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SJC-09926

COMMONWEALTH vs. THOMAS LALLY.

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

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

Homicide. Deoxyribonucleic Acid. Evidence, Prior consistent 

statement, Prior misconduct, Subsequent misconduct.

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

counsel, Argument by prosecutor, Redaction.

Indictment found and returned in the Superior Court 

Department on January 21, 2003.

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

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

Kenneth J. Fishman, J.

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

defendant.

Pamela Alford, Assistant District Attorney, for the 

Commonwealth.

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

jury of murder in the first degree on theories of deliberate 
2

premeditation and extreme atrocity or cruelty.1 Represented by 

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

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

acid (DNA) evidence;

2 (2) admission of an audiotape of prior 

consistent statements made by the Commonwealth's principal 

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

cooperating codefendant's plea agreement without proper 

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

ineffective assistance of counsel for improperly advising the 

defendant to testify and for failing to call surrebuttal 

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

judge denied the defendant's motion after an evidentiary 

hearing. The defendant appealed and it was consolidated with 

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

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

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

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

 

1 The defendant also was indicted for conspiracy to commit 

murder, but that charge was placed on file.

2 The defendant also argues that he was deprived of a fair 

trial due to prosecutorial misconduct in this regard.

3 The defendant also argued in his motion for a new trial 

that counsel was ineffective with respect to joint venture 

instructions and certain motions. The judge rejected those 

claims, and the defendant does not dispute that decision on 

appeal.
3

Background. We recite the facts as the jury could have 

found them, reserving other facts for later discussion. On 

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

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

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

to be an accident.

The night before the murder, the defendant slept at the 

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

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

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

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

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

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

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

younger than the defendant and two or three years younger than 

Anthony. Both Weir and the defendant lived with their own 

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

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

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

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

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

 

4 Because Anthony Calabro shares a surname with the victim, 

we refer to him by his first name.

5 Anthony's grandmother lived in the first-floor apartment 

and his uncle lived in the third-floor apartment.
4

The defendant often commented about how he and Anthony 

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

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

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

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

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

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

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

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

woke at approximately noon. That afternoon, the defendant 

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

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

victim saw the defendant enter the kitchen with her frying pan 

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

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

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

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

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

Weir testified that he did not assist the victim because he 

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

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

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

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

stairs, which were infrequently used. Weir testified that he 
5

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

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

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

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

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

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

Meadowbrook Pond in Norton.

Anthony and the defendant later returned to the victim's 

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

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

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

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

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

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

that he received the injuries during a fight with Anthony the 

prior evening.

A State police trooper noted suspicious circumstances in 

connection with the claim that the deceased had fallen down the 

stairs, including dust covering the handrail, the absence of 

blood on the wallpaper or stairwell although the victim suffered 

significant blood loss, and a urine stain that was not 

anatomically correct for the position of the body. Conversely, 

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

wearing footwear that was in "deplorable shape" and there was a 
6

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

the time.6 He requested a full autopsy.

The medical examiner performed a rape kit to help to 

determine the cause of death, which included taking hair 

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

anus; and fingernail clippings and scrapings. He noted blunt 

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

cervical vertebra, rib and clavicle fractures, and injuries to 

her left hand. After determining that the majority of the 

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

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

"fall down stairs."7

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

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

varying explanations for the scratches on his face, telling some 

that he received the scratches during a fight with Anthony and 

others that his dog scratched him.

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

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

purchased a truck for the defendant and spent approximately 

 

6 Two neighbors and Weir testified that the victim routinely 

walked down the back stairs to remove her trash using small 

bags.

7 The medical examiner explained that the injury to the top 

of the victim's head was not consistent with a fall.
7

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

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

was sold, in July, 2002. Anthony received approximately 

$250,000 in proceeds from the sale.

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

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

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

defendant about what he had observed, the two went to 

Meadowbrook Pond and the defendant threw the objects in the 

water.

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

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

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

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

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

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

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

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

recorded the pertinent parts of their conversation.

During the meeting, Weir told Morel that the defendant had 

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

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

Morel to Meadowbrook Pond and pointed to the location where the 

items were disposed of after the murder. Morel later 
8

accompanied police to the pond and the police recovered a 

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

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

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

Based on this information, Weir and the defendant were 

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

first degree. Weir agreed to cooperate with police in exchange 

for having his charge reduced to manslaughter with a prison 

sentence of ten years.

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

were compared to male DNA found on three samples from the 

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

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

excluded as contributors to the perianal swab, which had been 

contaminated with male DNA from the State police crime 

laboratory. Weir, Anthony, and Morel were excluded as 

contributors to the fingernail scrapings and the fingernail 

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

The defendant testified that Weir killed the victim and 

that he received the injuries observed by police the night of 

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

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

that made her nervous and his stepfather testified to numerous 

arguments between Weir and the defendant.
9

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

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

appeal, the defendant does not contest the sufficiency of the 

evidence at trial. Rather, he contends that because the 

asserted trial errors deprived him of a fair trial and that 

trial counsel provided ineffective assistance, the judge wrongly 

denied his motion for a new trial.

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

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

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

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

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

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

motion "to determine whether there has been a significant error 

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

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

whether any such error creates a substantial likelihood of a 

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

779, 781 (2012).

