NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

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

1030; SJCReporter@sjc.state.ma.us

SJC-11656

COMMONWEALTH vs. DEMERY WILLIAMS.

Hampden. November 6, 2015. - October 17, 2016.

Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.1

Homicide. Robbery. Assault and Battery by Means of a Dangerous 

Weapon. Joint Enterprise. Felony-Murder Rule. Evidence, 

Joint venturer, Wiretap, Admissions and confessions, Expert 

opinion. Electronic Surveillance. Constitutional Law, 

Speedy trial, Confrontation of witnesses. Witness, Expert, 

Unavailability. Cellular Telephone. Deoxyribonucleic 

Acid. Search and Seizure, Warrant. Practice, Criminal, 

Capital case, Speedy trial, Admissions and confessions, 

Confrontation of witnesses, Instructions to jury, 

Assistance of counsel, Loss of evidence by prosecution.

Indictments found and returned in the Superior Court 

Department on September 26, 2011.

The cases were tried before John J. Agostini, J.

Kathleen M. McCarthy for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the 

Commonwealth.

 

1 Justice Cordy participated in the deliberation on this 

case prior to his retirement.
2

LENK, J. The defendant was convicted as a joint venturer 

of murder in the first degree, armed robbery, and assault and 

battery by means of a dangerous weapon in connection with the 

death of William Jones in January, 2010. On direct appeal from 

that conviction, he argues that his motions for required 

findings of not guilty should have been granted, and that his 

case should have been dismissed on speedy trial grounds. In 

addition, he argues that certain evidence, including his 

statements to police, should not have been admitted at trial. 

The defendant also seeks relief under G. L. c. 278, § 33E. 

Having reviewed the entire record, we affirm the convictions and 

discern no reason to exercise our authority to grant 

extraordinary relief.

1. Factual background. We recite the facts the jury could 

have found, reserving certain details for later discussion. At 

approximately 8 A.M. on January 22, 2010, the defendant, an 

employee at a tomato processing plant in Hartford, Connecticut, 

told his supervisor that he needed to leave work in order to 

conduct a drug deal. The supervisor gave him permission to 

leave, and the defendant was picked up by Jones in a white 

Saturn sport utility vehicle (SUV). The pair drove to a house 

on Florida Street in Springfield, where Jones, a drug dealer, 

had been led to believe that he would buy drugs from Curtis 

Combs, an acquaintance of the defendant. The defendant, 
3

however, knew that Jones was going to be robbed. He went into 

the house to introduce Jones to Combs, but returned outside to 

serve as a lookout.

The defendant heard "tussling" inside the house as well as 

a "zzzt, zzzt" sound. Combs then brought Jones out of the house 

while striking him in the back of the neck with a stun gun. 

After Jones was placed in the back seat of the Saturn, the 

defendant drove the vehicle to the parking lot of a grocery 

store in Bloomfield, Connecticut. The defendant left Jones in 

the Saturn, and was driven back to his workplace in another 

vehicle.

The defendant returned to work around 12:30 P.M. He told 

his coworkers that he had made a profit on the deal, and offered 

to buy them all lunch. In addition, he gave ten dollars each to 

his supervisor and to another coworker. At one point, he fanned 

out approximately $4,000 to $5,000, mostly in one hundred dollar 

bills. The following evening, Jones's body was found lying 

across the back seat of the Saturn in the grocery store parking 

lot. At trial, a medical examiner testified that the cause of 

his death was ligature strangulation.

The investigation of Jones's death was undertaken primarily 

by officers of the Bloomfield, Connecticut, police department 

over a two-week period in early 2010. While searching the 

Saturn pursuant to a warrant, police found the fingertip from a 
4

latex glove on the floor beneath the back seat. Jones's and the 

defendant's deoxyribonucleic acid (DNA) profiles were both 

determined to be contributors to a DNA profile found on the 

glove fingertip, and to another DNA profile found on one of the 

headrests in the vehicle.2 The defendant routinely wore latex 

gloves of the same type as part of his work at the tomato 

processing plant.

Officers of the Bloomfield police department first 

interviewed the defendant at his workplace on January 25, 2010. 

Unbeknownst to the defendant, one of the interviewing officers 

was carrying a pen recorder that audiotaped their conversation,

as permitted under Connecticut law. The defendant told police 

that Jones had arranged to meet with him on January 22, 2010, 

but did not show up. He provided the police with a written, 

signed statement to that effect.

Video footage from the tomato processing plant, however, 

showed that the defendant was picked up from work in a white 

SUV, and dropped off again by a different vehicle around 12:30 

 

2 The expected frequency of individuals who could be a 

contributor to the deoxyribonucleic acid (DNA) profile on the

latex glove fingertip was approximately 1 in 1.2 million in the 

African-American population, 1 in 2.6 million in the Caucasian 

population, and 1 in 4.4 million in the Hispanic population. 

The expected frequency of individuals who could be a contributor 

to the DNA profile on the headrest was approximately 1 in 1,800 

in the African-American population, 1 in 2,500 in the Caucasian 

population, and 1 in 4,400 in the Hispanic population. Jones 

was apparently African-American, as is the defendant.
5

P.M on the day in question. In addition, cellular site location 

information (CSLI) for Combs's and the defendant's cellular 

telephones supported an inference that, during that time period, 

the defendant had traveled from his workplace to Springfield to 

meet Combs, and that the pair had traveled back to the 

defendant's workplace via Bloomfield.

