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SJC

- 10975

COMMONWEALTH vs

. MAXWELL WIGGINS, JR.

(and twenty

- eight companion cases 1 ).

Hampden. February 10, 2017.

- September 6

, 2017

.

Present: Gants, C.J., Hines, Lowy, & Budd, JJ. 2

Homicide

. Home Invasion

. Robbery

. Evidence , Identification,

Cross

- examination by codefendant's counsel, Relevancy and

materiality, Photograph. Identification

. Deoxyribonucleic

Acid

. Practice, Criminal , Capital case, Identification of

defendant in courtroom, Severance, Mistrial, Argument by

prosecutor, Sentence. Constitutional Law , Sentence.

I ndictments found and returned in the Superior Court

Department on September 25, 2007.

Pretrial motions to suppress evidence were heard by

Cornelius J. Moriarty

, J.; and t he case s were tried before Peter

A. Velis

, J.

Alan Jay Black for Maxwell Wiggins, Jr.

Jeffrey L. Baler for Swinkels Laporte.

Katherine E. McMahon

, Assistant District Attorney, for the

1 Thirteen against Maxwell Wiggins, Jr., and fifteen against

Swinkels Laporte.

2 Justice Hines participated in the deliberation on this

case prior to her retirement.2

Commonwealth.

BUDD, J. On the evening of August 29, 2007, two armed and

masked men entered a home in Springfield, assaulting and robbing

its occupants at gunpoint. As they left, the homeowner, Tracy

Bennett, who was returning home, was shot and killed. Swinkels

La p orte and Maxwell Wiggins were identified as the assailants

and, following a joint jury trial in the Superior Court

, were

found guilty of murder in the first degree, as well as other

offenses related to the home invasion.

On appeal

, they primarily claim that witnesses were

improperly allowed to identify them as the perpetrators during

the trial. They also raise variou s evidentiary issues, and

claim error in the prosecutor ' s closing argument. Wiggins

further challenges the denial of his motions to sever and for a

mistrial, based on co

- counsel ' s cross

- examination of a witness

regarding a previously suppressed out

- of

- court identification.

Lap orte separately challenges his nonmurder sentence s

. Finally,

both defendants seek relief pursuant to G. L. c. 278, § 33E.

We discern no reversible error and, after a thorough review

of the record, decline to reduce or set aside t he verdicts under

G. L. c. 278, § 33E. Accordingly, we affirm the defendants '

convictions

. H owever, we remand for resentencing Laporte's

convictions of home invasion and armed robbery while masked.3

Background

. We summarize the facts the jury could have

found, reserving certain details for discussion of the issues.

Tracy Bennett lived with her adult daughter, Susan ; her

eighteen year old son, Daniel ; Susan's three young children; and

a seventeen year old family friend, Angel Colon. 3 The defendants

were friends of Daniel and visited him frequently at the Bennett

home, where they would often see Susan, Tracy, and Colon as

well. The defendants and Daniel usually spent their time in

Daniel ' s room , where they played video games on Daniel ' s new

Xbox video gam e console

. In his room, Daniel kept a safe

containing money and marijuana that he sold to friends; the

defendants were aware of the safe and had seen its contents. A

couple of weeks before the killing, Colon thought he overheard

the d efendants discu ssing wanting to take the Xbox.

On the evening of August 29, 2007, Tracy had gone out;

Colon and Susan were watching television in Susan ' s room, and

Daniel was with his girl friend in his room. At approximately

10 P

. M

., two masked African

- American men carrying guns entered

the home. One was short and skinny; the other was tall and

stocky. 4 T hey wore dark hooded sweatshirts, dark pants, and dark

3 Because Tracy, Susan, and Daniel share a last name, we

refer to them using their first names.

4 According to the record, at the relevant time, Laporte was

five feet, eight inches, and weighed approximately 130 pounds.4

baseball caps. One of the sweatshirts had a zipper, and the

other was a pullover, like sweatsh irts Colon had seen Wiggins

and Laporte wear on multiple occasions. T he intruders also wore

black banda nas over their noses and mouths. Colon, who looked

down the hallway to see whether Tracy had come home, saw the two

proceed toward him and thought that Daniel's friends, Wiggins

and Lap orte, were playing a joke. He quickly learned the

intruders ' intentions when the shorter one said, " Wh ere ' s the

fucking shit? We ain ' t playing. This ain ' t no joke, " and

punched him in the face. Colon and Susan were forced to lie

face down on the bed as the shorter assailant took items from

the room, including Susan ' s cell ular tele phone, a piggy bank,

an d a small camcorder.

Simultaneously, the taller intruder banged on Daniel ' s

locked bedroom door and then forced the door open. He pointed a

gun at Daniel ' s face and said, " Give me your shit. I know

you ' ve got it. " The two struggled briefly, then the in truder

hit Daniel in the head with the gun, and Daniel opened the safe.

