receive a more 

favorable sentence.
6

Shortly before 1 A.M. on December 25, New Bedford police 

Officer Barry Pacheco and Sergeant Francis Rodriques arrived at 

the Hillman Street residence. After entering the apartment, 

which was in complete disarray, they observed a man lying on the 

floor, showing no signs of life. They then heard yelling from 

another room and discovered Busby lying face down on a bed, 

covered in blood, saying that he had been stabbed. Paramedics 

soon arrived and determined that the victim was dead. Busby, 

who had puncture wounds all over his body, was transported to a 

hospital and subsequently spent a week in a different hospital 

recovering from numerous stab wounds. State police criminalists 

processed the crime scene, including the stairs and walls 

leading down to the cellar, and collected evidence.

Following the events at Busby's apartment, Fields 

eventually returned to Almeida's home where he encountered the 

defendant, who had a bloody cloth wrapped around his thigh. 

When Fields asked the defendant what had happened to his leg, 

the defendant replied, "Well, you know, this is what happened in 

the house." The defendant left Almeida's home at around 6 A.M. 

on December 25. That same day, an individual named "Derrick 

Williams" was treated in the emergency room of Rhode Island 

Hospital (hospital) for a laceration to his thigh. A few days 

later, Fields looked in the trunk of the defendant's car and saw 

what appeared to be a Samurai sword, along with the clothes that 
7

the defendant had worn on the night of the assault. The two men 

drove to the docks located in the south end of New Bedford and 

threw the items in the ocean.

Dr. William Zane, a medical examiner for the Commonwealth, 

performed the autopsy on the victim. He testified that the 

victim had a gunshot wound to his right cheek, lacerations to 

his left upper eyelid and lower lip, contusions to his left 

cheek and forehead, abrasions on his right cheek and jaw, a 

gaping cut on the back of his left hand that went to the bone, 

cuts to his right wrist and forearm, and an eight-inch deep stab 

wound to his left buttock. Dr. Zane concluded that the victim 

died from the gunshot wound to his head, which penetrated his 

brain. He further concluded that a contributing factor in the 

victim's death was the stab wound to his buttock, which 

penetrated his lower abdominal cavity.

2. Admission of medical records, related testimony, and 

instruction on consciousness of guilt. The defendant first 

contends that the judge should not have allowed medical records 

from the hospital to be admitted in evidence because there was 

no foundational showing that the defendant was the same person 

who was treated at the hospital. The defendant objected to the 

judge's ruling, so we review any error in the admission of the 

medical records under the prejudicial error standard. See 

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
8

General Laws c. 233, § 79, excepts certain hospital records 

from the common-law rule against hearsay evidence. See 

Commonwealth v. Francis, 450 Mass. 132, 139 (2007); Bouchie v. 

Murray, 376 Mass. 524, 527 (1978). The statute provides that 

"[r]ecords kept by hospitals . . . under [G. L. c. 111, § 70,] 

shall be admissible . . . as evidence . . . so far as such 

records relate to the treatment and medical history of such 

cases." G. L. c. 233, § 79. See Mass. G. Evid. § 803(6)(B) 

(2015). Section 79 was enacted to relieve medical personnel 

from "the hardship and inconvenience of attending court as 

witnesses to facts which ordinarily would be found recorded in 

the hospital books." Commonwealth v. Gogan, 389 Mass. 255, 263 

(1983), quoting Leonard v. Boston Elevated Ry., 234 Mass. 480, 

482 (1920). See Francis, supra. "More importantly, however, 

the statute allows admission of the substantive content of 

hospital records because of the presumption of reliability which 

attaches to statements relating to treatment and medical history 

in these records. This presumption of reliability . . . arises 

primarily from the fact that entries in these records are 

routinely made by those charged with the responsibility of 

making accurate entries and are relied on in the course of 

treating patients." Bouchie, supra at 527-528. A trial judge 

has the discretion to exclude medical records in appropriate 

circumstances. See Doyle v. Dong, 412 Mass. 682, 687 (1992).
9

The medical records at issue here were for a patient named 

"Derrick Williams," who was treated in the emergency room of the 

hospital on December 25, 2005, for a laceration to his right 

thigh. According to these records, the patient stated that he 

had been wrestling the previous evening when he fell to the 

floor and onto a knife. The medical records also specified that 

"Derrick Williams" was born on November 15, 1979, and his 

mother's name was "Esther."