On February 2, 2010, police confronted the defendant with 

this evidence during a second interview at the Bloomfield police 

station, which also was recorded without his knowledge by the 

same means. As it became clear to the defendant that what he 

was saying conflicted with evidence police already had obtained, 

he changed his story several times. Eventually, he explained 

that he had driven with Jones from his workplace to visit Combs 

in Springfield, on the understanding that Jones would be robbed. 

He described the use of the stun gun and his role as a lookout, 

and stated that he had driven Jones to the grocery store parking 

lot. He provided police with a written, signed statement 

summarizing that version of events as well.3 The defendant was 

not arrested at that time.

 

3 Approximately one week into their investigation, 

Bloomfield police officers considered searching the house on 

Florida Street in Springfield. They stopped pursuing this lead, 

however, after a Hampden County assistant district attorney 

informed them that he considered an application for a search 

warrant unlikely to succeed in Massachusetts because the 

information was "stale."
6

For reasons that are not clear from the record, the 

investigation then stalled until February, 2011, when a trooper 

of the Massachusetts State police was assigned to the case. The 

trooper interviewed several potential witnesses and obtained 

buccal swabs from the defendant and others that were used for 

additional DNA testing. In September, 2011, the Hampden County 

district attorney sought indictments against the defendant, and 

he was arraigned in Massachusetts on October 4, 2011.

2. Procedural posture. On September 26, 2011, a grand 

jury returned four indictments, charging the defendant with 

murder in the first degree, G. L. c. 265, § 1; kidnapping, G. L. 

c. 265, § 26; armed robbery, G. L. c. 265, § 17; and assault and 

battery by means of a dangerous weapon, G. L. c. 265, § 15A (b).4

The Commonwealth proceeded on a joint venture theory of 

liability, with Combs as a joint venturer.5 Prior to trial, a 

nolle prosequi was entered with respect to the kidnapping 

charge. The defendant filed a motion to dismiss the remaining 

charges on speedy trial grounds pursuant to Mass R. Crim. P. 36, 

as amended, 422 Mass. 1503 (1996). That motion was denied, and 

a petit jury was convened in the Superior Court.

 

4 The bill of particulars stated that Jones was strangled to 

death by means of a ligature. The indictments for armed robbery 

and for assault and battery by means of a dangerous weapon both 

stated that the dangerous weapon used was a stun gun.

5 Combs was tried separately.
7

At the close of the Commonwealth's case, the defendant 

filed a motion for a required finding of not guilty, which was 

denied. The defendant's theory of the case was based on the 

inadequacy of the investigation and on the insufficiency of the 

evidence; he did not introduce any evidence.

The defendant was convicted on all charges. His conviction 

of murder in the first degree was based on two theories: 

felony-murder based on the predicate felony of armed robbery, 

and extreme atrocity or cruelty. Immediately after the verdict, 

the defendant filed a motion for a required finding of not 

guilty, pursuant to Mass. R. Crim. P. 25, as amended, 420 Mass. 

1502 (1995), which also was denied. This appeal followed.

3. Discussion. The defendant argues that the denials of 

his motions for required findings and his motion to dismiss on 

speedy trial grounds were error. He also argues that the judge 

erred in admitting certain evidence: the defendant's recorded 

statements to police and transcripts of those statements; the 

testimony of a substitute medical examiner; cellular telephone 

records; and DNA evidence taken from the latex glove fingertip. 

In addition, he seeks relief pursuant to G. L. c. 278, § 33E. 

These issues are addressed in turn below.

a. Sufficiency of the evidence. The defendant contends 

that there was insufficient evidence to convict him as a joint 

venturer with respect to any of the indictments. In reviewing 
8

the denial of a motion for a required finding, 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" 

(emphasis in original). Commonwealth v. James, 424 Mass. 770, 

784 (1997), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 

(1979). "[T]he evidence and the inferences permitted to be 

drawn therefrom must be 'of sufficient force to bring minds of 

ordinary intelligence and sagacity to the persuasion of [guilt] 

beyond a reasonable doubt.'" Commonwealth v. Semedo, 456 Mass. 

1, 8 (2010), quoting Commonwealth v. Latimore, supra.

Because the defendant was convicted as a joint venturer, to 

affirm the denial of the motion for a required finding we must 

conclude that the evidence was "sufficient to permit a rational 

juror to conclude beyond a reasonable doubt that the defendant 

knowingly participated in the commission of the crime[s] 

charged, with the intent required to commit the crime[s]." 

Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009).

i. Felony-murder. The defendant contends that the 

evidence was insufficient to prove that he was a joint venturer 

in an armed robbery that resulted in Jones's death.6 To find the 

defendant guilty of murder in the first degree on a theory of 

 

6 See Commonwealth v. Rodriquez, 454 Mass. 215, 216 n.3

(2009) (noting that armed robbery can be underlying felony for 

felony-murder).
9

felony-murder with armed robbery as the predicate felony, a 

rational juror must have been able to find beyond a reasonable 

doubt that the defendant was a joint venturer in an armed 

robbery and that Jones's death occurred "in the commission or 

attempted commission of" that robbery. See G. L. c. 265, § 1; 

Zanetti, supra at 468.