The intruder instructed Daniel to put cash, marijuana, the Xbox

console

, games, and d igital video disc (DVD) movies into a large

trash bag.

As soon as Colon heard the two men leave the house, he

Wiggins was six feet, one inch tall, and weighed about 200

pounds.5

telephoned 911. As he was on the tele phone with the dispatcher,

he, Daniel, and Susan heard a gunshot. They ran outside and

found Tracy shot in the face and bleeding profusely.

First responders arrived at the scene shortly after 10 P

. M

.

to attend to Tracy and investigate the crime. Colon reported to

an officer that " Swinkels and Max " committed the crimes and told

him where each lived. A t approximately 10:45 P

. M

., officers

arriv ed at Laporte's home, where they found the defendants. A

search of that home yielded items that appeared to have been

stolen from the Bennett home, including an Xbox console and

components, games, DVD movies, cash and coins, jewelry boxes,

and a digital s cale. The officers also collected other items,

including ammunition, three black hooded sweatshirts, and other

clothing.

The State police crime laboratory performed forensic

testing on the sweatshirts. The cuffs of one sweatshirt tested

positive for gun shot residue (GSR) as well as occult blood. A

second sweatshirt also tested positive for occult blood.

Investigators also performed deoxyribonucleic acid (DNA) testing

on swabs taken from the wear areas of the sweatshirts. DNA

testing of samples from th e sweatshirt with GSR did not produce

any conclusive matches. However, the investigators found that

the second sweatshirt contained a DNA profile matching that of

Laporte and a third sweatshirt contained a DNA profile matching6

Wiggins.

At trial, the defe ndants sought to convince the jury that

any identification of the defendants as the intruders was a

mistake. They argued that Daniel had only mentioned their names

to the police when he was asked whether he had any African

American friends and that the police had inappropriately focused

on them. Laporte in particular argued that

, although the stolen

property had been found at his home and his DNA profile matched

a sample from one of the black sweatshirts also found there

, the

robbery could have been com mitted by his brother, which would

also explain those facts. We discuss the defendants ' arguments

in more detail below.

Discussion

. 1. In

- court i dentification of the defendants

.

Although the defendants' theory was misidentification, this is

not a case where the alleged perpetrators were unknown to the

eyewitnesses. Daniel, Susan, and Colon had known the defendants

for some time

. The jury heard testimony that Wiggins and Daniel

had been friends for a couple of years prior to the robbery and

shooting, and Wiggins frequently visited Daniel. Daniel had

known Laporte for approximately six months, during which time

Laporte visited Daniel with Wiggins on multiple occasions

. Both

Susan and Colon saw the defendants when they visited Daniel.

Colon, who had a lready known Laporte for several years , would

sometimes play video games with Wiggins, Laporte, and Daniel in7

Daniel's room. However

, despite the witnesses ' familiarity with

the defendants, compare, e.g., Commonwealth v. Johnson

, 420

Mass. 458, 459

- 460 (1995) (armed robbers were unknown to

defendant), the defense argued that because the intruders wore

masks, the witnesses mistook them for the defendants.

On the night of the break

- in and shooting, each of t he

witnesses viewed each defendant separately i n w hat was later

determined to be an unnecessarily suggestive showup procedure. 5

As a result, t he motion judge suppressed the out

- of

- court

identifications that Colon and Susan had made during the showup

and that Daniel had made afterwards at the police station

.

Nevertheless, the judge allowed all three to make in

- court

identifications of the defendants at trial : Colon identified

both defendants as the intruders ; Susan identified Laporte as

one of the two intruder s; and Daniel identified Wiggins as one

of the intruders

, although the identification was equivocal.

The defendants assert that this was prejudicial error. We

5 The police took each of the witnesses in turn (Daniel,

Colon, Susan, and Daniel's girl friend) to Laporte's residence.

The defendants were handcuffed and shown to each witness from

twelve feet away. After the witness was instructed to look at

the subjec t's height, weight, and build, a police officer asked

each witness what he or she had heard the intruder say, and then

instructed the respective defendant to repeat it to each

witness. The motion judge determined that there was good reason

for the one

- on

- one visual confrontations. However, he found

that the voice identification procedures were both unnecessarily

and impermissibly suggestive, pursuant to Commonwealth v.

Marini

, 375 Mass. 510, 516

- 517 (1978).8

disagree.

Colon testified that despite the masks, he recognized the

intruders as Wiggins and Laporte as they walked tow ard him. He

recognized the defendants by voice, clothes, build

, and the way

they walked. He told police at the scene who the assailants

were and where they lived. Colon further pointed out Laporte as

the intruder who punched him in the mouth during the home

invasion. Although the defendants objected to Colon's in

- court

identifications, there was an independent source for that

identification because Colon unequivocally identified the

defendants as the perpetrators prior to the suggestive showup

procedure

.