At a pretrial hearing, a nurse practitioner employed in the 

hospital's emergency department testified that she was working 

the 10 A.M. to 6 P.M. shift on December 25, 2005. She stated 

that she treated a dark-skinned male3 for a laceration on one of 

his thighs.4 State police Lieutenant Keith Blaney testified at 

trial that when he interviewed the defendant on January 11, 

2006, he began by asking some biographical information. The 

defendant stated, among other things, that his date of birth was 

November 15, 1979, that he lived in Rhode Island, and that his 

mother's name was "Esther." When Blaney asked the defendant 

 

3 The defendant is African-American.

4 At the pretrial hearing, the nurse also testified that on 

March 31, 2006, a State police trooper showed her one photograph 

of an individual, and she recognized that individual as the 

patient she had treated on December 25, 2005. The judge ruled 

that the identification procedure was unnecessarily suggestive 

and, therefore, not admissible. The judge indicated that the 

nurse could testify at trial regarding what she recalled about 

treating this individual, but she was not permitted to give any 

identification testimony.
10

whether he used any other names, the defendant responded that he 

had used "Derrick Williams" in the past, although not on 

Christmas Day. In response to another inquiry from Blaney, the 

defendant denied that he had a leg injury but, when he lowered 

his pants, Blaney observed a wound to the defendant's right leg, 

just above the knee, that was "still puffy and swollen." The 

defendant denied having gone to the hospital, first telling 

Blaney that the wound had healed by itself, and then stating 

that he had glued it. When asked how he had sustained the 

injury, the defendant gave Blaney several different 

explanations, including that he had been wrestling.

Following this testimony from Lieutenant Blaney, the judge 

admitted the medical records, stating that the evidence was 

sufficient to permit the jury to infer reasonably that the 

defendant was the person who was treated at the hospital on 

December 25.5 We agree. The judge properly determined that an 

adequate foundational showing for the admission of the medical 

records had been made.

The defendant next asserts that the judge erred in failing 

to redact statements in the medical records that indicated how 

 

5 The judge subsequently instructed the jury that they were 

the ones who had to decide, based on the evidence and the 

reasonable inferences that could be drawn therefrom, whether the 

defendant was the patient to whom the medical records pertained. 

The judge cautioned the jury that they should avoid guesswork, 

and he also instructed that an individual's use of a different 

name is not illegal.
11

the person who was treated at the hospital was injured. In the 

defendant's view, these statements were statements of liability 

and did not relate to the patient's treatment and medical 

history. In addition, he continues, even if the statements did 

relate to the patient's medical history, they could not be 

deemed reliable where these particular medical records were not 

sufficiently linked to the defendant, and, consequently, the 

individual who made the statements was unknown. We disagree 

with the defendant's arguments.

The admissibility of medical records relating to "treatment 

and medical history" is limited by the proviso that "nothing 

therein contained shall be admissible as evidence which has 

reference to the question of liability." G. L. c. 233, § 79. 

We have treated this proviso's reference to "liability" as 

encompassing criminal culpability. See Commonwealth v. Dargon, 

457 Mass. 387, 394 (2010); Commonwealth v. Dube, 413 Mass. 570, 

573 (1992). We also have said that "a record which relates 

directly and mainly to the treatment and medical history of the 

patient, should be admitted, even though incidentally the facts 

recorded may have some bearing on the question of liability." 

Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998), quoting 

Commonwealth v. Concepcion, 362 Mass. 653, 656 (1972). See 

Dube, supra.
12

Here, the statements in the medical records that, the 

previous evening, the patient had fallen to the floor and onto a 

knife while wrestling were relevant to his treatment by medical 

personnel. The amount of time that had elapsed since the 

patient had sustained the wound, the exact nature of the wound, 

and the circumstances of its occurrence, which could give rise 

to concerns about infection, were all important factors that 

would have a direct bearing on his treatment at the hospital. 

Given that there was ample evidence for the jury to infer that 

the medical records were those of the defendant, the statements 

could be presumed to be reliable. The judge properly determined 

that there was no need to redact the challenged portion of the 

medical records. We conclude that the judge did not abuse his 

discretion in admitting the medical records in evidence.