To find the defendant guilty of the underlying felony of 

armed robbery, proof was required that at least one of the 

alleged coventurers was armed with a dangerous weapon; either 

applied actual force or violence to Jones's body, or by words or 

gestures put him in fear; took Jones's money or property; and 

did so with the intent (or sharing the intent) to steal it. See 

Commonwealth v. Benitez, 464 Mass. 686, 689-690 (2013), citing 

Commonwealth v. Rogers, 459 Mass. 249, 252 n.4, cert. denied, 

132 S. Ct. 813 (2011). In the absence of proof that the 

defendant himself was armed with a dangerous weapon, proof that 

the defendant knew that Combs was so armed would satisfy the 

first element of armed robbery. See Benitez, supra at 689 n.4, 

citing Commonwealth v. Fickett, 403 Mass. 194, 196–197 (1988). 

In the defendant's view, there was no evidence that Jones was 

killed in the commission of a robbery, that the defendant knew 
10

that Combs would use a stun gun during the robbery,7 or that 

anything was taken from Jones.

We disagree. The defendant told police that he knew Combs 

would rob Jones, that he saw Combs repeatedly assault Jones with 

a stun gun, and that he drove an injured Jones to Bloomfield, 

Connecticut. In addition, a witness testified that on the day 

Jones was killed he had observed Combs and another AfricanAmerican man at the house on Florida Street in Springfield, 

excitedly looking at something in the back seat of the Saturn. 

This evidence would have allowed a rational juror to conclude 

that Jones was killed in the commission of an armed robbery. 

Because Jones knew the defendant, an inference reasonably could 

be drawn that the defendant had an incentive to ensure that 

Jones would not retaliate after being robbed. Although the 

defendant claimed that Jones was still alive during the drive to 

Bloomfield, he repeatedly changed his story during his 

interviews with police. It would have been reasonable to infer 

that an incapacitated Jones was killed in Springfield in the 

 

7 The defendant also argues on this basis that there was 

insufficient evidence for the jury to conclude beyond a 

reasonable doubt that he was a joint venturer in an assault and 

battery by means of a dangerous weapon against Jones. That 

argument is unavailing for the same reasons discussed below.
11

course of the robbery, during or shortly after Combs's sustained 

assault with the stun gun.8

Furthermore, there was sufficient evidence that the 

defendant knew Combs was armed with the stun gun. Cellular 

telephone records indicated that the defendant had been in 

contact with Combs on the day before and at relevant times on 

the day of the robbery, suggesting that he had played a 

significant role in planning to rob Jones. The defendant knew 

that Jones was a large man and that Jones intended to take part 

in a drug deal. A rational jury therefore reasonably could 

infer that the defendant and Combs planned to use a weapon to 

overpower Jones when he arrived in Springfield. See 

Commonwealth v. Housen, 458 Mass. 702, 708 (2011) (evidence 

sufficient to support inference that defendant knew codefendant

was armed where victim was drug dealer unlikely to submit to 

robbery without show of superior force). Even if the defendant 

had been unaware in advance that Combs would be armed, however, 

he told police that he saw Combs using the stun gun on Jones 

before he drove Jones to Bloomfield. The defendant's knowledge 

of the use of the weapon and continued participation in the 

robbery thereafter were sufficient to implicate him as a joint 

venturer. Compare Commonwealth v. Norris, 462 Mass. 131, 140 

 

8 As discussed below, it also would have been reasonable to 

infer that a ligature ultimately was used to cause Jones's 

death.
12

(2012) (evidence sufficient to conclude that defendant was joint 

venturer in armed robbery where defendant continued to 

participate in robbery after learning codefendant was armed).

Although defense counsel emphasizes that money Jones 

previously had hidden in his home was not taken during the 

alleged robbery, the defendant returned to work on January 22, 

2010, with what appeared to be a windfall profit. The money he 

showed off to his coworkers reasonably could be inferred to have 

been taken from Jones, because the defendant told police that he 

had lured Jones to Springfield with the promise that he could 

purchase drugs there.

ii. Extreme atrocity or cruelty. The defendant also 

argues that the evidence was insufficient to convict him as a 

joint venturer of murder in the first degree on a theory of 

extreme atrocity or cruelty because no evidence showed that he 

participated in the strangulation of Jones by ligature, or that 

Jones's murder was extremely atrocious or cruel.

"The critical question with respect to whether the evidence 

was sufficient to warrant a finding that a defendant is guilty 

of murder in the first degree as a joint venturer on the 

theor[y] of . . . extreme atrocity or cruelty is whether the 

defendant was present at the scene of the murder, with the 

knowledge that another intends to commit a crime or with intent 

to commit the crime and by agreement was willing and available 
13

to assist if necessary." Commonwealth v. Deane, 458 Mass. 43, 

50 (2010), citing Commonwealth v. Phillips, 452 Mass. 617, 633 

(2008). The Commonwealth need not prove, however, "exactly how 

a joint venturer participated in the murder[], or which of the 

two did the actual killing." Deane, supra at 50-51.