In court

, Susan identified Laporte as the shorter intruder

without objection. She testified that although he wore a mask,

she recognized Laporte as he walked down the hall toward her by

his walk, voice, size

, and build. She testified that she told a

p olice officer at the scene that she believed the person who

robbed her was Laporte, but she could not recall who she spoke

with (no officer confirmed her statement). Because Susan's

testimony that she identified Laporte by name before the

suggestive proce dure would be admissible regardless of the

admissibility of her in

- court identification

, we conclude that

there is no substantial likelihood of a miscarriage of justice

arising from defense counsel's failure to object to her in

- court9

identification.

A s for Daniel, on direct examination by the Commonwealth,

and without objection, Daniel identified Wiggins as the intruder

who came into his room. 6 He testified further ( without

objection ) that despite the hood and bandanna, he recognized

Wiggins from Wigg ins's build, skin tone, and voice, but he later

stated that he could not be sure. 7 Although Daniel did not

directly identify either of the defendants prior to the tainted

showup, he effectively made at least an equivocal identification

of Wiggins by his a ctions at the scene of the crime: Daniel

testified that after the shooting he took his mother's keys, got

into her vehicle

, and planned to go to Wiggins' s home to see

whether Wiggins had been the intruder in his room

. When Colon

took the keys away, Danie l telephoned Wiggins's home and

Wiggins's sister in an attempt to locate him. This evidence

would allow a reasonable jury to con clude that, at a minimum,

Daniel had made an equivocal identification of Wiggins as a

6 Daniel also identified both defendants as his friends, and

stated their names for the record.

7 It is worth noting that during his examination, Daniel

wavered back and forth several times on his identification of

Wiggins. He testified that he told police initially that he did

not think the intrude r was Wiggins because it was "kind of hard

to think that my best friend would rob me and

. . . shoot my

mom." And despite having identified Wiggins at trial as the

assailant, he later testified during direct examination that he

still could not be sure tha t Wiggins was the person who came

into his room.10

perpetrator prior to the suggestive proce dure

. As a result, we

conclude that there is no substantial likelihood of a

miscarriage of justice arising from the failure by Wiggins's

attorney to object to an in

- court identification that, viewed in

its totality, also was equivocal.

2

. Daniel's out

- of

- court identification

. Wiggins asserts

that there was error in admitting testimony of a police officer

about Daniel's out

- of

- court identification of Wiggins because it

had previously been suppressed. Wiggins also argues that the

trial judge erred i n denying his motions to sever and for a

mistrial based on co

- counsel's cross

- examination of Daniel that

led to the police officer's testimony. We conclude that there

was no abuse of discretion in denying Wiggins' motions.

Further, we conclude that there was no substantial likelihood of

a miscarriage of justice in admitting evidence of Daniel's out

of

- court identification

.

The out

- of

- court identification

, made during police

questioning following a showup procedure on the night of the

murder

, was suppress ed because the showup was found to be

unnecessarily suggestive. See note 5

, supra

. During cross

examination by Laporte's counsel, Daniel was questioned about

his ability to see the perpetrator given the lighting and the

mask

, as well as his failure to identify Wiggins to the police

as one of the perpetrators until much later in the night, when11

police informed him that his mother had died. This included

multiple questions pertaining to the previously suppressed out

of

- court identification by Daniel of W iggins. 8 Wiggins did not

8 At trial, the following exchange occurred during cross

examination of Daniel by Laporte's counsel:

Q .: "[Y]ou knew the items [shown to you] were stolen;

correct?"

A .: "Yes."

Q .: "So when you saw they had been recovered, your

testimony is somehow the fact that the items were recovered made

you more certain at the time that Maxwell Wiggins robbed you?"

A .: "Yes. "

. . .

Q .: "Isn't it true, sir, that you never told the cops that

you were sure or pretty sure that Maxwell Wiggins robbed you

until after they told you your mom is dead, this is no game, we

need to know who the robbers are, or robber is; is that

correct?"

A .: "I had an idea before that, yes."

. . .

Q .: "And when the police to ld you that your mother was

dead, they just told you right there in the interview room at

the police department; isn't that right?"

A .: "Yes."

Q .: "You obviously reacted with great emotion; isn't that

true?"

A .: "Yes."

Q .: "You were sobbing; right?"12

object to this questioning at the time. Wiggins also did not

object when the prosecutor

, in turn, asked Daniel about his out

of

- court identification of Wiggins during redirect examination

.