Following the admission of the medical records, the nurse 

subsequently testified at trial that at around 10 A.M. on 

December 25, 2005,6 she treated a thin, dark-skinned man for a 

laceration to his thigh, and that this patient had told her that 

he was injured the previous evening when, as he was wrestling, a 

knife fell off a counter and hit him in the leg.7 The nurse also 

 

6 Although the prosecutor asked the nurse about her work on 

December 26, 2005, the medical records clearly indicate that she 

treated a patient with a leg laceration on December 25, 2005.

7 The judge again instructed the jury that they were the 

ones who had to decide, based on the evidence and the reasonable 
13

identified her signature as the one appearing on the medical 

records. The defendant contends that because there was 

insufficient evidence that he was this patient, the testimony of 

the nurse constituted hearsay and should not have been admitted. 

We disagree. As already discussed, there was sufficient 

evidence for the jury to reasonably infer that the defendant was 

the patient who was treated by the nurse. That being the case, 

the testimony of the nurse was properly admitted because, as the 

defendant recognizes, it was not hearsay in these circumstances. 

See Commonwealth v. Marshall, 434 Mass. 358, 365 (2001) 

(extrajudicial statements by party opponent not hearsay); Mass. 

G. Evid. § 801(d)(2)(A) (2015). We add that the testimony of 

the nurse was relevant to when the defendant had sustained his 

injury, how the injury purportedly had occurred, and where on 

his body the laceration was located. Accordingly, the judge did 

not err in admitting the nurse's testimony in evidence.

Finally, the defendant contends that the judge erred in 

instructing the jury on consciousness of guilt because there was 

insufficient evidence to support such a charge where, in the 

defendant's view, the medical records and the testimony of the 

nurse should not have been admitted. During the charge 

conference, the Commonwealth requested a consciousness of guilt 

 

inferences that could be drawn therefrom, whether the patient 

about whom the nurse testified was the defendant.
14

instruction referencing use of a false name and false 

statements. The defendant objected, pointing out that the judge 

already had given an instruction about the use of a false name, 

see note 5, supra, and arguing that the jury could draw their 

own inferences without any further instruction on consciousness 

of guilt. The judge disagreed, stating to counsel that if the 

jury inferred that the patient who was treated at the hospital 

was the defendant, then they could consider whether the 

defendant had used a false name for the purpose of concealing 

his identity. The judge later instructed the jury on 

consciousness of guilt in conformity with Commonwealth v. Toney, 

385 Mass. 575, 585 (1982). As part of his instruction, the 

judge cautioned the jury that there may be numerous reasons why 

an innocent person might use a false name or make false 

statements, and that such conduct did not necessarily reflect 

feelings of guilt.

Because the consciousness of guilt instruction was given 

over the defendant's objection, we review for prejudicial error. 

See Flebotte, 417 Mass. at 353. Such an instruction is 

appropriate when the jury may draw an inference of guilt "'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." Commonwealth v. 

Stuckich, 450 Mass. 449, 453 (2008), quoting Toney, 385 Mass. at 
15

584. See Commonwealth v. Jackson, 419 Mass. 716, 730-731 (1995) 

(misrepresentation of identity may reflect consciousness of 

guilt). "The giving of this instruction presupposes that there 

is evidence of consciousness of guilt, communicates to the jury 

the judge's belief that there is such evidence, and directs the 

jury to decide whether to credit this evidence, and, if so, how 

to factor it into their deliberations." Commonwealth v. Vick, 

454 Mass. 418, 424 (2009). "It is within the trial judge's 

discretion whether to instruct the jury regarding the evaluation 

of evidence pertaining to consciousness of guilt." Commonwealth

v. Morris, 465 Mass. 733, 738 (2013).

We conclude that the judge acted within his discretion in 

deciding to give an instruction on consciousness of guilt over 

the defendant's objection. Such instruction was not based on 

inadmissible evidence. To the contrary, it was based on 

properly admitted evidence -- the medical records and the 

testimony of the nurse -- from which the jury reasonably could 

infer that "Derrick Williams," who was treated for a leg 

laceration at the hospital on December 25, 2005, was, in fact, 

the defendant. If the jury found that the Commonwealth had 

proved that the defendant had used a false name and made false 

statements, then they properly could consider whether such 

actions were indicative of consciousness of guilt.
16

3. Admission of DNA statistical probabilities. Amy Joy, a 

chemist at the State police crime laboratory, performed DNA 

analyses on several unknown samples that were recovered from 

different pieces of evidence. She targeted sixteen regions on 

the DNA sequence, and then employed a four-step testing process 

to generate individual profiles. After she had completed her 

testing, Joy compared each unknown profile to the eleven known 

profiles of various individuals that had been generated by other 

chemists at the crime laboratory. Joy testified on direct 

examination that, when making DNA comparisons, she generated 

statistics to give more meaning to each item of evidence.