Murder on a theory of extreme atrocity or cruelty only 

requires a mens rea of malice. See Commonwealth v. Garcia, 470 

Mass. 24, 32 (2014). "Malice is defined in these circumstances 

as an intent to cause death, to cause grievous bodily harm, or 

to do an act which, in the circumstances known to the defendant, 

a reasonable person would have known created a plain and strong 

likelihood that death would follow." Id., quoting Commonwealth

v. Szlachta, 463 Mass. 37, 45-46 (2012). A defendant does not 

have to have known that his or her joint venturer possessed the 

murder weapon. See Commonwealth v. Pov Hour, 446 Mass. 35, 42 

(2006). Furthermore, he or she need not have known or intended 

that the murder be extremely atrocious or cruel. See Garcia, 

supra.

Viewing the evidence in the light most favorable to the 

Commonwealth, a rational juror reasonably could have concluded 

that the defendant was present at the scene of Jones's murder. 

The defendant told police he had escorted Jones into the house 

on Florida Street to introduce Jones to Combs. Other evidence 

indicated that that the defendant had been in physical contact 
14

with Jones in the Saturn: both the defendant's and Jones's DNA 

profiles were present on the latex glove fingertip that was 

found on the floor in the back seat of the vehicle. In 

addition, when Jones was found lying on his stomach across the 

back seat of the vehicle, his feet were pressed up against the 

door. Given Jones's size, it would be reasonable to infer that 

he had been put into the vehicle forcibly with the defendant's 

help, and that he was at least incapacitated by the stun gun if 

not already strangled when he was put there.

While "[t]he line that separates mere knowledge of unlawful 

conduct and participation in it, is 'often vague and 

uncertain,'" Norris, 462 Mass. at 140, quoting Commonwealth v. 

Longo, 402 Mass. 482, 487 (1988), the evidence also allowed for 

the reasonable conclusion that the defendant either knew that 

Combs intended to kill Jones or himself intended to cause Jones 

death or grievous bodily harm. Jones knew only the defendant, 

not Combs; the defendant thus had a greater incentive than Combs 

to ensure that Jones would not retaliate. Furthermore, it is 

evident that the defendant wore latex gloves while in contact 

with Jones, inferably to avoid leaving fingerprints. In 

addition, the defendant's changing story to police and others 

regarding what happened on the day of Jones's death allowed a 

reasonable inference that the defendant was conscious of his 

guilt.
15

There was also sufficient evidence from which a jury could 

have concluded that Jones's death was extremely atrocious or 

cruel. To determine that a homicide was committed with extreme 

atrocity or cruelty, a jury must consider several factors: a 

defendant's or joint venturer's "indifference to or taking 

pleasure in the victim's suffering, consciousness and degree of 

suffering of the victim, extent of physical injuries, number of 

blows, manner and force with which delivered, instrument 

employed, and disproportion between the means needed to cause 

death and those employed." Commonwealth v. Cunneen, 389 Mass. 

216, 227 (1983). While a jury must find at least one of the 

Cunneen factors to support a verdict of extreme atrocity or 

cruelty, see Commonwealth v. Blackwell, 422 Mass. 294, 299 

(1996), they need not be unanimous with respect to which factor 

or factors they determine to be applicable. See Commonwealth v. 

Morganti, 455 Mass. 388, 407 (2009), S.C., 467 Mass. 96 (2014).

The jury heard testimony that Jones was assaulted 

repeatedly with a stun gun and eventually strangled to death. 

They also heard that it would have taken eight to ten seconds of 

sustained strangulation to cause Jones to lose consciousness, 

and several more minutes for strangulation to cause death, and 

that his injuries were consistent with terminal seizure 

activity, in which a person being strangled twitches and bites 

his lips as he dies. See Commonwealth v. Linton, 456 Mass. 534, 
16

546-547 (2010) (reasonable jury could find victim's homicide by 

means of manual strangulation was extremely atrocious or cruel). 

This evidence would have allowed the jury reasonably to apply 

several of the Cunneen factors.9

b. Speedy trial. The defendant argues that his motion to 

dismiss on speedy trial grounds was incorrectly denied, because 

his trial was delayed repeatedly for over one year. Pursuant to 

Mass R. Crim. P. 36 (b), as amended, 422 Mass. 1503 (1996), a 

defendant is entitled to dismissal if a trial does not take 

place within twelve months of the defendant's arraignment.10 

However, a period of delay does not count toward the twelvemonth maximum if a defendant acquiesced in or benefited from it. 

See Commonwealth v. Roman, 470 Mass. 85, 92-93 (2014).

We consider the defendant's motion to dismiss on speedy 

trial grounds de novo. See Commonwealth v. Rodgers, 448 Mass. 

538, 540 (2007). "For purposes of a rule 36 calculation of 

excludable periods, the docket and the clerk's log are prima 

facie evidence of the facts recorded therein." Roman, supra

at 93. Because 518 days passed between October 4, 2011, the 

 

9 Furthermore, the defendant told police that, when he left 

Jones in the parking lot, he was still making "little noises." 

If the jury believed this statement, they reasonably could have 

inferred from it that the defendant was indifferent to Jones's 

suffering.

10 See Mass. R. Crim. P. 2 (b) (15), as amended, 397 Mass. 

1226 (1986) (defining "return day" as date of arraignment).
17

date the defendant was arraigned, and March 5, 2013, the date he 

filed his motion to dismiss, the defendant has established a 

prima facie case that his speedy trial right was violated.11 The 

Commonwealth therefore has the burden of showing that at least 

152 days of the delay should not count toward the twelve-month 

maximum.12 See id. at 92 (shifting burden to Commonwealth to 

justify delay after defendant establishes prima facie case).