However, both defendants later objected to the prosecutor's

questioning of the detective who had taken Daniel's statement

,

which included Daniel's identification of Wiggins. The

defendants also moved for a mistrial. The judge denied the

motion but ordered the prosecutor not to inquire "in the

slightest fashion, regarding anything that [the motion judge]

suppressed."

The next morning, the prosecutor asked the judge to allow

her to question the detective about the identification of

Wiggins, arguing that Laporte had "open [ ed ] the door" and

Wiggins had failed to object. In response, Wiggins moved to

sever and for a mistrial. The judge denied both motions. In

addition, after reviewing the tr anscripts, the judge ruled that

Wiggins had waived his right to enforce the suppression ruling,

at least as to whether Daniel had identified Wiggins at the

police station. The judge allowed the prosecutor to elicit the

same testimony as Laporte's counsel, i.e., that after Daniel

A .: "Yes."

Q .: "And then you gave the name Maxwell Wiggins as being

the robber from your room; is that right?"

A .: "Yes. "13

heard that his mother had died, he identified Wiggins as the

robber. 9

9 The prosecutor asked the detective the following:

Q .: "And did he tell you how he knew Maxwell Wiggins?"

A .: "Yes."

Q .: "And did he describe Maxwell Wiggins for you?"

A .: "Yes."

Q .: "And did he tell you he had seen Maxwell Wiggins

earlier the night this happened?"

A .: "That's correct."

. . .

Q .: "And then at some point you told him that his moth er

had passed away, is that right?"

A .: "That's correct."

Q .: "What was his demeanor then?"

A .: "At that point he even became more upset and a lot of

crying."

Q .: "And after he was allowed to compose himself, you

spoke to him further?"

A .: "That's correct."

Q .: "And was it then that you began a typed statement from

him?"

A .: "That's correct."

. . .14

Laporte waived any objection to the admission of Daniel's

out

- of

- court identification based on his counsel ' s cross

examination of Daniel on this topic ; thus, ha d the defendants

been tried separately, Laporte would have "opened the door,"

allowing the Commonwealth to respond. See Commonwealth v.

Alcantara

, 471 Mass. 550, 557 n.6 (2015)

, citing Commonwealth v.

Williams

, 379 Mass. 600, 604

- 60 5 (1980) (where defendant waives

issue by using challenged statements, he "open[s] the door to

their use by the Commonwealth")

. Accord Pettijohn v. Hall

, 599

F.2d 476, 481 (1st Cir.), cert. denied, 444 U.S. 946 ( 1979 )

("Once a defendant attempts to introduce test imony that is

intimately interrelated with previously suppressed testimony,

the defendant waives his objections to the introduction of that

related evidence"). Wiggins contends

, however, that Laporte 's

counsel's actions could not waive Wiggins' s rights, f or due

process reasons

. We agree. Cf. Commonwealth v. Collado

, 426

Mass. 675, 676 (1998) (defendant's waiver of right to jury trial

did not affect codefendant's right). Accord United States v.

White

, 887 F.2d 267, 269

- 270 (D.C. Cir. 1989).

However, alt hough Laporte could not waive Wiggins' s rights,

Q .: "And in the course of taking that statement, after he

was told that his mother died, is that when he said Maxwell

Wiggins was the robber in his room?"

A .: "That's correct."15

Wiggins failed to object to his codefendant's cross

- examination

of Daniel

, to the prosecutor's redirect examination, o r to

Daniel's in

- court identification of Wiggins. As a result, where

admission of any of the related identifications would have been

error, we consider how those errors could have combined to cause

a substantial likelihood of a miscarriage of justice in the

context of the evidence adduced at trial

. 10 See Commonwealth v.

DePina

, 476 Mass. 614, 623 (2017). Based on Daniel's in

- court

identification of Wiggins as one of the perpetrators

, Daniel's

actions to check Wiggins' s whereabouts following the killing,

and the fact that Colon named Wiggins to police officers at the

scene of the crime, the jur y had a reasonable basis to conclude

that Wiggins had participated in the robbery. In this context,

Laporte's line of questioning did not cause a substantial

likelihood of a miscarriage of justice

. We reach the same

conclusion as to the Commonwealth 's examination of the police

detective on this issue

, as the prosecutor was not permitted to

10 Although Wiggins did not make a claim of ineffective

assistance of counsel on appeal, see Commonwealth v. Francis

,

411 Mass. 579, 584 (1992) ("pursuant to [G. L. c. 278,] § 33E,

we afford such appeals plenary review"), to the extent that

counsel's failure to object to Laporte's and the Commonwealth's

lines of questioning could support such a claim, this would not

change our analysis. See Commonwealth v. Holley

, 476 Mass. 114,

121 ( 2016)

, citing Commonwealth v. Wright

, 411 Mass. 678, 682

(1992), S

. C

., 469 Mass. 447 (2014) ("under § 33E review, an

ineffective assistance of counsel claim is reviewed under

substantial likelihood of miscarriage of justice standard").16

inquire beyond the testimony that had already been elicited by

Laporte. 11 Compare note 8 with note 9

, supra

.