After performing the four-step analysis on a swab of the 

tip of a black-handled knife, Joy determined that the DNA 

profile was mixed, meaning it contained the DNA of more than one 

person, and that the major profile was consistent with that of 

the defendant. She testified that the probability of a randomly 

selected, unrelated individual having a DNA profile that matched 

the major profile on this item was approximately one in 163.8 

trillion of the African-American population. Joy also analyzed 

a swab taken from a reddish-brown stain on a T-shirt found 

underneath the victim's body at the crime scene. Again, the DNA 

profile from the swab was mixed. Joy testified that the major 

profile matched the victim, and the minor profile was consistent 

with that of the defendant. With respect to this minor profile, 
17

Joy stated that the probability of a randomly selected, 

unrelated individual having contributed DNA to this mixture was 

approximately one in 5.3 million of the African-American

population. On cross-examination, Joy testified that once she 

made her comparisons between the unknown and known DNA profiles, 

she used a computer program called "Pop Stat" (Pop Stat) to 

calculate the statistical probabilities. She further stated 

that she did not create the computer program. Rather, it had 

been supplied to the State police by the Federal Bureau of 

Investigation.

The defendant contends on appeal that Joy's testimony 

concerning the probability statistics constituted hearsay, and 

that the admission of this testimony, over his objections, 

violated his right to confrontation under the Sixth and 

Fourteenth Amendments to the United States Constitution and art. 

12 of the Massachusetts Declaration of Rights. We review any 

error in the admission of this evidence under the prejudicial 

error standard. See Flebotte, 417 Mass. at 353.

In a criminal trial, we will "not permit the admission of 

test results showing a DNA match (a positive result) without 

telling the jury anything about the likelihood of that match 

occurring." Commonwealth v. Curnin, 409 Mass. 218, 222 n.7 

(1991). See Commonwealth v. Mattei, 455 Mass. 840, 851 n.25 

(2010) (DNA test results inadmissible without accompanying 
18

statistical interpretation); Commonwealth v. Daggett, 416 Mass. 

347, 357 (1993) (Abrams, J., concurring) ("expert testimony 

concerning a DNA match must be accompanied by some background 

information indicating the probability that the match in 

question might have occurred by chance"). The rationale for 

such an approach is that evidence of a DNA match has little or 

no value without expert testimony explaining the significance of 

the match, namely, "the mathematical probability that another 

person has this same DNA profile." Commonwealth v. Tassone, 468 

Mass. 391, 402-403 n.2 (2014). See Commonwealth v. Rosier, 425 

Mass. 807, 813 (1997); Commonwealth v. Lanigan, 419 Mass. 15, 20 

(1994).

As an initial matter, we conclude that Joy's testimony 

concerning the probability statistics was not hearsay. The 

function of Pop Stat is to enable DNA analysts to calculate 

statistical probabilities using population databases. In the 

absence of computer technology, DNA experts would be performing 

statistical analyses by hand. "We permit experts to base their 

testimony on calculations performed by hand, [and] [t]here is no 

reason to prevent them from performing the same calculations, 

with far greater rapidity and accuracy, on a computer" (citation 

omitted). Commercial Union Ins. Co. v. Boston Edison Co., 412 

Mass. 545, 549 (1992) (concluding that results of computer 

program used to calculate building steam usage were admissible). 
19

See Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 326-327 

(2009) (testimony regarding distance between two points that was 

based on use of computerized map not hearsay). See also 

Commonwealth v. Sheldon, 423 Mass. 373, 377 (1996) (blood test 

results presented through person who conducted test or attending 

physician admissible).

When Joy testified that she used Pop Stat to calculate 

statistical probabilities for major and minor DNA profiles, the 

relevant question was not whether her testimony was hearsay, but 

whether the foundation was sufficient for the introduction of 

the observed result. See Whitlock, supra at 327. The defendant 

seems to suggest that because Joy did not create Pop Stat and 

was not familiar with how the probability statistics were 

derived, her testimony lacked an adequate scientific foundation. 

