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SJC-11627

COMMONWEALTH vs. ALEX SCESNY.

Worcester. March 6, 2015. - July 14, 2015.

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

Homicide. Rape. Evidence, Expert opinion, Photograph, 

Relevancy and materiality, Identification, Third-party 

culprit. Witness, Expert. Constitutional Law, 

Confrontation of witnesses. Practice, Criminal, Capital 

case, Confrontation of witnesses, Argument by prosecutor, 

Instructions to jury.

Indictments found and returned in the Superior Court 

Department on September 12, 2008.

The cases were tried before Richard T. Tucker, J.

Kenneth I. Seiger for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the 

Commonwealth.

BOTSFORD, J. In October of 1996 passersby discovered the

body of a woman, Theresa Stone (victim), by the side of a road 

in Fitchburg. Sixteen years later, in March of 2012, a 

Worcester County jury convicted the defendant, Alex Scesny, of 
2

murder in the first degree and aggravated rape in connection 

with her death.

1 Before us is the defendant's appeal from these

convictions. The defendant argues that (1) the evidence was 

insufficient to support the convictions; (2) the trial judge 

erred in admitting opinion testimony of a criminalist employed 

by the Commonwealth because the witness was not qualified to 

render the opinion stated; (3) the admission of an autopsy 

report prepared by a medical examiner who did not testify at 

trial, and of testimony of a substitute medical examiner, 

violated the defendant's constitutional right to confront 

witnesses; (4) it also was error to admit a witness's testimony, 

based on her examination of a photograph that itself should not 

have been admitted, that she recognized the defendant as one who 

had patronized a bar in which the victim was seen on the night 

of her death; (5) the prosecutor's closing argument was 

improper, impinging on the defendant's fundamental right to 

present a defense; and (6) the judge erred in declining to 

instruct the jury in accordance with the defendant's proposed 

instruction on third-party culprit evidence. We conclude that 

the evidence was insufficient to convict the defendant of 

aggravated rape, and reverse his conviction of this crime. We 

 

1 The jury found the defendant guilty of murder in the first 

degree under all three theories: deliberate premeditation, 

extreme atrocity or cruelty, and felony-murder.
3

affirm the defendant's conviction of murder in the first degree.2

Background. 1. Facts. The defendant challenges the 

sufficiency of the evidence, and therefore we summarize the 

facts the jury could have found in the light most favorable to 

the Commonwealth. Commonwealth v. Earle, 458 Mass. 341, 342 

(2010). We reserve certain facts for later discussion in 

connection with other issues raised.

On October 23, 1996, the victim and her daughter, Nashea

Falcon,3 spent the day running errands together and returned in 

the afternoon to the apartment where they were living in 

Fitchburg. At approximately 7 P.M. that evening, the victim 

left the apartment to buy some groceries for dinner. Shortly 

thereafter, she visited the Brau-Hoff, a bar on Main Street in 

Fitchburg. She arrived alone, stayed for about an hour or more, 

and talked to the bartender, Jessie Spencer. The victim left 

the bar alone and subsequently returned to the apartment with 

groceries. She told Nashea that she had received a ride home 

 

2 The reversal of the defendant's conviction of aggravated 

rape means the jury's determination that the defendant was 

guilty of felony-murder in the first degree cannot stand. 

Because the jury also found the defendant guilty under the other 

two theories of murder, however, and because we discern no error 

affecting those findings, the defendant's conviction of first 

degree murder is affirmed.

3 Nashea Falcon was formerly known as Nashea Stone. By the 

time of the trial in 2012, she had married Efrain Falcon, her 

boy friend at the time of the victim's death in 1996. We refer 

to her by her first name, Nashea, to avoid any confusion.
4

from a man in a black truck who was waiting for her outside, but 

that she did not want to go with him. Sometime between 9:30 and 

10:30 P.M., the victim left the apartment again and told Nashea 

she was going to "Work-a-Day," a temporary employment agency.4 

That was the last time Nashea saw the victim alive.

On October 25, 1996, responding to a telephone call 

regarding a body by the side of a road in Fitchburg, the police 

observed a white female lying on her left side with her face 

down on the ground, her pants and underwear pulled down to her 

knees, and her knees, thighs, buttocks, and lower abdominal area

exposed. There was a light coating of leaves over the body, and 

its lividity appeared consistent with the position in which it

was found. Police discovered what appeared to be a condom 

wrapper underneath or in the vicinity of the body. The body was 

identified as the victim's through fingerprint analysis. The 

cause of death was strangulation by ligature. The autopsy 

revealed that two of the victim's teeth had been broken off, 

that she had blood in her mouth, and that there were injuries to 

her eyelids, nose, neck, left shoulder, right clavicular region, 

right arm, right metacarpal, and right thigh.

During trial, the Commonwealth and the defendant stipulated 

 

4 According to Nashea, the victim had worked as a prostitute 

in the past, and when the victim left the apartment at 

approximately 9:30 P.M. on October 23, 1996, it would not have 

surprised her (Nashea) if the victim was "going to make some

money that night."
5

to the following:

"After [the victim's] body was discovered on Kinsman 

Road on October 25, 1996, blood samples and vaginal and 

anal swabs were taken as evidence. This material was sent 

to the Mass[achusetts] State Police crime [laboratory] for 

[deoxyribonucleic acid (DNA)] testing. These tests 

generated DNA profiles, which were made part of a DNA 

database. In 2008, for reasons completely unrelated to the 

investigation of [the victim's] death, [the defendant's] 

DNA profile was entered into that system. Sometime after 

that, a link was believed to be established between [the 

defendant's] DNA profile and biological evidence taken from 

[the victim]. At a later date, [the defendant] provided 

another DNA sample for further comparison purposes."5

The rectal swab taken from the victim contained sperm cells, and 

the DNA profile generated from the sperm matched the DNA profile 

for the defendant.6 The probability of a randomly selected,

unrelated individual having a DNA profile matching the major 

profile obtained from the rectal swab was one in 13.2 

quadrillion of the Caucasian population.7

Upon examination of the victim's body, a number of small,

red-brown stains were noted on the victim's exposed skin and 

 

5 The trial judge read this stipulation to the jury during 

the trial.