Further, i n the circumstances, we conclude that the t rial

judge did not abuse his discretion in denying Wiggins' s renewed

motion for a mistrial and his motion to sever. See Commonwealth

v. Gallagher

, 408 Mass. 510, 517 (1990) (mistrial is subject to

judge's discretion); Commonwealth v. Jackson

, 391 Mass. 749, 759

(1984)

, quoting Commonwealth v. DiPietro

, 373 Mass. 369, 387

(1977) (ground for mistrial "must be called to the attention of

the judge immediately, or when the aggrieved party first learns

of it"); Commonwealth v. Moran

, 387 Mass. 644, 658 (1982) (abuse

of discretion upon timely motion to sever). Wiggins failed to

object in a timely manner to both the examinations by the

codefendant and the Commonwealth.

The failure to make a timely objection to Laporte's

examination of Daniel is particularly not eworthy given that

there was a break shortly after the testimony in question; thus,

any concern about drawing attention to the testimony in front of

11 Laporte elicited the details of this identification to

show the jury that Daniel had only identified Wiggins as one of

the intruders because he was distressed about his mother's

death. In fact, Wiggins later elicited testimony to emphasize

that Daniel had not identified him prior to learning about the

death. Further, Daniel testified that he was still not sure

whether Wiggins was one of the intruders. This, combined with

the limitation on the prosecutor's inquiry, meant that there is

no substantial likelihood of a misca rriage of justice from

allowing the prosecutor to elicit the identification.17

the jury could have been mitigated by raising the issue and

moving to sever while the jury were not present

. In addition,

Wiggins' s counsel i ndicated that he had discussed h is concern s

regarding the examination with Laporte's counsel during the

break, yet he did not raise the issue with the court until four

days later, when the Commonwealth pointed out Wiggins ' s failure

to object. Because Wiggins did not make these motions in a

timely manner, the judge reasonably could have infer red that

Wiggins had made a conscious decision not to object. Therefore,

there was no abuse of discretion in denying Wiggins' s motio ns.

3

. DNA evidence

. Laporte argues separately that the judge

incorrectly admitted inconclusive DNA evidence in the form of a

chart showing DNA test results from one of the sweatshirt s

. The

judge had excluded testimony that DNA testing of the sweatshirt

was inconclusive as to Laporte. 12 However, the jury were exposed

to a chart showing that Wiggins and the victim were excluded as

sources of the sample from one sweatshirt, but also showed that

the results were inconclusive as to Laporte. After the chart

12 Deoxyribonucleic acid (DNA) test results are inconclusive

if they neither include nor exclude a person as a match due to

an insufficient or degraded sample. Commonwealth v. Alm onte

,

465 Mass. 224, 238 (2013). With limited exceptions, such

evidence is normally too prejudicial to be admissible. See

Commonwealth v. Nesbitt

, 452 Mass. 236, 253

- 254 (2008).18

was introduced alongside testimony from a State analyst, 13 but

before the chart was given to the jury during deliberations, the

judge redacted Laporte's DNA profile from the chart. Laporte's

profile was not redacted from other exhibits, which sho wed that

Laporte was excluded from a second sweatshirt sample and matched

the major DNA profile on a third sweatshirt sample. He argues

that because the jury had seen his DNA profile on the chart in

question before it was redacted, and because the jury ha d his

profile available to them from other exhibits, they may have

tried to compare his profile to the inconclusive results. This

argument fails.

The Commonwealth was entitled to have the analyst testify

as to those results that showed an exclusion or a match, and the

exhibit in question showed the full comparison that was made at

the State crime laboratory. Moreover, the analyst did not

testify as to Laporte's result compared to the sweatshirt, and

the judge redacted Laporte's profile before the exhibit went to

the jury. Because the jury were entitled to see Laporte's

profile with respect to the other DNA comparisons, there was no

error in declining to redact his profile from the other

13 The analyst testified that the decedent was included in a

sample from one area of the sweatshirt, and that the decedent

and Wiggins were excluded from a sample of another area from the

sweatshirt. She did not testify as to any results for Laporte

from that sample.19

exhibits. 14

4

. Bandannas

. The defendants argue that the judge erre d

in allowing the Commonwealth, over objection, to elicit

testimony that someone who was not a member of law enforcement

removed two bandannas from Laporte's property bag while Laporte

was in custody. The bandannas had been collected along with the

rest o f Laporte's personal items during booking. More than one

year later, someone removed the bandannas when trading new

clothes on behalf of Laporte. 15 The Commonwealth offered the

testimony to show why the bandannas were not available as

evidence. The defendants argue that

, because they did not

challenge the police investigation as inadequate (also known as

a Bowden challenge, see Commonwealth v. Bowden

, 379 Mass. 472

[1980])

, the evidence was irrelevant and highly prejudicial. We

disagree.