To the extent that the defendant wanted to challenge the 

scientific reliability of the Pop Stat program, he was required 

to "file an appropriate pretrial motion stating the grounds for 

the objections and request a hearing in accordance with the 

principles set forth in Canavan's Case, 432 Mass. 304, 309-312 

(2000), and Commonwealth v. Lanigan, 419 Mass. 15, 24-27

(1994)." Commonwealth v. Sparks, 433 Mass. 654, 659 (2001). 

See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-595 

(1993). See also Commonwealth v. Gaynor, 443 Mass. 245, 263, 

268-270 (2005) (judge properly ruled on pretrial motion that 
20

database used by Cellmark Diagnostics Laboratories to make DNA 

profile frequency calculations was adequate and common within 

field); Galloway v. State, 122 So. 3d 614, 661 (Miss. 2013), 

cert. denied, 134 S. Ct. 2661 (2014) (expert witness testified 

that Pop Stat generally accepted and used by crime laboratories 

having access to Combined DNA Indexing System database). 

Because the defendant failed to request a Daubert-Lanigan

hearing to establish the reliability of the methodology 

underlying Joy's testimony, we do not consider the matter 

further. See Commonwealth v. Fritz, 472 Mass. 341, 349 (2015) 

(failure to request Daubert-Lanigan hearing to establish 

reliability of methodology underlying expert firearms 

identification testimony constituted waiver of issue). See also 

Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010), cert. 

denied, 131 S. Ct. 2441 (2011) (where defendant fails to file 

pretrial motion to challenge absence of foundational 

requirements for expert testimony, such testimony may be 

admitted in evidence). Instead, we turn our attention to the 

defendant's argument that the probability statistics generated 

by the Pop Stat program violated the defendant's confrontation 

rights.

The Sixth Amendment, which is applicable to the States 

through the Fourteenth Amendment, guarantees that "[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . 
21

to be confronted with the witnesses against him . . . ." See 

Pointer v. Texas, 380 U.S. 400, 403 (1965). The right of 

confrontation also is protected by art. 12, which provides that 

in a criminal trial "every subject shall have a right to . . . 

meet the witnesses against him face to face." See Commonwealth

v. Arrington, 455 Mass. 437, 440 n.4 (2009). The State 

Constitution has been interpreted to provide a criminal 

defendant more protection than the Sixth Amendment in certain 

respects, see Commonwealth v. Amirault, 424 Mass. 618, 628-632 

(1997), but when the issue involves the relationship between the 

hearsay rule and its exceptions, on the one hand, and the right 

to confrontation, on the other hand, "the protection provided by 

art. 12 is coextensive with the guarantees of the Sixth 

Amendment." Commonwealth v. DeOliveira, 447 Mass. 56, 57 n.1 

(2006). But see Commonwealth v. Tassone, 468 Mass. at 404 n.3 

(questioning whether protections remain coextensive in wake of 

fractured plurality decision in Williams v. Illinois, 132 S. Ct. 

2221 [2012]).

"The confrontation clause bars the admission of testimonial 

out-of-court statements by a declarant who does not appear at 

trial unless the declarant is unavailable to testify and the 

defendant had an earlier opportunity to cross-examine him." 

Commonwealth v. Simon, 456 Mass. 280, 296, cert. denied, 562 

U.S. 874 (2010). See Crawford v. Washington, 541 U.S. 36, 53-54 
22

(2004). Whether a particular statement is "testimonial" lies at 

the core of this analysis. See Davis v. Washington, 547 U.S. 

813, 823-824 (2006). In deciding whether an out-of-court 

statement is testimonial, "[f]irst, we determine whether the 

statement is testimonial per se," that is, whether it was "made 

in a formal or solemnized form (such as a deposition, affidavit, 

confession, or prior testimony) or in response to law 

enforcement interrogation." Simon, supra at 297, citing 

Commonwealth v. Gonsalves, 445 Mass. 1, 13 (2005), cert. denied, 

548 U.S. 926 (2006). "[I]f a statement is not testimonial per 

se, we consider whether the statement is nonetheless testimonial 

in fact." Simon, supra, citing Gonsalves, supra at 12. "A 

statement is testimonial in fact if 'a reasonable person in the 

declarant's position would anticipate the statement's being used 

against the accused in investigating and prosecuting a crime'" 

(emphasis added). Simon, supra, quoting Gonsalves, supra at 12-

13.