6 The rectal swab generated two deoxyribonucleic acid (DNA)

profiles, a sperm fraction and a nonsperm fraction. The profile 

generated for the sperm fraction was a mixture of DNA, meaning 

that more than one person contributed DNA to that fraction. The 

major profile for that fraction matched the DNA profile for the 

defendant. The minor profile for the sperm fraction contained 

some cellular material "carr[ied] over" from the nonsperm 

fraction, and it was consistent with the victim's DNA.

7 The defendant is Caucasian.
6

clothing. A screening test for the presence of blood was 

performed on stains from the victim's lower pant leg and

sneaker, as well as her right hip and right thigh-left knee 

area. The stains tested positive indicating that blood may be 

present. The stain on the thigh-knee area was submitted for 

further testing and a confirmatory test for human blood was also 

positive.8

DNA profiles generated from the stains on the sneaker, hip, 

and thigh-knee area indicated a mixture of DNA from more than 

one source. The defendant matched the major profile in the DNA 

mixture on the hip. The probability of a randomly selected 

unrelated individual having a DNA profile matching this stain 

was approximately one in 1.366 billion of the Caucasian 

population. The defendant also was included as a potential 

contributor to the DNA mixtures on the sneaker and thigh-knee 

area. The probability of a randomly selected unrelated 

individual having contributed DNA to the mixture was 

approximately one in sixty-one of the Caucasian population for 

each of these two stains.

Male-specific DNA testing also was performed on three areas 

of the victim's underwear. In the first area, a partial male 

DNA profile was generated that matched the defendant's; the 

 

8 The other stains were too small for confirmatory testing.
7

probability that a randomly selected individual would match the 

profile was one in two of the male population. In the second 

area tested, a partial male DNA profile was generated that did 

not match the defendant's profile. In the third area tested, no 

male DNA was found. A screening test for the presence of blood 

on three red-brown stains found on the underwear was positive.9 

No seminal fluid was found to be present on the victim's 

underwear, which suggested that the victim had not pulled up her

underwear and pants after the semen in her rectum had been 

deposited.10

Some of the red-brown bloodstains11 on the victim's body and 

 

9 A screening test for blood on a fourth red-brown stain on 

the underwear was negative.

10 Debra McKillop, a criminalist who had been employed by 

the Commonwealth at the time of the victim's death, testified 

that if a liquid such as seminal fluid is deposited in an 

orifice, such as the vaginal, anal, or other cavity, it is a 

common occurrence, when cloth or other material is placed over 

the orifice, that liquid will be absorbed into the material; and 

that if the victim had pulled up her underwear and pants 

following deposit of semen or sperm in her rectum, some drainage 

or transference onto her underwear could be expected. Doctor

Henry Nields, a physician and the substitute medical examiner, 

however, testified that drainage of seminal fluid from the anal 

opening onto underwear after anal sex may or may not be present. 

The defendant challenges the admission of McKillop's opinion 

testimony on the ground that she was not professionally 

qualified to give it. The defendant's argument is discussed

infra.

11 As suggested in the text, the evidence concerning the 

red-brown stains would permit the jury to find that they were 

bloodstains and, in particular, the defendant's bloodstains.
8

clothing appeared to have been deposited at an angle, suggesting 

that the blood causing the stains had hit the victim's body at 

an angle and that some type of action or force had been

involved. The stains on the victim's skin did not appear to be 

disturbed, meaning they had been deposited on the body and had 

dried in the condition in which the investigating police and 

criminalists found them. The stains' appearance again suggested 

that the victim had not pulled up her pants after the stains

were deposited.12

Jessie Spencer worked as a bartender at the Brau-Hoff bar 

in Fitchburg on the night of October 23, 1996, the night of the 

victim's disappearance. In 2008, police showed Spencer several 

photographs and asked her whether she recognized any of the 

persons depicted in them as customers of the bar. She was shown 

a photograph of the defendant and was "pretty certain" she 

recognized him. Over-all, four of the six photographs she was 

shown were of men she recognized from the bar.

The defense conceded at trial that the defendant had had 

sexual intercourse with the victim, but argued that the 

 

12 Testimony was presented indicating that if the stains had 

been wet when deposited on the victim, and the victim 

subsequently had pulled up her pants, some sort of interruption 

or disturbance of the stain would be expected. If the stains on 

the victim's body had been dry and the victim then pulled up her 

pants, any friction or contact with the clothing could have 

dislodged the stain causing it to fall free from the skin.
9

intercourse was consensual. He stressed that the stains on the 

victim's hip, knee, and sneaker contained a mixture of DNA from 

more than one person,13 and argued that any potential 

contribution by him to the DNA in the stains was not necessarily 

blood, but could have been some other bodily substance 

transferred onto the victim's body during their sexual 

encounter.

The defendant also presented evidence at trial suggesting 

that two other men may have been responsible for the victim's 

death: Everett Carlson and James Webber, who was the victim's 

former husband and father of Nashea. Both men were excluded as 

sources of the sperm on the rectal swab taken from the victim,

as well as the DNA mixture in the stains on the victim's sneaker 

and right thigh-left knee; the major male DNA profile in the 

stain on the victim's right hip also did not match either man.14 

Webber was excluded as a source of the partial male DNA profile 

generated from the stains on the first area tested from the 

victim's underwear, but Carlson was included, meaning his DNA 

profile matched the partial male DNA profile identified in that 

 

13 The victim was included as a potential contributor to the 

DNA mixture on the sneaker; the DNA mixtures from the hip and 

knee yielded inconclusive results with respect to the victim.

14 The minor profile yielded inconclusive or insufficient 

results for comparison.
10

area of the underwear.

15 Both Webber and Carlson were excluded 

as sources of the male DNA detected in the second area tested 

from the victim's underwear.

16

2. Procedural history. In 2008, the defendant was 

indicted for the murder and aggravated rape of the victim. As 

indicated, in March of 2012 a jury convicted the defendant of 

murder in the first degree on the theories of deliberate 

premeditation, extreme atrocity or cruelty, and felony-murder;

he also was convicted of aggravated rape. The defendant filed a 

timely appeal of his convictions, which we consider here.

Discussion. 1. Sufficiency of the evidence. The 

defendant claims there was insufficient evidence to prove that 

he was the perpetrator of the victim's murder and that he 

committed aggravated rape. He does not dispute that the DNA 

from the rectal swab taken from the victim established that he 

had intercourse with her, but asserts there was no evidence to 

prove that the sexual interaction was not consensual. He also 

contends that the additional forensic evidence was ambiguous, 

 

15 The probability that a randomly selected individual would 

match the partial male profile identified was one in two of the 

male population; as previously indicated, the defendant's DNA 

was also included as a possible source.