Evidence i s only admissible if it is relevant, that is, "if

(a) it has any tendency to make a fact more or less probable

14 Even if there had been error, it would have been harmless

vi ewed in the context of the trial as a whole. The State

analyst did not testify as to the inconclusive result. However,

there was a match between Laporte's DNA and another sweatshirt

that was found in the same location and showed a positive result

in the presumptive test for blood. Colon testified that Laporte

had worn that sweatshirt during the robbery and on other

occasions.

15 A correction officer testified that the sheriff's

department required that any new items brought to inmates must

be traded for old items from the inmate's property bag.20

than it would be without the evidence and (b) the fact is of

consequence in determining the action." Mass. G. Evid. § 401

(2017). See id

. at § 402. See Commonwealth v. Carey

, 463 Mass.

378, 387 (2012). The defendants argue that the evidence

regarding the removal of the bandannas was not relevant to the

case. In their view, the jury only needed to hear that the

bandannas were found on Laporte w hen he was arrested. They also

argue that there was no evidence that these bandannas were the

ones involved in the incident. However, the very fact that the

defendants contested the lack of evidence surrounding the

bandannas is what made their removal re levant to rebut the

defendants' attempted Bowden defense. 16 At trial, the defendants

argued at sidebar that the perpetrators had been observed

wearing bandannas, but not necessarily the bandannas that had

been taken from Laporte's property bag. T he bandan nas had been

removed, so the Commonwealth could not introduce them in

evidence, nor could it test the bandannas for gunshot residue,

blood, or DNA in an attempt to show that they were the bandannas

16 See Commonwealth v. Silva

- Santiago

, 453 Mass. 782, 803

n.25 (2009); Commonwealth v. Bowden

, 379 Mass. 472, 486 (1980).

Even though the judge ultimately determined that the defendants

had not made a showing sufficient to warrant a Bowden

instruction, we are unpersuaded by the defendants' argument that

there was no attempt to make a Bowden chall enge; the defendants

clearly claimed throughout trial that there were problems with

the police investigation, and the principal theory of the

defense was misidentification, yet the bandannas had not been

tested.21

used during the home invasion. 17 Because it appeared that the

defendants attempted to raise a Bowden defense, and because they

attacked the integrity and adequacy of the investigation

throughout the trial, the Commonwealth was entitled to respond.

See Commonwealth v. Avila

, 454 Mass. 744, 754

- 755 (2009);

Commonw ealth v. Silva

- Santiago

, 453 Mass. 782, 803 n.25 (2009).

The defendants further argue that even if the removal of

the bandannas from Laporte's property bag were relevant to the

case, the judge erred in admitting that evidence because its

probative value was substantially outweighed by the danger of

unfair prejudice. See Mass. G. Evid. § 403 (2017)

. See Carey

,

463 Mass. at 387

- 388

. In particular, they argue that the jury

may have interpreted the removal of the bandannas as showing

consciousness of guilt

. Indeed, the judge recognized that

telling the jury that it was a member of Laporte's family who

exchanged clothing for the bandannas could be unduly prejudicial

to the defendants. As a result, following a lengthy sidebar

discussion

, the judge limited t he prosecutor to eliciting

17 To the extent that the defendants argue t hat the evidence

of removal was irrelevant because the Commonwealth knew about

the bandannas immediately after the arrest but did not seize or

test them, their argument is misplaced, as the bandannas were

not lost or destroyed as a result of the Commonweal th's

negligence. Contrast Commonwealth v. Olszewski

, 401 Mass. 749,

756 (1988) ("loss and destruction of highly relevant evidence by

the Commonwealth and its agents defeated the defendant's

opportunity effectively to present a defense").22

testimony that someone who was not a member of law enforcement

picked up the bandannas, so long as the witness also explained

to the jury that the policy required an exchange of clothes.

The judge reasoned that omitting the fami ly member's name and

including the inventory policy would "soften[] any prejudicial

impact." The judge also gave an instruction immediately after

that testimony to warn the jury not to draw any negative

inference against the defendants. See Commonwealth v. Tennison

,

440 Mass. 553, 558 (2003)

, citing Commonwealth v. Degro

, 432

Mass. 319, 328 (2000) ("jury are presumed to follow the judge's

instructions"). In this context, where the judge carefully

considered the options to reduce any possible prejudice to the

defendants, there was no abuse of discretion. See Commonwealth

v. Bresilla

, 470 Mass. 422, 436

- 437 (2015).