That burden has been met in this case. "When a defendant 

has agreed to a continuance, or has not entered an objection to 

delay, he will be held to have acquiesced in the delay." Barry

v. Commonwealth, 390 Mass. 285, 298 (1983). See Roman, supra

at 93. Here, it is evident from the docket and the clerk's log 

that the defendant and the Commonwealth jointly requested to 

continue the pretrial hearing date from March 14, 2012, to 

April 23, 2012 -- a delay of forty-one days. They also agreed 

to extend the deadline for filing pretrial motions from April

30, 2012, to August 13, 2012 -- a delay of an additional 106

days. Moreover, they jointly requested to continue the trial 

date from December 3, 2012, the date they had jointly proposed 

in the pretrial conference report, to April 1, 2013. The 

 

11 See Mass R. Crim. P. 36 (b) (3), as amended, 422 Mass. 

1503 (1996) ("In computing any time limit other than an excluded 

period, the day of the act or event which causes a designated 

period of time to begin to run shall not be included").

12 The year 2012 was a leap year.
18

defendant thus had acquiesced to an additional period of delay 

of at least 120 days when, on March 5, 2013, he filed his motion 

to dismiss on speedy trial grounds. Other delays may also have 

been permitted, but we need not address them here. The delays 

described above already substantially exceed the number of days 

the Commonwealth must justify.

c. Defendant's statements to police. As noted, police 

audiorecorded both of their interviews of the defendant without 

his knowledge, using a pen recorder.13 After the defendant filed 

an unsuccessful motion in limine to exclude the interviews from 

evidence, the contents of the interviews were admitted in 

several ways at trial, over repeated objection. The officer who 

recorded the interviews read excerpts from the transcripts of 

those recordings to the jury; she also read the several written 

statements that the defendant signed in her presence.14 The 

transcript excerpts and written statements also were admitted in 

evidence separately. Furthermore, the unredacted recordings of 

 

13 The record does not indicate whether the defendant was 

informed of the Miranda rights prior to either interview. The 

defendant did not, however, move to suppress the statements on 

Miranda grounds. He requested and received a humane practice 

instruction at trial.

14 The officer also testified regarding her perception of 

the defendant's demeanor during the interviews, including her 

belief that the defendant was "relaxed" and not under the 

influence of drugs or alcohol.
19

the interviews were marked as exhibits, and redacted recordings 

were available to the jury upon request during deliberations.

The defendant argues that the contents of his oral 

statements to police should not have been admitted,15 and 

contests the manner in which they were admitted. For the 

reasons that follow, we conclude that the judge did not abuse 

his discretion either in the admission of the statements 

themselves or in the ways they were admitted.

i. Admission of statements. The recordings of the 

defendant's statements to police were not complete -- the 

officer who was carrying the recording device left the interview 

room at least once during the second interview. Accordingly,

the defendant contends that his statements should not have been 

admitted because the recordings were incomplete, and because 

they were recorded without his knowledge or consent. Reviewing 

the admission of the defendant's statements for abuse of 

discretion, however, we discern no error.16 See Commonwealth v. 

Valentin, 420 Mass. 263, 270 (1995), S.C., 470 Mass. 186 (2014).

 

15 Although the defendant preserved objections to the 

admission of his written, signed statements to police, he does 

not raise these arguments on appeal. We discern no error in 

their admission.

16 In his order denying the motion in limine, the trial 

judge erroneously stated that the audiorecordings were complete 

recordings of the defendant's interviews with police. 

Nonetheless, we conclude that the statements were properly 

admitted. See Commonwealth v. Bennett, 414 Mass. 269, 271 
20

Although the lack of a complete recording of a defendant's 

statements to police at times may be problematic, completeness 

is not a prerequisite for admission. See Commonwealth v. 

DiGiambattista, 442 Mass. 423, 449 (2004). Instead, "a 

defendant whose interrogation has not been reliably preserved by 

means of a complete electronic recording should be entitled, on 

request, to a cautionary instruction concerning the use of such 

evidence." Id. at 447. Such an instruction was given in this 

case: the jury were told to consider the defendant's alleged 

statements with "great care and caution." Furthermore, the fact 

that the recordings were made without the defendant's knowledge 

was not a basis to exclude them from the evidence in this case. 

Although secret recordings sometimes may be misleading, there is 

no indication that the defendant would have acted differently 

had he been aware that he was being recorded. To the contrary, 

he signed several written statements that memorialized the 

versions of what had happened that he related to police.

The defendant also argues, for the first time on appeal, 

that the recordings were made in violation of G. L. c. 272, 

§ 99, the Massachusetts wiretap statute. General Laws c. 272, 

§ 99, provides a suppression remedy in Massachusetts for the 

 

(1993), citing Aetna Cas. & Sur. Co. v. Continental Cas. Co.,

413 Mass. 730, 734 (1992) ("We decline . . . to rest our 

conclusion on the ground on which the trial judge relied but 

reach the same result for a different reason").
21

unlawful interception of communications by police. 

Communications intercepted by Federal law enforcement officers 

are explicitly exempted from that remedy if the officers are 

"acting pursuant to authority of the laws of the United States 

and within the scope of their authority." G. L. c. 272, 

§ 99 D 1 c. The defendant argues that, because the statute does 

not contain a similarly explicit exemption for law enforcement 

officers of another State acting pursuant to that State's laws, 

the recordings at issue here should have been suppressed.