16 The defendant was excluded as a possible source of the 

male DNA detected in this area as well, indicating that a male 

other than the defendant, Carlson, or Webber contributed this 

stain.
11

inconclusive, speculative, and ultimately insufficient to prove 

that he murdered the victim;

17 and that apart from this forensic 

evidence, the Commonwealth provided no evidence connecting him 

to the scene or to the murder. To support this argument, he 

notes the evidence that the victim was a prostitute and 

therefore had consensual sex with men, and further that the 

autopsy report revealed the victim's external genitalia and anus 

were normal -- that is, without any sign of injury or trauma.

With respect to the charge of murder, the defendant's claim 

fails. The trial evidence considered in the light most 

favorable to the Commonwealth would allow the jury reasonably to 

find that the defendant had sex with the victim (as he 

conceded), at or near the time of her death; the red-brown 

stains on the victim's body and clothes were or certainly

included the defendant's blood; the victim had not pulled up her 

underwear and pants after having anal intercourse with the 

defendant or after the defendant's blood was deposited on her 

 

17 In particular, the defendant argues that DNA testing done 

on the stains from the victim's body and clothing did not 

identify the bodily source of the substance creating the stains, 

and thus his potential contribution to the DNA mixtures was not 

necessarily blood but could have been some other biological 

fluid -- e.g., saliva or semen -- transferred to the victim 

during intercourse. He also points to the fact that the DNA 

found on the victim's underwear could have matched half of the 

male population, and that the DNA testing performed actually 

established that a fourth, unidentified man contributed sperm 

DNA to these underwear stains.
12

body; the victim died from strangulation by ligature; she also

suffered significant injuries to her face as well as to her arm 

and thigh; and she could have encountered the defendant at the 

Brau-Hoff bar on the evening or night of October 23, 1996.

Based on this evidence, the jury reasonably could infer 

that the defendant had sex with the victim and then strangled 

her. See Commonwealth v. Perkins, 450 Mass. 834, 837-838 (2008) 

("Because death had occurred while [the victim] was lying on her 

back, and because no sperm cells were found on the crotch area 

of her panties, death probably occurred after intercourse and 

before [the victim] could pull up her clothes such that her 

panties would collect sperm cells draining from her body"). 

This is a sequence of events that supports a determination that 

the defendant acted with deliberate premeditation. See 

Commonwealth v. Bregoli, 431 Mass. 265, 269-270 (2000) 

("evidence of death by strangulation supported an inference that 

the victim's death was not instantaneous, but the result of 

pressure applied to her neck until she lost consciousness," 

which warranted finding that defendant "acted with malice and 

deliberate premeditation"). Moreover, the extent and severity 

of the victim's injuries permitted a finding of extreme atrocity 

or cruelty. See Commonwealth v. Scott, 470 Mass. 320, 321, 324-

325 (2014) (evidence that victim was raped and strangled, with 

significant injuries to head, skull, and face, supported jury's 
13

guilty verdict of murder in first degree under theory of extreme 

atrocity or cruelty [as well as other two theories of murder]). 

With respect to the murder charge, therefore, the Latimore test 

was met. See Commonwealth v. Latimore, 378 Mass. 671, 677 

(1979) (considering evidence in light most favorable to 

Commonwealth, we ask whether "any rational trier of fact could 

have found the essential elements of the crime beyond a 

reasonable doubt").

We agree with the defendant, however, that the evidence 

presented was not sufficient to support his conviction of 

aggravated rape. This court has established that "[t]he essence 

of the crime of rape, whether aggravated or unaggravated, is 

sexual intercourse with another compelled by force and against 

the victim's will or compelled by threat of bodily injury." 

Commonwealth v. McCourt, 438 Mass. 486, 494-495 (2003). 

"Absence of consent is an essential element of the crime of 

rape, whether aggravated or unaggravated." Commonwealth v. 

Cheremond, 461 Mass. 397, 408 (2012). Here, the evidence from 

which the jury could reasonably infer lack of consent was itself 

lacking. Although the victim was found with her pants and 

underwear pulled down to her knees, the clothing was intact with 

no evidence of rips or tears. Contrast, e.g., Commonwealth v. 

Tavares, 27 Mass. App. Ct. 637, 642 (1989), S.C., 57 Mass. App. 

Ct. 1111 (2003) (evidence was sufficient to support conviction 
14

of aggravated rape where, inter alia, victim "woke up without 

her pants and her blouse and bra were torn"). In addition, the 

autopsy report established that the victim's external genitalia 

and anus were normal, and no injuries were noted in these areas.

Contrast, e.g., Commonwealth v. Miller, 435 Mass. 274, 278 

(2001) (evidence that victim's thighs were bruised and her 

vaginal opening had been injured, together with other evidence, 

was sufficient to prove beyond reasonable doubt that defendant 

had raped victim). There also was evidence that the victim had 

worked as a prostitute in the past; further, the victim's 

daughter indicated that she would not be surprised if the victim 

was "going to make some money" the night she was murdered, and 

the victim's body was found about one-half mile to one mile from 

an area known to be a place that prostitutes frequented with 

their customers.

The Commonwealth's case against the defendant was entirely 

circumstantial. Although the victim ultimately suffered severe 

injuries that, the jury could infer, were inflicted in

connection with her murder, there was no evidence favoring the 

inference that the defendant raped the victim before killing her 

over the inference that he had consensual sex with the victim 

and then killed her. "When the evidence tends equally to 

sustain either of two inconsistent propositions, neither of them 

can be said to have been established by legitimate proof." 
15

Commonwealth v. Cannon, 449 Mass. 462, 467 (2007), quoting 

Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). Accordingly, 

because the evidence was insufficient to permit a finding of 

lack of consent beyond a reasonable doubt, the defendant's 

conviction of aggravated rape must be reversed, and the jury's 

finding that the defendant was guilty of murder in the first 

degree on a theory of felony-murder must be set aside.