We conclude that the probability statistics are not 

testimonial. With respect to the first part of the inquiry, 

they are not statements made in a "formal or solemnized form" or 

"in response to law enforcement interrogation." Simon, 456 

Mass. at 297, citing Gonsalves, 445 Mass. at 13. As to the 

second part of the inquiry, the creator of Pop Stat would not 

anticipate that the probability statistics would be used to 
23

prosecute this particular defendant. See id. See also United 

States v. Pritchard, 993 F. Supp. 2d 1203, 1213 (C.D. Cal. 2014) 

(Pop Stat software used by DNA expert not testimonial, and 

statistical testimony given in reliance on such software did not 

violate confrontation clause). Statistical analyses can be 

performed for many reasons with respect to any number of 

individuals, wholly unrelated to the defendant in this case. 

Significantly, as we have discussed, when expert testimony is 

presented regarding a DNA match, it must include explanatory 

probability statistics so the jury can understand the 

significance of the match. See Lanigan, 419 Mass. at 20; 

Curnin, 409 Mass. at 222 n.7. Concluding that testimony 

concerning probability statistics violates a defendant's 

confrontation rights would be inconsistent with our wellestablished case law on the requirements for the admission of 

DNA evidence. Moreover, the defendant here was afforded, and 

took full advantage of, the opportunity to cross-examine Joy on 

the reliability of the probability statistics about which she 

testified. The defendant cannot claim a violation of his 

confrontation rights where he had the opportunity to expose 

flaws in the basis of Joy's testimony. See Barbosa, 457 Mass. 

at 785-786. Accordingly, the admission of the probability 

statistics did not violate the defendant's confrontation rights.
24

4. Admission of T-shirt. Maureen Hartnett, a chemist at 

the State police crime laboratory when the murder in this case 

occurred, testified that she had arrived at the crime scene at 

around 3 A.M., spent several hours processing the scene, 

collected a T-shirt from underneath the body of the victim, and 

brought it back to the laboratory for analysis. When the 

Commonwealth moved to admit the T-shirt in evidence, defense 

counsel objected, asserting that he had never received 

Hartnett's photographs of the T-shirt or a report indicating 

that she had placed it under a so-called "hood" to dry it out. 

The judge overruled the defendant's objection and admitted the 

T-shirt in evidence. However, the judge stated that Hartnett 

would remain in the court room during the lunch recess so that 

she could show and explain the photographs and any reports to 

defense counsel. The judge also stated that defense counsel 

would have the opportunity to recall Hartnett the following day 

if he did not feel that he had had sufficient time for crossexamination. Following the lunch recess and his crossexamination of Hartnett, defense counsel stated: "I did have 

the opportunity to meet with Ms. Hartnett during lunch and she 

showed me her photographs and I went through her notes. And I 

was satisfied with the documents that were provided."

The defendant contends on appeal that, due to the 

Commonwealth's discovery violation, the judge should not have 
25

admitted the T-shirt in evidence. We review any error in the 

admission of this evidence under the prejudicial error standard. 

See Flebotte, 417 Mass. at 353.

Pursuant to Mass. R. Crim. P. 14 (a) (1) (A) (vii), as 

amended, 444 Mass. 1501 (2005), the Commonwealth is obligated to 

"permit the defense to discover, inspect and copy . . . 

[m]aterial and relevant police reports, photographs, tangible 

objects, all intended exhibits, reports of physical examinations 

of any person or of scientific tests or experiments, and 

statements of persons the party intends to call as witnesses," 

provided that such items are relevant to the case and are within 

the control of the prosecutor. When a party fails to comply 

with its discovery obligations, Mass. R. Crim. P. 14 (c) (2), as 

amended, 442 Mass. 1518 (2004), confers on a judge the 

discretion to exclude evidence based on the party's 

noncompliance. We are mindful of the fact that discovery 

sanctions "are remedial in nature" and "should be tailored 

appropriately to cure the prejudice resulting from a party's 

noncompliance and to ensure a fair trial." Commonwealth v. 

Carney, 458 Mass. 418, 427 (2010).

Here, the judge gave defense counsel the opportunity to 

review Hartnett's photographs and report concerning the T-shirt. 

Defense counsel indicated that he was satisfied with the judge's 

approach. We conclude that the judge acted within his 
26

discretion, and that there has been no showing of prejudicial 

error.