5

. Autopsy photograph

. The defendants claim that the

judge erred in admitting an autopsy pho tograph of the victim.

The photograph showed how the victim's face looked after the

medical examiner had removed the sutures and other fixes used by

the emergency medical technicians who sought to stem the

bleeding and save the victim's life. With the sut ures removed,

the photograph showed a portion of the inside of the victim's

mouth and sinus cavity

. In the defendants' view, the photograph

was cumulative of other evidence and was so gruesome and

inflammatory that its probative value was outweighed by th e23

potential for prejudice. There was no error.

We have warned judges to be especially careful regarding

photographs taken after a medical examiner has modified the

victim's body in the course of an autopsy. See Commonwealth v.

Carlino

, 429 Mass. 692, 69 6 n.2 (1999), citing Commonwealth v.

Bastarache

, 382 Mass. 86, 106 (1980). In Carlino

, supra , for

example, photographs of damaged internal organs were unnecessary

where the Commonwealth had introduced other "photographs of the

exterior of the body,

. . . a chalk depicting the location of

the wounds, and extensive expert medical testimony as to the

nature, extent, and severity of the wounds." However, "we do

not exclude evidence just because it is gruesome or

inflammatory." Id

. Therefore, the judge may admit a photograph

if it is relevant, not gratuitous, and probative beyond its

"distasteful nat ure." Id

. See Bastarache

, supra

.

In this case, although the photograph did not show

alterations of the nature made in Carlino and Bastarache

, the

judge recognized that it still held a potential for prejudice.

Compare Carlino

, 429 Mass. at 696 (photogra ph showed victim's

internal organs and abdominal cavity); Bastarache

, 382 Mass. at

105

- 106 (photograph showed inside of skull after brain had been

removed to show bullet holes). In fact, the judge initially

declined to allow the Commonwealth to introduce the photograph

through the State medical examiner. However, he eventually24

changed that ruling because one of the Commonwealth's witnesses,

a State expert in ballistics, explained that the photograph was

an important tool for determining the type of firear m and force

used, as well as the distance from the weapon to the victim's

face. During a lengthy discussion with the prosecutor and both

defendants' counsel, the judge reasoned that these facts were

probative of premeditation and whether the killing had b een

committed with extreme atrocity or cruelty. He also noted that

the ballistics expert had stated that the autopsy diagrams alone

had been insufficient for him to make the determinations. As a

result, the judge admitted the autopsy photograph in eviden ce

and gave a contemporaneous cautionary instruction to the jury.

In light of the judge's careful analysis of the relevance

and probative value of the photograph before admitting it in

evidence, and the curative instruction, there was no abuse of

discret ion.

6

. Closing argument

. The defendants argue that the

prosecutor misstated key identification evidence in her closing

argument. In particular, they contend that the Commonwealth

improperly argued that the jury "kn[e]w with absolute certainty"

that Colon identified the defendants as the intruders because,

she argued, the police sought out the defendants based on

Colon ' s identification of them in the immediate aftermath of the25

shooting. 18 In their view, this was a misstatement of the

evidence because, they claim, Daniel's statement to the police,

rather than Colon's, could have led the police to the

defendants. Because the defendants did not object to this

portion of the argument at trial, they must show that the

alleged misstatement or counsel's fail ure to object caused a

substantial likelihood of a miscarriage of justice.

Commonwealth v. Carmona

, 428 Mass. 268, 273, 276 (1998). This

they cannot do.

Daniel testified that when he spoke to the police at the

crime scene he identified only Wiggins, and he did so in

response to the police asking if he had any African

- American

friends; thus, he identified Wiggins as a friend, not a

suspect. 19 In contrast, Colon and a police officer both

18 The prosecutor said:

"[A]s you look to decide this case, start with the

things that you know for certain, the things that are

given.

. . . And you know with absolute certainty that

Angel Colon identified those two men, the defendants, as

the intruders to police at th e scene. Angel Colon told

you. Officer Ed Kalish told you. And, ladies and

gentlemen, you know that that happened. You know Angel

Colon identified them because the police went looking for

the two of them."

19 However, officers present at the scene tes tified that

Daniel named both defendants. Whether the jury believed Daniel

gave one or both names to the police ultimately does not matter,

as the police still would have been searching for both

defendants.26

testified that when Colon spoke to police at the crime scene, he

name d the defendants as the intruders and told police the

streets where the defendants lived. According to police

testimony, after speaking with Daniel and Colon they sought both

of the defendants.

"A prosecutor may argue 'forcefully for a conviction based

o n the evidence and on inferences that may reasonably be drawn

from the evidence.'" Commonwealth v. Taylor

, 455 Mass. 372, 383

(2009), quoting Commonwealth v. Kozec

, 399 Mass. 514, 516

(1987). Here, the police were looking for both Laporte and

Wiggins, no t just Wiggins. In addition, it was Colon who gave

the police the names of the streets where the defendants lived.