18 

2. Expert testimony. The defendant argues that the trial 

judge abused his discretion in admitting the opinion testimony 

of Debra McKillop, a criminalist with the State police crime 

laboratory (crime lab) at the time the victim's killing was 

initially investigated in 1996. At trial, the defendant 

objected to two portions of McKillop's testimony: (1) that,

based on her experience, she would have expected there to be 

some drainage located on the victim's underwear if the victim 

had pulled up her underwear following the deposit of semen in 

her rectum; and (2) that she would expect to see some 

 

18 This conclusion follows from the fact that aggravated 

rape was the sole felony put before the jury as a possible 

predicate felony for felony-murder in the first degree. The 

conclusion, however, does not affect the defendant's murder 

conviction because the jury also convicted the defendant on 

theories of deliberate premeditation and extreme atrocity or 

cruelty, and the evidence was sufficient to support a conviction 

on these theories. See Commonwealth v. Evans, 469 Mass. 834, 

842-843 (2014), and cases cited (where jury convicts defendant 

of murder in first degree under more than one theory, "evidence 

supporting either theory would suffice to affirm the verdict").
16

interruption or disturbance of the stains on the victim's body, 

if the victim had pulled up her pants after the stains had been

deposited.19 The defendant argues that McKillop's opinion 

testimony in these areas exceeded the scope of her 

qualifications and failed to meet the foundational requirements 

for expert testimony. He further claims that because this 

testimony was a pivotal piece of the Commonwealth's case, its 

admission was highly prejudicial.20

"A trial judge has wide discretion to qualify an expert 

witness and to decide whether the witness's testimony should be 

admitted." Commonwealth v. Frangipane, 433 Mass. 527, 533 

(2001). "The admission of expert testimony will be reversed 

only where it constitutes an abuse of discretion or other error 

of law." Id. See Commonwealth v. Avila, 454 Mass. 744, 764 

(2009) (judge's decision to admit testimony "will not be upset 

on appeal if any reasonable basis appears for it" [citation 

 

19 The defendant's trial counsel did not state the specific 

ground for his objections, but the defendant argues here that it 

was apparent from the context that the objection was to the lack 

of adequate foundation for McKillop's opinion testimony. 

Nothing in our resolution of this issue turns on the point, and 

we assume for argument that the defendant is correct.

20 The Commonwealth argues that defense counsel raised only 

general objections to this testimony at trial and thus did not 

preserve the claim, so that the correct standard of review is 

whether the error, if any, created a substantial likelihood of a 

miscarriage of justice. Because we determine there was no error 

in admitting the contested testimony, we need not resolve the 

standard of review issue.
17

omitted]). "In qualifying an expert witness, the question for 

judicial decision is whether the witness has sufficient skill, 

knowledge, and experience in the area of his training to aid a 

jury." Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990).

McKillop testified at trial that she was employed at the

crime lab from 1986 until her retirement in 2007. After one 

year working as a criminalist in the toxicology unit, she 

transferred to the criminalistics section where her experience 

entailed going to crime scenes to collect evidence as well as 

working on evidence submitted to the crime lab. The cases she 

worked on included fatal or nonfatal shootings, beatings, 

stabbings, and sexual assaults, and involved a variety of 

evidence including identification of body fluids, including 

blood, saliva, and semen, as well as collection of trace 

evidence, such as hair, fibers, paint, glass, and gunshot 

residue. Later in her career McKillop was a supervisor in the 

criminalistics unit for approximately nine years, and supervised 

both the criminalistics and DNA units of the crime lab in the 

two years before she retired. At the time she testified at 

trial in 2012, McKillop was the forensic manager of the crime 

laboratory of a county sheriff's office in California, where she 

was responsible for overseeing the crime scene response unit, 

the biology or DNA unit, the firearms unit, and the latent print 

unit. She also has bachelor's degrees in chemistry and 
18

environmental studies from the University of California in Santa 

Barbara.

McKillop's challenged opinion testimony concerning what she 

would expect to see if the victim had pulled up her underwear 

and pants following intercourse and following the deposit of the 

red-brown stains on her body clearly was based on this extensive 

experience.

21 The judge did not abuse his discretion in 

admitting this testimony. See Commonwealth v. Rice, 441 Mass. 

291, 297-299 (2004) (no abuse of discretion in permitting State 

police chemist employed at crime lab to testify to opinion 

concerning how long sperm may be found following ejaculation, 

based on training and experience); Frangipane, 433 Mass. at 

533-535 (where social worker witness had extensive training, 

education, and experience interviewing and treating sexually 

abused children, judge had discretion to allow witness to opine 

concerning dissociation and recovered memory and fact that 

 

21 McKillop was asked explicitly whether, "in [her]

experience," she would expect to see some sort of drainage or 

transference of seminal fluid to the victim's underwear. 

McKillop responded that drainage is "a common occurrence" and 

stated, "in my experience, when examining cases in the 

laboratory, we will see a consistency of having a stain on the 

garment." Similarly, McKillop was asked, "based on that same 

training and experience," whether the stains on the victim's 

body appeared to be disturbed, and it was evident from the 

context that McKillop's testimony on this topic was based on her 

prior work as a criminalist; the defendant is not correct that 

McKillop did, or was required to, base her opinions on an expert 

level of knowledge of anatomy or physiology.
19

victims of trauma may experience them; witness was not required 

to be medical doctor). Compare id. at 535-536 (error to permit 

social worker witness to testify about how trauma victim stores, 

retrieves, or dissociates traumatic memory because opinions

concerned physical functioning of brain; subject matter area was 

proper for medical doctor, not social worker).22

There was no abuse of discretion or other error in the 

trial judge's decision to admit McKillop's testimony.23

3. Substitute medical examiner. The medical examiner who 

performed the autopsy on the victim retired approximately twelve 

 

22 In contrast to the substitute medical examiner who 

testified in this case regarding the anatomy of the rectum and 

the sphincter muscle, McKillop did not testify to the physical

functioning of the body; her testimony was limited to opinions 

based on her prior observations and experience as a criminalist. 

To the extent that, as the defendant claims, the opinions of the 

substitute medical examiner and McKillop contradicted each 

other, such contradiction goes to the weight of the testimony, 

not its admissibility. See Commonwealth v. Rice, 441 Mass. 291, 

299 (2004).