Nonetheless, "[t]he legality of the procedures employed by 

the police forces of other States operating in their own 

jurisdiction is governed by the law of that jurisdiction." 

Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). The 

recordings at issue here were made by Connecticut police 

officers in Connecticut more than one year before Massachusetts 

law enforcement officers became involved in the investigation. 

Nothing in the record suggests that the recordings were made 

with the knowledge or at the behest of the Commonwealth. 

Because the police are permitted to record interviews secretly 

under Connecticut law, no suppression remedy is available. See 

Conn. Gen. Stat. § 53a-187(b). See also State v. DelVecchio, 

191 Conn. 412, 430-432 (1983) (no suppression remedy under 

Connecticut Constitution for secretly recorded statements).
22

ii. Manner of admission. The defendant argues that the 

interview transcripts were presented improperly to the jury "in 

lieu" of the recordings rather than as an interpretive 

supplement to them. Relatedly, he argues that it was error to 

admit redacted versions of the recordings after the close of 

evidence, rather than through a witness, and before he had had a 

chance to review them.

Properly authenticated transcripts of recordings, however, 

may be "offer[ed] . . . in evidence or for identification as an 

aid to the finder of fact." Commonwealth v. Portillo, 462 Mass. 

324, 327 (2012). Here, the transcripts that were read in 

evidence had been prepared by an official court reporter at the 

defendant's request.17 In addition, there was no error in the 

eventual admission of the redacted recordings. The unredacted 

recordings previously had been authenticated and marked as an 

exhibit; it is evident that the redacted recordings were 

admitted simply to reflect redactions to the transcript that had 

been agreed to before trial. See Commonwealth v. Rogers, 459 

Mass. 249, 268, cert. denied, 132 S. Ct. 813 (2011) (admission 

of cumulative evidence "fall[s] within the judge's discretion"). 

In any event, the record does not indicate that the jury ever 

asked to listen to the recordings, and the defendant does not 

 

17 The Commonwealth also had a transcription of the 

recordings prepared by a court reporter, but agreed to use the 

defendant's version.
23

suggest otherwise. Any error in their admission therefore would 

have been harmless.

d. Substitute medical examiner. Before trial, the 

Connecticut medical examiner who conducted Jones's autopsy and 

prepared the autopsy report, Dr. Frank Evangelista, was indicted 

in Massachusetts for perjury and obstruction of justice in an 

unrelated matter.18 Although Evangelista was available to 

testify, the Commonwealth opted instead to present testimony 

from a substitute medical examiner, Dr. Joann Richmond, a 

retired forensic pathologist, regarding the cause of Jones's 

death. The defendant repeatedly objected to the admission of 

this testimony.19 Nonetheless, Richmond ultimately was allowed 

to testify regarding the nature of Jones's injuries, and to 

offer her opinion concerning the cause of his death. 

Evangelista's autopsy report was not offered or admitted in 

evidence.

On appeal, the defendant argues that the admission of 

testimony by a substitute medical examiner, despite the 

 

18 The district attorney for the Plymouth district brought 

those indictments.

19 The defendant filed a motion in limine and a supplemental 

motion in opposition to the Commonwealth's motion to permit 

testimony by a substitute medical examiner. In addition, the 

defendant objected to the admission of the testimony during 

pretrial hearings, and moved to strike the testimony. The 

defendant also objected to the substitute examiner's opinion 

testimony regarding the cause of the victim's death.
24

availability of the original examiner, violated his 

constitutional confrontation rights. In addition, he argues 

that the substitute testimony should not have been admitted 

because it was not scientifically reliable. He also contends 

that the jury should have been given a missing witness 

instruction to account for the absence of Evangelista's 

testimony.

i. Right of confrontation. The Sixth Amendment to the 

United States Constitution and art. 12 of the Massachusetts 

Declaration of Rights both provide criminal defendants with the 

right to be confronted with the witnesses against them. Neither 

the fact that the original examiner was available to testify nor 

the contents of the substitute examiner's testimony, however, 

violated that right.

The defendant argues that the Commonwealth's use of a 

substitute medical examiner in this case impermissibly prevented 

him from calling Evangelista's credibility into question on 

cross-examination. Nonetheless, "[w]e have never stated that a 

substitute medical examiner may not testify to his or her own 

opinions unless the medical examiner who performed the autopsy 

is shown to be unavailable, nor is there any rule of criminal 

procedure setting forth such a requirement." Commonwealth v. 

Reavis, 465 Mass. 875, 881-882 (2013). Because the Commonwealth 

did not offer testimonial out-of-court statements by Evangelista 
25

in this case, the defendant had no constitutional right to 

confront those statements.

A substitute medical examiner may not testify to facts in 

an autopsy report if that report has not been admitted in 

evidence. See Commonwealth v. Durand, 457 Mass. 574, 584-585 

(2010), citing Commonwealth v. Nardi, 452 Mass. 379, 391 (2008). 

A substitute examiner may, however, "offer an opinion on the 

cause of death, based on his [or her] review of an autopsy 

report by the medical examiner who performed the autopsy and his 

review of the autopsy photographs, as these are documents upon 

which experts are accustomed to rely, and which are potentially 

independently admissible through appropriate witnesses." 