Thus, it was fair for the prosecutor to argue that the jury

could infer that the police based their search for the

defendants on Colon's st atement (rather than Daniel's). See

Commonwealth v. Rolon

, 438 Mass. 808, 816 (2003) (prosecutor may

"point to reasons why a witness's testimony, or portions of a

witness's testimony, should logically be believed"). Further

,

the judge instructed the jury that counsel's arguments are not

evidence. In any event, even if the defendants were correct,

their argument nonetheless indicates (as does the

Commonwealth's) that someone had identified them at the scene,

so they have failed to establish how any error would have

influenced the jury's verdict s

.27

7

. Laporte's sentence

. Because Laporte was a juvenile at

the time of the offense, his sentence was revised, and he is

eligible for parole on his conviction of murder after fifteen

years. See Miller v. Alabama

, 567 U.S. 460, 465 (2012);

Commonwealth v. Brown

, 466 Mass. 676, 688

- 689 (2013)

, S

. C

., 474

Mass. 576 (2016) ; Diatchenko v. District Attorney for the

Suffolk Dist

., 466 Mass. 655, 658

- 659 (2013)

, S

. C

., 471 Mass. 12

(2015)

. Laporte was also convicted of ot her crimes, including

home invasion and robbery while masked, for which he was

sentenced to from thirty to thirty

- five years and from twenty to

thirty years in S tate prison

, respectively, and is eligible for

parole after thirty years and twenty years, resp ectively. 20

Laporte argues that the Eighth and Fourteenth Amendments to the

United States Constitution and a rt

. 26 of the Massachusetts

Declaration of Rights require reduction of the minimum terms on

the latter sentences to no more than fifteen years, to allow for

the same parole eligibility as does his conviction of murder.

20 Laporte's sentence for home invasion was init ially to be

served from and after the life sentence, with sentences for the

other nonmurder convictions to be served concurrently with the

sentence imposed for home invasion. These sentences were all

changed to be made concurrent with the murder sentence by the

Appellate Division of the Superior Court. Following our holding

in Diatchenko v. District Attorney for the Suffolk Dist

., 466

Mass. 655, 658

- 659 (2013)

, S

. C

., 471 Mass. 12 (2015)

, the

Department of Correction noted that Laporte would be eligible

fo r parole after fifteen years on his life sentence. Parole

eligibility for the other convictions remains unchanged.28

As in Commonwealth v. Costa

, 472 Mass. 139, 143

- 146 (2015),

the original sentencing judge could not have foreseen our

decisions in Diatchenko and Brown

. At the time the defendant

was sentenced on his nonmurder convictions, the sentencing judge

likely believed that the defendant would never be eligible for

parole on his murder conviction. See Costa

, supra

. Thus, the

judge may not have given the same consideration to how the

defendant's nonmurder convictions would affect his eligibility

for parole. Id

. See Commonwealth v. Perez

, 477 Mass

. 677, 682

-

68 7 (2017). As a result, we vacate Laporte's nonmurder

sentences and remand for resentencing in light of his revised

murder sentence

. See Costa

, supra at 143.

8

. G. L. c. 278, § 33E

. Even though Wiggins was an adult

at the time of the crime, he argues that it is unfair for

Laporte to receive the benefit of parole eligibility while

Wiggins does not, as Wiggins is only months older than Laporte.

In his view, we should exercise our power under G. L. c. 278,

§ 33E

, to reduce his conviction so their sentenc es will match.

Although we recognize his point, particularly as contrasted

against Laporte's juvenile status at the time of the homicide

,

the fact that Wiggins was only a few months past his eighteenth

birthday does not, in itself, give us reason to reduc e his

conviction. See Commonwealth v. Chukwuezi

, 475 Mass. 597, 610

(2016)

, citing Roper v. Simmons

, 543 U.S. 551, 574 (2005) (age29

of eighteen "is the point where society draws the line for many

purposes between childhood and adulthood"); Brown

, 466 Mass. at

684

- 685 (Legislature's "comprehensive sentencing scheme

. . .

remains valid as applied to adults"). Thus, we decline to

exercise our § 33E power based on the comparative ages of the

defendants.

We have considered the defendants' other arguments and f ind

them without merit. Th erefore

, we decline to exercise our power

under § 33E to reduce the defendants' verdicts or grant them a

new trial.

Conclusion

. For the reasons stated above, we affirm the

defendants' convictions. However, we remand Laporte's

convictions of home invasion and armed robbery while masked for

resentencing in accordance with Perez

, supra

.

So ordered

.