23 It bears noting that in addition to McKillop, Beth 

Saucier Goodspeed, a chemist employed at the State police crime

laboratory, testified at trial that if the victim had pulled up 

her pants following the deposit of semen or sperm in her, 

Goodspeed would have expected some drainage onto the victim's 

underwear. It is also the case that the topic of semen draining 

out onto underwear has been addressed by State police 

criminalists in other cases. See, e.g., Commonwealth v. Scott, 

470 Mass. 320, 323 (2014) (State police criminologist testified 

"if somebody is up walking around, . . . semen would be draining 

out of her and would be on the underwear if she were wearing 

it," and pattern of stains found on victim's skirt was 

"consistent with drainage if a person were laying [sic] 

horizontal[ly]").
20

years before the defendant's trial took place. A substitute 

medical examiner, Dr. Henry Nields, testified at trial regarding 

certain findings in the autopsy report: that the victim's teeth 

were broken off; that there was blood in the victim's mouth; and 

that there were injuries to the victim's eyelids, nose, neck, 

shoulder, clavicular region, arm, and thigh. He also testified 

to his opinion as to the cause of the victim's death. The 

defendant did not object to any of Nields's testimony. In 

addition, the autopsy report and photographs from the autopsy 

were introduced in evidence without objection. The defendant 

now argues that admission of the autopsy report and the

substitute medical examiner's testimony about the underlying 

findings in the report violated the defendant's constitutional 

right to confrontation.24 Because there was no objection to 

admission of the report or testimony at trial, we review for a 

substantial likelihood of a miscarriage of justice. See

Commonwealth v. Emeny, 463 Mass. 138, 145 (2012).

An autopsy report prepared by a medical examiner who is 

unable to testify constitutes "inadmissible hearsay whose 

admission violate[s] the defendant's right of confrontation 

under the Sixth Amendment to the United States Constitution"; 

 

24 The defendant correctly does not challenge the substitute 

medical examiner's opinion testimony as to the cause of the 

victim's death. See Commonwealth v. Emeny, 463 Mass. 138, 145 

(2012).
21

and a substitute medical examiner is not permitted to testify 

about the underlying facts and findings of the report on direct 

examination. Id. at 145, quoting Commonwealth v. Walker, 460 

Mass. 590, 594 n.6 (2011). See Commonwealth v. Phim, 462 Mass. 

470, 479 (2012). Thus, neither the report nor Nields's

testimony about the findings in the report should have been 

admitted.

The defendant argues that the admission of this evidence 

created a substantial likelihood of miscarriage of justice 

because the Commonwealth relied on the evidence about the 

victim's injuries to prove that the defendant inflicted them and 

then bled on the victim. The defendant claims this was critical 

evidence because there was no other evidence connecting the 

defendant to the injuries, and the over-all evidence of guilt 

was not so overwhelming as to nullify its effect. We disagree

for three reasons.

First, the defendant used the evidence relating to the 

autopsy findings and Nields's testimony in particular to help

build his defense. Specifically, on cross-examination, the 

defendant elicited testimony from Nields about his observations 

that there were no visible injuries to the victim's genitals or 

anus. The defendant then used this testimony to support his 

claim that the evidence was insufficient to prove the 

intercourse between the victim and defendant was consensual, and 
22

defense counsel reiterated the point in his closing argument. 

See Commonwealth v. McCowen, 458 Mass. 461, 482 (2010) ("There 

can be no substantial likelihood of a miscarriage of justice 

where the defendant fails to object to the admission of 

testimonial hearsay and then relies on that erroneously admitted 

hearsay to challenge the prosecution's theory of the case"). 

See also Commonwealth v. Nardi, 452 Mass. 379, 395-396 (2008)

(no substantial likelihood of miscarriage of justice where 

autopsy findings were admitted without objection and defense 

expert "made use of and referenced those findings in his 

testimony").

Second, Nields's testimony about the findings in the 

autopsy report is cumulative of the injuries depicted in the 

properly admitted autopsy photographs,25 and of Nields's

testimony regarding his review of these photographs. See 

Commonwealth v. Rogers, 459 Mass. 249, 265-266, cert. denied, 

132 S. Ct. 813 (2011) (no error in admission of testimony based 

on autopsy photographs that constituted independently admissible 

evidence); McCowen, 458 Mass. at 481 n.17 ("Dr. Nields, using 

the photographs admitted in evidence, properly testified to the 

location and nature of the victim's injuries").

Third, the autopsy report and Nields's testimony about the 

 

25 The photographs were admitted through a State police 

trooper who attended the autopsy.
23

victim's injuries did not relate to an issue contested at trial. 

The defendant challenged his identification as the perpetrator 

of the injuries, but did not dispute the nature of the injuries 

the victim suffered. Rogers, supra at 266 (testimony by 

substitute medical examiner about length and depth of stab wound 

was not relevant to any contested issue when defense was lack of 

identification of defendant as stabber).26

In sum, no substantial likelihood of a miscarriage of 

justice arose from the erroneous admission of the autopsy report 

and Nields's autopsy-related testimony. The defendant's 

argument fails.

4. Evidence that the defendant patronized the Brau-Hoff

bar. Jessie Spencer testified at trial that she was "pretty 

certain" the defendant at some (undefined) point had been a 

patron of the bar, based on her examination of a photograph of 

the defendant the police had shown her in 2008. The defendant 

argues that the testimony was irrelevant because Spencer was 

only "pretty certain" the defendant had been a customer at the 

bar, and there was no testimony about when. The defendant 

 

26 Contrary to the defendant's suggestion, the fact that the 

victim suffered certain injuries did not indicate that the 

defendant had inflicted them. In terms of identifying the 

defendant as the person who caused the victim's injuries, the 

DNA evidence was the relevant evidence. The autopsy report and 

Nields's testimony about the autopsy findings did not relate to 

DNA evidence.
24

alleges that the erroneous admission of this evidence resulted 

in the unwarranted inference by the jury that both the victim 

and defendant were present at the bar on the night of the 

homicide. There was no error.

"Evidence is relevant if it has a rational tendency to 

prove a material issue." Commonwealth v. Bresilla, 470 Mass. 

422, 436 (2015), quoting Commonwealth v. Dunn, 407 Mass. 798, 

807 (1990). To be relevant, "[e]vidence need not establish 

directly the proposition sought; it must only provide a link in 

the chain of proof." Commonwealth v. Gordon, 407 Mass. 340, 351 

(1990), quoting Commonwealth v. Tobin, 392 Mass. 604, 613 

(1984). The trial judge has "substantial discretion in deciding 

whether evidence is relevant, and whether the prejudicial 

implications of such evidence outweigh its probative value." 