5. Prosecutor's opening statement and closing argument. 

The defendant maintains that several of the prosecutor's remarks 

during her opening statement and her closing argument were 

improper, thus violating his due process rights and denying him 

a fair trial. The defendant first contends that the 

prosecutor's references to Christmas in her opening statement 

were an improper appeal to the jury's emotions.8 He acknowledges 

that he did not object to the remarks, but nonetheless argues 

that they created a substantial likelihood of a miscarriage of 

justice. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992). 

We disagree.

While it is improper for the prosecutor to play on the 

jury's sympathy or emotions, see Commonwealth v. Kozec, 399 

Mass. 514, 516-517 & n.5 (1987), "the prosecutor is entitled to 

set the scene." Commonwealth v. Santiago, 425 Mass. 491, 497 

(1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied, 525 

U.S. 1003 (1998). Given that the murder took place in the 

 

8 At the beginning of her opening statement, the prosecutor 

made the following remarks: "Christmastime, a time that we 

gather with our families and friends to plan how we are going to 

spend our holidays. Christmas time 2005, three men in New 

Bedford were planning. They were planning a home invasion and 

an armed robbery." Then, at the end of her opening statement, 

the prosecutor said, "There was no peace on earth or good will 

towards men that Christmas day at [the apartment on] Hillman 

Street."
27

minutes between Christmas Eve and Christmas Day, the 

prosecutor's references to Christmas in her opening statement 

merely set the scene with rhetorical flourish. See Commonwealth

v. Mejia, 463 Mass. 243, 255 (2012) (prosecutor's rhetorical 

flourish not ground for reversal). Although her unnecessary 

remarks about "peace on earth" and "good will towards men" would 

have been better left unsaid, their impact was not such that it 

created a substantial likelihood of a miscarriage of justice. 

See, e.g., Commonwealth v. Gentile, 437 Mass. 569, 580 (2002). 

We ascribe "a certain measure of sophistication" to juries, and 

a bare modicum of sophistication was all that was needed to 

discount the prosecutor's yuletide comments. Commonwealth v. 

Wilson, 427 Mass. 336, 350 (1998).

The defendant next argues that the prosecutor's statements 

in her closing argument regarding the location of DNA evidence 

were a distortion of the evidence,9 and that another statement by 

 

9 During her closing argument, the prosecutor first stated, 

"And you heard that, I would suggest to you, the DNA of Vincent 

Waddington [sic] was on those stairs and that the DNA of Vincent 

Waddington [sic] is in the Chevy Lumina. . . . We also have, I 

would suggest to you, this defendant's DNA found at the scene." 

Shortly thereafter, the prosecutor stated, "[The dog] didn't 

contaminate the scene, he didn't cause this defendant's DNA to 

show up. [The defendant's] DNA is there because he was there." 

The prosecutor later stated, "I would suggest to you that Mr. 

Fields tells you that on New Year's Eve he's at, he sees this 

defendant, 81 Mill Street, I believe, and he's got that same 

Chevy Lumina, the get-away car, the one that has Vincent 

Wadlington's DNA in it, even though this defendant says he 

doesn't know him."
28

the prosecutor improperly equated a guilty verdict with 

justice.10 Because defense counsel objected to these statements, 

we review for prejudicial error. See Flebotte, 417 Mass. at 

353. Remarks made during closing arguments are considered in 

the context of the whole argument, the evidence admitted at 

trial, and the judge's instructions to the jury. See 

Commonwealth v. O'Connell, 432 Mass. 657, 659 (2000), quoting 

Commonwealth v. Christian, 430 Mass. 552, 564 (2000).

"A prosecutor must limit comment in closing statement to 

the evidence and fair inferences that can be drawn from the 

evidence." Commonwealth v. Kelly, 417 Mass. 266, 270 (1994). 

See Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992) ("A 

prosecutor may, . . . in closing argument, analyze the evidence 

and suggest what reasonable inferences the jury should draw from 

that evidence"). Contrary to the defendant's assertions, the 

prosecutor's statements concerning the DNA evidence were neither 

a distortion of Joy's expert testimony nor statements of 

personal belief. Rather, they reflected reasonable inferences 

that could be drawn from Joy's testimony concerning the results 

of her DNA analyses and the related statistical probabilities. 