Reavis, supra at 883, citing Commonwealth v. Emeny, 463 Mass. 

138, 145 (2012). That is what happened here.

As noted, Evangelista's autopsy report as to Jones was not 

offered against the defendant, and Richmond did not testify to 

facts it contained. Rather, she based her testimony on her 

independent understanding as a pathologist of both the report

and photographs of Jones's injuries from the crime scene and 

autopsy. For example, she testified that the photographs showed 

petechial hemorrhaging in Jones's eyes, as well as bleeding and 

bruising injuries that were consistent with terminal seizurelike activity. In addition, she testified that, in her opinion, 

Jones died of "ligature strangulation." Furthermore, the 
26

defendant had an opportunity to cross-examine Richmond, and 

questioned her vigorously concerning the bases of her opinions.20 

See Commonwealth v. Greineder, 464 Mass. 580, 594-595, cert. 

denied, 134 S. Ct. 166 (2013) (noting that confrontation right 

protects opportunity for meaningful cross-examination). No more 

was constitutionally required.

ii. Scientific reliability of substitute testimony. The 

defendant argues that Richmond's testimony was scientifically 

unreliable because she did not perform Jones's autopsy herself. 

The trial judge, however, declined to exclude Richmond's 

testimony on this ground, and the defendant's objection at trial 

similarly was overruled. In light of our conclusion above that 

there was no constitutional error, we review those 

determinations for abuse of discretion. See Commonwealth v. 

Matthews, 450 Mass. 858, 871 (2008), citing Canavan's Case, 432 

Mass. 304, 311 (2000).

The testimony of a scientific expert witness is not 

admissible if the reasoning or methodology underlying that 

testimony is not scientifically valid or cannot be applied 

properly to the facts at issue in a given case. See 

 

20 On cross-examination, the substitute medical examiner 

acknowledged the deficiencies of substitute testimony: she 

noted that as the primary examiner she would have personally 

examined the victim's body, and not simply relied on pictures 

from the autopsy, and would also have had the ability to make 

independent measurements and compare the width of a shoelace 

found at the crime scene to the marks on the defendant's neck.
27

Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994), citing 

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-593 

(1993). See also Commonwealth v. Barbosa, 457 Mass. 773, 783 

(2010), cert. denied, 563 U.S. 990 (2011) (listing foundational 

requirements for admission of expert testimony in criminal 

case). A judge need not conduct an extensive inquiry into the 

validity of an expert's testimony if, on the other hand, "the 

expert's methodology has previously been accepted as reliable in 

the relevant field." Commonwealth v. Sliech-Brodeur, 457 Mass. 

300, 327 (2010), citing Commonwealth v. Shanley, 455 Mass. 752, 

763 n.15 (2010).

The witness's status as a substitute examiner was not a 

sufficient basis to exclude her testimony. Richmond may have 

been less well positioned to assess the cause of Jones's death 

than the medical examiner who conducted his autopsy, but she 

applied accepted methods and understandings of forensic medicine 

in her independent assessment of the photographs of Jones's 

injuries at trial. The judge therefore did not abuse his 

discretion in determining that Richmond's testimony would be a 

reliable scientific opinion.

iii. Missing witness instruction. A missing witness 

instruction permits the jury, "if they think reasonable in the 

circumstances, [to] infer that that person, had he [or she] been 

called, would have given testimony unfavorable to the party." 
28

Commonwealth v. Saletino, 449 Mass. 657, 668 (2007), quoting 

Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991). Such 

an instruction may be appropriate when a party "'has knowledge 

of a person who can be located and brought forward, who is 

friendly to, or at least not hostilely disposed toward, the 

party, and who can be expected to give testimony of distinct 

importance to the case,' and the party, without explanation, 

fails to call the person as a witness." Saletino, supra at 667, 

quoting Anderson, supra at 280 n.1. The instruction should be 

provided "only in clear cases, and with caution." Saletino, 

supra at 668, quoting Commonwealth v. Figueroa, 413 Mass. 193, 

199 (1992), S.C., 422 Mass. 72 (1996). If a judge determines 

that a missing witness instruction is not appropriate, counsel 

are not permitted to argue the issue during closing. Saletino, 

supra at 670. That determination is reviewed for abuse of 

discretion. See id. at 667. See also L.L. v. Commonwealth, 470 

Mass. 169, 185 n.27 (2014).

The judge denied the defendant's request for a "missing 

witness" instruction with respect to Evangelista, and prohibited 

him from arguing the issue to the jury. The judge determined 

that the Commonwealth had a legitimate tactical reason for not 

calling Evangelista -- it wished to avoid relying on a witness 

who was under indictment by another district attorney's office. 
29

That determination was not "outside the range of reasonable 

alternatives." See L.L., supra.

e. Admission of cellular telephone records. At trial, 

CSLI for Combs's and the defendant's cellular telephones was 

admitted in evidence. Call records for Combs's, Jones's, and 

the defendant's telephone numbers were also admitted. The 

defendant argues for the first time on appeal that the call 

records and CSLI were not obtained pursuant to search warrants, 

in violation of his rights under the Fourth Amendment to the 

United States Constitution and art. 14 of the Massachusetts 

Declaration of Rights, and in violation of the Federal stored 

communications act, 18 U.S.C. § 2703 (2012). He contends that 

his trial counsel was ineffective for failing to object to their 

admission on these bases.21 In addition, he challenges, as he 

did at trial, the qualifications of an expert witness who 

testified regarding the call records.