Commonwealth v. Pina, 430 Mass. 66, 78 (1999), quoting Tobin, 

supra. A judge's determination will not be overturned unless 

palpable error is found. Bresilla, supra.

The testimony by Spencer that she was "pretty certain" the 

defendant had been a patron at the bar was relevant and properly 

admitted. Although the information does not establish that the 

defendant was at the bar on the night the victim was murdered, 

it has a rational tendency to prove a link, however slight, 

between the defendant and victim, and makes the fact that the 

defendant encountered the victim on the night of her murder more 
25

probable than it would be without the evidence. See Mass. G. 

Evid. § 401 (2014). The absence of any time frame for when the 

defendant was a patron of the bar certainly decreases the 

probative value of the testimony, but the defendant has failed 

to show that the evidence was "unduly" prejudicial, or more 

prejudicial than probative. See Commonwealth v. Arroyo, 442 

Mass. 135, 144 (2004).27

5. Prosecutor's closing argument. The defendant contends 

that the prosecutor's closing argument was improper in a number 

of respects: the prosecutor unfairly disparaged the defendant's 

constitutional right to present a third-party culprit defense, 

misstated the law, engaged in improper vouching of evidence, and 

misstated the evidence. The combined effect of the 

improprieties, he argues, requires reversal and a new trial.

There is no question that the prosecutor's argument was 

flawed. Before reaching the principal focus of his attack, the 

defendant's third-party culprit theory, the prosecutor told the 

jury:

 

27 The defendant also argues that introduction of his 

photograph in evidence following Jessie Spencer's testimony

about it was prejudicial; he claims the photograph was similar 

to a mugshot, and conveyed to the jury that the defendant had a 

criminal history. The defendant's trial counsel specifically 

disagreed with this assessment in declining the judge's offer to 

provide a limiting instruction. An examination of the 

photograph, which is in the record, persuades us that the 

defendant's argument on this point is without merit. See 

Commonwealth v. Cruz, 445 Mass. 589, 594 (2005).
26

"I'm privileged, and moreover proud to represent the 

citizens of the Commonwealth -- that's who I represent. 

This is not a case about the prosecutor against [the 

defendant]. This is a case about the citizens and [the 

defendant]. Sometimes, that's easy to forget; but you 

should know that the citizens of the Commonwealth, while 

defendants are cloaked in certain fundamental 

constitutional rights, and that's something we all embrace, 

the citizens of the Commonwealth are equally entitled to a 

fair trial. I ask you to hold onto that fundamental 

principle as you listen, and deliberate later on."

This argument is problematic in two respects. First, the 

jurors, by definition, were themselves all "citizens of the 

Commonwealth," and the prosecutor's characterization of his role 

as representing the "citizens" ran the risk of suggesting that 

the prosecutor was representing the jurors-as-citizens against 

the defendant, and in that way misrepresenting or at least 

confusing the jurors' actual role as neutral fact finders 

charged with weighing all the evidence and determining whether 

the Commonwealth had proved the defendant's guilt beyond a 

reasonable doubt. Second and more fundamentally, the

"Commonwealth" in a criminal case is not a shorthand way of 

referring to individual citizens, and is not just the name of 

the party on the other side of the "versus" from the defendant;

the "Commonwealth" plays a different role, and so does its 

attorney. Although the Commonwealth is entitled to a fair 

trial, and although the prosecutor has the responsibility to 

argue the Commonwealth's case forcefully, "[n]evertheless, the 

fact remains that the prosecuting attorney 'is the 
27

representative not of an ordinary party to a controversy, but of 

a sovereignty whose obligation to govern impartially is as 

compelling as its obligation to govern at all; and whose 

interest, therefore, in a criminal prosecution is not that it 

shall win a case, but that justice shall be done.'" 

Commonwealth v. Shelley, 374 Mass. 466, 472 (1978), quoting 

Berger v. United States, 295 U.S. 78, 88 (1935). The 

prosecutor's characterization of his role in this case as 

representing "the citizens" of the Commonwealth against the 

defendant, and the prosecutor's emphasis on the rights of "the 

citizens," was at best inappropriate, and far better left 

unsaid.

The majority of the prosecutor's argument was devoted to 

attacking the defendant's third-party culprit defense. In his 

closing, particularly near its beginning, the prosecutor 

repeatedly sounded the theme that the defense was seeking to 

mislead, confuse, and "prejudice" the jury with the presentation 

of this defense by presenting information that "lack[ed] 

materiality and relevance" -- information that should not even 

be called "evidence" because it was so lacking in these 

qualities.28

 

28 For example, immediately after asking the jury to "hold 

onto" two fundamental "legal principles" -- namely, that the 

"citizens of the Commonwealth are equally entitled to a fair 

trial" and that "the Commonwealth does not have the burden of 
28

 

proving that someone else did not commit the crime," the 

prosecutor argued:

"It's important . . . [to keep these two principles in 

mind] because you've been exposed to information. I will 

not honor it by calling it 'evidence,' because evidence is 

presumed to have relevance and materiality. You've been 

exposed to information that has been advanced in an effort 

to do what real evidence is never supposed to do. It's not 

supposed to invite speculation. It's not supposed to 

divert your attention from the defendant who is on trial. 

It's not supposed to prejudice and confuse the fact finder 

-- that's you, the jury. And yet, I say with a high level 

of confidence, on behalf of the citizens, that that is 

exactly what the effort has been here.

"It's been regrettable that the Commonwealth must 

respond to information that lacks materiality and 

relevance; but given the course of this trial, the 

Commonwealth is compelled to do so. . . . [W]hy do I say 

that this theory that's been advanced, this information 

that's been advanced, lacks materiality and relevance? 

It's because based on what you've heard . . . there is no 

link -- no link, no discernible link -- between James 

Webber and the murder of [the victim], or between Everett 

Carlson and the murder of [the victim]. Nothing you've 

heard or seen in this court room suggests that at all. In 

that sense, the Commonwealth asks you to think of James 

Webber and Everett Carlson as a couple of bowls of 

spaghetti that have been hurled against the wall in the 

desperate hope that some of it sticks.

". . .

"What about the information you've heard about [Webber and 

Carlson] is not speculative, meant to divert your 

attention, and meant to confuse you?

". . .