They also encompassed a proper response to defense counsel's 

 

10 At the end of her closing argument, the prosecutor 

stated, "And after, ladies and gentlemen, you consider all the 

evidence, it is the Commonwealth's belief you will come to one 

true and just verdict and that this defendant is guilty of all 

charges."
29

argument that the DNA samples could have been contaminated. See 

Commonwealth v. Miranda, 458 Mass. 100, 116 (2010), cert. 

denied, 132 S. Ct. 548 (2011). Similarly, the prosecutor's 

statement regarding "one true and just verdict" amounted to a 

fair comment on the strength of the Commonwealth's case and 

constituted appropriate advocacy. See Kozec, 399 Mass. at 516 

(prosecutor allowed to make forceful arguments for conviction 

based on evidence); Commonwealth v. Johnson, 374 Mass. 453, 459 

(1978) (prosecutor expected to argue for decision in favor of 

Commonwealth). We conclude that there was no error in the 

prosecutor's closing argument.

6. Motion for required findings of not guilty. At the 

close of the Commonwealth's case, defense counsel moved for 

required findings of not guilty as to all of the charges, which 

the judge denied. Defense counsel informed the judge that he 

did not intend to introduce any evidence, and he stated that he 

again would move for required findings of not guilty after he 

rested his case. The judge responded, "I'll preserve it."

The defendant contends on appeal that the evidence was not 

sufficient to convict him of any crime, and, therefore, the 

judge erred in denying his motion for required findings of not 

guilty. He asserts that because Fields, the only witness who 

placed the defendant at Busby's apartment, testified pursuant to 

a cooperation agreement, Fields had every incentive to minimize 
30

his own involvement in criminal activity. The defendant argues 

that the only evidence that directly linked him to any crime was 

questionable DNA evidence. He points out that Joy's testimony 

that his DNA was consistent with the major profile found on a 

knife at the scene was inconsistent with Busby's account of 

having stabbed one of the intruders in the leg with a sword. In 

the defendant's view, his motion should have been allowed. We 

disagree.

When reviewing the denial of a motion for a required 

finding of not guilty, we consider "whether, after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt." Commonwealth v. 

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. 

Virginia, 443 U.S. 307, 318-319 (1979). The inferences drawn by 

the jury from the evidence "need only be reasonable and possible 

and need not be necessary or inescapable." Commonwealth v. 

Longo, 402 Mass. 482, 487 (1988), quoting Commonwealth v. 

Casale, 381 Mass. 167, 173 (1980). Moreover, evidence of a 

defendant's guilt may be primarily or entirely circumstantial. 

See Corson v. Commonwealth, 428 Mass. 193, 197 (1998); 

Commonwealth v. Donovan, 395 Mass. 20, 25 (1985). "If, from the 

evidence, conflicting inferences are possible, it is for the 

jury to determine where the truth lies, for the weight and 
31

credibility of the evidence is wholly within their province." 

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 

215 (2007). See Commonwealth v. Merry, 453 Mass. 653, 662 

(2009) (existence of contradictory evidence not sufficient basis 

for granting motion for required finding of not guilty).

Here, the defendant has marshaled the evidence, or the 

purported lack thereof, in the light most favorable to himself. 

This is not the proper lens through which to view the evidence. 

The Commonwealth presented testimony from Fields that the 

defendant was actively involved in the planning and execution of 

the armed robbery and home invasion that resulted in the 

victim's murder and Busby's severe injuries. The Commonwealth 

also presented evidence showing that a man using the same alias 

that the defendant had used in the past, having the same date of 

birth as the defendant, and having a mother with the same name 

as the defendant's mother, was treated at the hospital on 

December 25, 2005, for a leg injury akin to the one that Busby 

had described inflicting on one of the intruders. In addition, 

the Commonwealth presented testimony suggesting that DNA 

evidence recovered from a knife and from the victim's T-shirt 

was consistent with that of the defendant. The evidence and the 

reasonable inferences that could be drawn therefrom were 

sufficient to warrant findings that the defendant was guilty of 

the crimes alleged in the indictments. The judge properly 
32

denied the defendant's motion for required findings of not 

guilty and left the assessment of the weight and credibility of 

the evidence for the jury.

7. Review pursuant to G. L. c. 278, § 33E. We have 

reviewed the entire record and the briefs on appeal and see no 

reason to order a new trial or reduce the degree of guilt.

Judgments affirmed.