We discern no error in the admission of the CSLI and call 

records. Contrary to the defendant's contention, the record 

shows the call records were obtained pursuant to search warrants 

in Connecticut. Thus, there was no violation of the relevant 

 

21 The defendant's trial counsel objected to the admission 

of the cellular site location information (CSLI) data only on 

the ground that the version of the data she had been sent before 

trial was formatted slightly differently from the version that 

was admitted.
30

constitutional and statutory requirements, and his trial counsel 

was not ineffective for failing to raise these arguments.

Furthermore, the judge did not abuse his discretion in 

allowing a sales manager at the defendant's cellular telephone 

service provider to testify regarding the contents of call 

records. See Commonwealth v. Frangipane, 433 Mass. 527, 533, 

537 (2001) (reviewing preserved objection to admission of expert 

testimony for abuse of discretion). Although an expert witness 

may not testify to matters beyond his or her area of expertise 

or competence, id. at 533, the sales manager had been employed 

by the service provider for fifteen years and had been trained 

in reviewing customers' bills to interpret the type of call 

record information about which he testified. We discern no 

abuse of discretion in allowing this testimony.22

f. Admission of DNA evidence. The swab used for 

extracting raw DNA from the latex glove fingertip found in 

Jones's vehicle was consumed in its entirety before the police 

arrested the defendant. Although the defendant asked for DNA 

material for retesting during discovery, he was told repeatedly 

that no material existed. On April 24, 2013, however, days 

 

22 The defendant's contention that the particular call 

records and CSLI introduced in this case are not business 

records is also baseless. See Smith v. Maryland, 442 U.S. 735, 

744-745 (1979) (treating telephone call records as business 

records); Commonwealth v. Augustine, 467 Mass. 230, 232 (2014) 

(treating CSLI as business record).
31

before the trial was scheduled to begin, he learned for the 

first time that DNA material extracted from the swab remained 

available for further testing. Although the judge indicated a 

willingness to continue the trial, the defendant neither 

performed such testing before the scheduled trial date nor 

sought a continuance to do so. Instead, he sought 

unsuccessfully to exclude the results of the testing that had 

already been done on the swab.

The defendant argues that the Commonwealth violated its 

duty to preserve exculpatory evidence because he was unable to 

test raw DNA material from the swab independently, and because a 

defense expert was unable to observe the extraction process to 

ensure that proper protocols were followed. A prosecutor's 

preservation duty, however, only "extend[s] to material and 

information in the possession or control of members of his [or 

her] staff and of any others who have participated in the 

investigation or evaluation of the case and who either regularly 

report or with reference to the particular case have reported to 

his [or her] office." Commonwealth v. Daye, 411 Mass. 719, 734 

(1992), quoting Commonwealth v. St. Germain, 381 Mass. 256, 261 

n.8 (1980). Here, the prosecutor had no control over the 
32

testing of the swab at the time the raw DNA was consumed.23 

Thus, the preservation duty did not apply.

A defendant "'may be independently entitled to a remedy' of 

exclusion if the loss or destruction of evidence was due to the 

bad faith or reckless acts of the Commonwealth." Commonwealth

v. Sanford, 460 Mass. 441, 447 (2011), citing Commonwealth v. 

Williams, 455 Mass. 706, 718 (2010). Such a remedy is not, 

however, available in this case. Although the defendant 

received late notice of the availability of extracted DNA 

material for testing, the exhaustion of the raw DNA material on 

the swab was not due to that delay. Nor was the defendant 

prevented from testing the extracted DNA material that remained 

available.

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

examined the record carefully pursuant to our duty under G.L. 

 

23 The swab used for extracting DNA from the latex glove 

fingertip found in Jones's vehicle was first tested by the DNA 

unit of the Connecticut forensic laboratory on June 21, 2010. 

However, a scientist at the laboratory eventually determined 

that the "typing kit" initially used on the swab may have been 

"substandard or potentially compromised," requiring retesting. 

Because retesting would extract all remaining raw DNA material 

on the swab, the scientist contacted the Bloomfield, 

Connecticut, police department to determine whether a suspect 

had been arrested who should be given an opportunity to observe 

the testing. She was told that there was a person of interest 

in the case, but that no arrests had been made. On January 20, 

2011, she retested the swab. As noted above, Massachusetts 

State police did not assume an active role in the investigation 

until February, 2011, and the defendant was not arraigned in 

Massachusetts until October, 2011.
33

c. 278, § 33E, and discern no basis on which to grant the 

defendant relief.24

Judgments affirmed.

 

24 The defendant asks that we vacate his conviction of armed 

robbery because it is a lesser included offense of, and 

therefore merges with, the murder conviction. This request does 

not account for the defendant's conviction of murder on the

theory of extreme atrocity or cruelty. "[W]here, as here, the 

conviction of murder is based on a theory in addition to the 

theory of felony-murder, the conviction of the underlying felony 

stands." Commonwealth v. Brum, 441 Mass. 199, 200 n.1 (2004), 

citing Commonwealth v. Pennellatore, 392 Mass. 382, 390 (1984).