"How can you not conclude . . . that this information is 

simply an invitation to you to speculate, to engage in rank 

speculation, or meant to divert your attention or to 

confuse you?

". . .
29

"The opportunity to present third-party culprit evidence is 

of constitutional dimension, . . . because it is rooted in the 

right of criminal defendants to a meaningful opportunity to 

present a complete defense" (quotations and citations omitted). 

Scott, 470 Mass. at 327. Pursuant to the trial judge's rulings,

the defendant here was fully entitled to present evidence and 

argue his third-party culprit defense centered on James Webber 

and Everett Carlson. Although the prosecutor was permitted to 

comment on the defense strategy and tactics, and was not beyond 

bounds in arguing that the strategy was intended to confuse, 

see, e.g., Commonwealth v. Raposa, 440 Mass. 684, 697 (2004), 

what may be permissible if stated once may become less so 

through constant repetition. Although the prosecutor did not 

describe the third-party defense as a "sham," see Commonwealth

v. Lewis, 465 Mass. 119, 130 (2013), and although he did not say 

that the defendant or his counsel were "intentionally 

misleading" the jury, see Commonwealth v. Fernandes, 436 Mass. 

671, 674 (2002), his repeated characterization of the defense 

evidence as irrelevant and immaterial "information," unworthy of 

 

"Do you get the impression . . . based on all of that 

inconsistent evidence, do you get the impression of what I 

suggested to you in the beginning -- the attempt to confuse 

you, and to confuse the issue? This is stuff that should 

never have been heard by the jury. It's irrelevant, and 

it's immaterial."
30

even being called "evidence"; his complaint that it was 

"unfortunate" the Commonwealth even had to respond to it; and 

his several rhetorical questions asking about the misleading and 

speculative nature of the third-party culprit defense (see note 

28, supra) came close. These comments and questions both 

misstated the law -- the judge had specifically allowed the 

third-party evidence to be introduced as "evidence" -- and 

verged on suggesting that the entire third-party culprit defense

was improper and should not have been presented.

29

"In determining whether an error in closing argument 

requires reversal, we consider whether defense counsel made a 

timely objection; whether the judge's instructions mitigated the 

error; whether the error was central to the issues at trial or 

concerned only collateral matters; whether the jury would be 

able to sort out any excessive claims or hyperbole; and whether 

the Commonwealth's case was so strong that the error would cause 

no prejudice." Scott, 470 Mass. at 335, quoting Commonwealth v. 

 

29 The Massachusetts Guide to Evidence (2015) contains a 

section setting out in comprehensive fashion the principles 

governing proper and improper opening statements and closing 

arguments, and provides citations to relevant decisions of this 

court and the Appeals Court on these subjects. See Mass. G. 

Evid. § 1113 (2015). Particularly in light of the availability 

of this resource, going forward, there should be even less 

excuse than at present for prosecutors as well as defense 

counsel to stray beyond the bounds of proper argument.
31

Harris, 443 Mass. 714, 732 (2005).30 Here, the first three 

factors weigh in the defendant's favor in whole or in part. On 

the first, the defense counsel objected both during and after 

the Commonwealth's closing.

31 As for the second factor, 

mitigation of the prosecutorial error by the judge's 

instruction, the judge overruled the defense counsel's objection 

 

30 See Commonwealth v. Lewis, 465 Mass. 119, 130 (2013):

"When determining whether error in a prosecutor's 

closing argument requires 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. . . . 

With respect to the fourth factor, we consider whether the 

jury, to whom we ascribe a certain level of sophistication, 

would be able to sort out a prosecutor's excessive claims; 

and we look to see if the Commonwealth's case was 

overwhelming" (citations and quotations omitted).

31 The defendant's first objection followed the prosecutor's 

suggestion, quoted in note 28, supra, to the effect that the 

defense was seeking to confuse the jury with the third-party 

culprit evidence and that such evidence should not have been

heard by the jury.

The second objection by the defense, lodged at the end of 

the prosecutor's closing, was two-fold. The defendant's trial 

counsel objected to the prosecutor's remarks suggesting the 

defense had "compromised" the Commonwealth's right to a fair 

trial by raising a third-party culprit defense. Counsel also 

objected to the prosecutor's statements suggesting that the 

defense had presented evidence that the jury should not have 

heard. He asked for curative instructions with respect to both 

sets of remarks by the prosecutor, a request the judge granted 

in part. We discuss the judge's curative instruction in the 

text, infra.
32

during the closing but, thereafter, the judge did give one 

limiting instruction after the prosecutor completed his closing, 

in partial response to the defendant's objections.

32 The 

instruction did help mitigate the prosecutor's improper 

misstatements belittling and mischaracterizing the evidence 

relied on by the defendant for his defense -- although it would 

have been appropriate, as the defendant had requested, to 

explain more directly the prosecutor's overreaching, and in 

particular to have addressed specifically the prosecutor's 

repeated assertions that the third-party culprit evidence was 

"irrelevant" and "immaterial."

33 Finally, on the third factor, 

 

32 The judge told the jury:

"It was suggested to you that certain testimony given 

in this court should only be considered by you as 

'information,' and not as evidence in this trial. I've 

told you before, and I'm going to instruct you [hereafter], 

that sworn testimony given in this case is evidence, and 

you shall consider as evidence.

"You were also told that there was evidence that you 

never should have heard in this case, that you as the jury 

should not have heard in this case, and that it was 

irrelevant evidence. I've told you before that I rule on 

the admissibility of evidence, and anything that you heard 

in this case, I have ruled on -- in consultation with 

counsel, many times. I have ruled that the evidence that 

you heard is admissible; and that's the end of that story. 

You shall consider it as evidence."

33 The judge declined to act on defense counsel's other 

request, that the judge explain to the jury that the defendant 

was entitled to raise a defense concerning the possibility of 

third-party culprits and his doing so could not be taken as 

interfering with the Commonwealth's right to a fair trial. A 
33

the argument errors of the prosecutor related in whole or in 

part to the third-party culprit defense, which was the heart of 

the defense.

The final factor we consider concerns the strength of the 

Commonwealth's case: does the strength eliminate the 

possibility of prejudice arising from the prosecutor's argument?

The evidence leads us to conclude that the Commonwealth's 

evidence did so. The DNA evidence unquestionably pointed to the 

defendant, and not Webber or Carlson (or anyone else), as the 

person responsible for the victim's death. That is, there was 

no DNA evidence tying Webber to the victim, essentially none 

tying Carlson,

34 extremely little linking an unidentified 

person,35 and the defendant was the sole source of the DNA 

located in the victim's rectum. As indicated previously, the 

DNA evidence from the rectum by itself indicates only that the 

defendant had intercourse with the victim close to the time of 

 

curative instruction with this substantive message would have 

been appropriate.

34 One of the stains on the victim's underwear could have 

come from half of all males, including Carlson (as well as the 

defendant). The statistical probability that Carlson was the 

source of the DNA on the stain is so low that it is virtually 

meaningless.

35 As explained previously, one of the areas of the victim's 

underwear that was tested led to generation of a partial male

DNA profile that did not match the defendant, Webber, or 

Carlson. No further evidence covering the possibility of 

another possible culprit beyond these three was offered.
34

her death, not that he killed her. However, when this DNA 

evidence is combined with (1) the absence of drainage on the 

victim's underwear, suggesting the victim had not pulled up her 

pants and underwear after intercourse and before she was killed; 

(2) bloodstains -- or what were certainly most likely to be 

bloodstains -- on the victim's hip, knee, and sneaker, all of 

which were consistent with the defendant's DNA, and one of which 

would have matched only one in 1.366 billion randomly selected 

Caucasians;36 and (3) the fact that none of these fragile stains 

was smeared or disturbed in any way -- again suggesting the 

victim had not pulled up her pants and underwear -- the 

conclusion that the defendant killed the victim seems almost 

inescapable.37

 

36 The defendant argues that it is a misstatement of the 

evidence to refer to the red-brown stains found on the victim's 

hip, right thigh-left knee area, and sneaker as bloodstains, as 

the prosecutor did in his closing. We disagree. All three 

stains found on the victim screened positive for blood, and one 

of them was confirmed as blood by additional testing. Moreover, 

as summarized here in the text, all three stains were consistent 

with the defendant's DNA, one of them overwhelmingly so. The 

prosecutor's argument on the point was proper, and the evidence 

strongly supports the verdict.

37 The defendant also contended the prosecutor "improperly 

vouched on the evidence" in his closing. The defendant points 

to the prosecutor's comment, "I say with a high level of 

confidence, on behalf of the citizens" that the defense was 

seeking to divert the jury with the third-party culprit defense. 

See note 28, supra, where the prosecutor's comment is quoted in 

full. As discussed in the text, we consider the prosecutor’s 

comment to have been improper, but vouching is not the issue. 

As the defendant points out, improper vouching occurs when the 
35

In sum, there is no question the defendant had the right to 

advance a third-party culprit defense, and no question that the 

prosecutor's argument improperly sought to impugn that defense. 

But even considering the entire case through the lens supplied 

by G. L. c. 278, § 33E, we are persuaded that the DNA evidence 

pointing to the defendant as the person who killed the victim

requires the conclusion that the defendant, in the end, was not 

prejudiced by the prosecutorial errors.

38 A new trial is not 

warranted.

6. Jury instruction on third-party culprit evidence. The 

defendant also argues that the judge committed reversible error 

by declining to give the defendant's proffered instruction on 

the third-party culprit defense. There was no error.

The judge instructed the jury:

"The Commonwealth does not have the burden of proving 

that no one else may have committed the murder, nor does 

the defendant have to prove that another person committed 

 

prosecutor personally expresses a belief in the credibility of a 

witness. See Commonwealth v. Tu Trinh, 458 Mass. 776, 786

(2011).

38 It is also the case that most of the prosecutor's 

improper comments were made in the first part of his long 

closing. (The prosecutor's closing lasted for approximately 

fifty minutes.) Thereafter, the prosecutor principally focused 

his attention on the specifics of the trial evidence, and 

marshalled the evidence to refute the substance of the thirdparty culprit defense. This was an eminently permissible and 

appropriate approach and, given the length of the closing, may 

have blunted the impact of the earlier improper comments. It is 

important to consider the prosecutor's argument as a whole. See 

Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002).
36

the offense charged. The Commonwealth does have the burden 

to prove the defendant's guilt by proof beyond a reasonable 

doubt."

To date, this court has not held that where third-party 

culprit evidence is admitted, a judge is required to give an 

instruction on it, as long as the judge explains that "the 

Commonwealth's burden includes the obligation to prove beyond a 

reasonable doubt that the defendant committed the crime." 

Commonwealth v. Hoose, 467 Mass. 395, 412 (2014). The judge's 

instructions did this, and the quoted instruction at least 

specifically mentioned the type of evidence at issue. Although 

giving the defendant's proposed instruction on third-party 

culprit evidence39 would have been appropriate -- especially in 

 

39 The instruction requested by the defense stated in 

relevant part:

"Although the defendant is under no obligation to 

prove his innocence, the defendant has raised the defense 

of other persons who you could find had motive, 

opportunity, or reason to have killed [the victim]. 

Although such persons are not on trial, the defendant has 

brought forward some evidence which might indicate that a 

third party, not the defendant, committed the crime for 

which the defendant is charged. The defendant must show 

some evidence which, if believed, tends to directly connect 

a third party to the crime. The defendant offers the 

third-party culprit testimony not to prove the guilt of the 

third party, but for your consideration as to the guilt of 

the accused. You must consider if this evidence raises a 

reasonable doubt as to the defendant's guilt. Keep in 

mind, however, that the defendant is not required to prove 

another person committed the crime. On the other hand, the 

Commonwealth does not have the burden of proving that no 

one else may have committed the offenses. In the end, the 

burden remains with the Commonwealth to prove the 
37

light of the prosecutor's closing argument -- the judge was not 

required to do so.

7. Review under G. L. c. 278, § 33E. We have reviewed the 

evidence and the trial record thoroughly and carefully pursuant 

to our obligation under G. L. c. 278, § 33E. We conclude that 

the defendant's conviction of aggravated rape must be reversed, 

but find no basis for any additional relief.

8. Conclusion. With respect to the charge of aggravated 

rape, the defendant's conviction is reversed, the jury's finding 

of guilt is set aside, and judgment shall enter for the 

defendant. The defendant's conviction of murder in the first 

degree is affirmed.

So ordered.

 

defendant's guilt of the crime charged beyond a reasonable 

doubt."