Where the defendant's claims are based on ineffective 

assistance of counsel, and none of the asserted errors was 

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

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

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Commonwealth
10

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

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

lenient standard that focuses more narrowly on whether there was 

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

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

ineffectiveness rests with the defendant. See Commonwealth v. 

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

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

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

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

DNA results must be presented with statistics explaining the 

significance of that evidence, the defendant challenges the 

admission of the polymerase chain reaction (PCR) and Ychromosome short tandem repeat method (Y-STR) results. He 

argues that the DNA evidence was erroneously admitted under 

Mattei because the PCR result was admitted without any 

accompanying statistical references to the significance of the 

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

statistical information. He contends also that the prosecutor 

compounded these errors by misstating the DNA evidence in the 

opening statement and closing argument. In addition, the 

defendant argues that his counsel provided ineffective 

assistance in connection with the admission of the DNA evidence. 

More specifically, he contends that defense counsel was 
11

ineffective for failing adequately to inform himself about the 

admissibility of such evidence, failing to object to or 

otherwise seek exclusion of the evidence, and failing to crossexamine the Commonwealth's DNA expert competently.

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

former DNA analyst with Cellmark Diagnostics laboratory, which 

later became Orchid Cellmark (Cellmark), testified that the 

defendant could not be excluded as a contributor to DNA samples 

taken from the victim's fingernail scrapings and fingernail 

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

performed PCR testing, which compares thirteen regions of the 

DNA taken from the victim against submitted profiles to 

establish primary and secondary profiles and determine whether a 

suspect could be excluded as a contributor. Because the PCR 

test results were inconclusive for the fingernail clippings, 

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

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

primary profile from the mixture of male and female DNA.

From the fingernail scrapings, PCR testing showed that the 

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

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

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

source" of those secondary profiles. Hickey did not provide 

statistical information to demonstrate the relevance of this 
12

nonexclusion PCR evidence, explaining that Cellmark does not 

provide statistics on secondary profiles.

From the fingernail clippings, PCR testing was inconclusive 

in that no primary or secondary profiles could be determined. 

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

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

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

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

tested." Hickey provided context for this result through 

statistical analysis, wherein he compared the results of the YSTR testing to a database of known DNA profiles and determined 

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

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

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

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

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

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

a reasonable degree of scientific certainty that a DNA profile 

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

DNA results cannot discriminate among members of the same 

paternal line and the statistical likelihood is never any 

greater than the database available for comparison.

Hickey also testified to contamination of the perianal 

swab. Specifically, he stated that the defendant, Weir, 
13

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

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

police crime laboratory asked Hickey to analyze whether the 

sample could have been contaminated by employees of Cellmark or 

the crime laboratory. The swab was consistent with the DNA 

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

contaminating employee testified that he had handled all samples 

that were taken from the victim. Additionally, the employee 

explained a pretrial revision to his DNA analysis. He testified 

that he first identified the presence of seminal fluid from the 

vaginal and perianal swab. However, he later updated his 

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

can be found in urine.

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

contamination and Hickey's testimony at trial that the defendant 

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

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

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

Counsel's cross-examination of the crime laboratory employee 

highlighted the contamination and change in identification from 

seminal fluid to the P-30 protein.

The prosecutor commented on the DNA evidence in her opening 

statement and closing argument. In her opening statement, she 

told the jury that the evidence would prove that the defendant 
14

was the "major contributor" to the right fingernail clippings 

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

argued that Weir and Anthony were excluded as contributors under 

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

either. She continued that the reference to nonexclusion was a 

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

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

all the numbers from [the defendant] correspond to the 

fingernail clippings."

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

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

forensic scientist retained in 2005 by trial counsel and in 2009 

by postconviction counsel, and from trial counsel for the 

defendant. Dr. Robin Cotton, the former Cellmark laboratory

director, testified for the Commonwealth.

As to the PCR evidence from the fingernail scrapings, the 

defendant argued that it was error to admit the evidence without 

statistics. In that regard, the defense presented evidence that

Bourke alerted trial counsel in a pretrial memorandum to the 

lack of statistics, advised that "the correct statistic to 

perform on mixed samples is the combined probability of 

inclusion," and questioned the admissibility of such evidence 

without statistics. The memorandum noted that the statistical 

information was important because the "small to limited number 
15

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

result in very modest random match probabilities." Cotton

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

probabilities that are "very much smaller" than the large 

numbers calculated using a full profile. She also testified 

that statistical information could have been provided at the 

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

was not routinely provided when the applicable report was 

written.

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

results from the Y-STR testing were erroneously admitted without 

a "confidence interval" allowing for population frequency 

calculation. The results were presented using a method known in 

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

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

"confidence interval" adjusts that result to account for 

sampling errors and identical profiles being passed through a 

paternal line, and thus increases the likelihood that the same 

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

 

8 Dr. Michael J. Bourke testified that there are several 

methods available to calculate a confidence interval. Under the 

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

and the ninety-five per cent calculation suggested by the 

defendant, Bourke testified that the results of the confidence 

interval calculation generally produces a result showing that it 

is approximately three times more likely that a DNA profile may 
16

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

(Y-STR) Interpretation Guidelines, 11 Forensic Science 

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

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

method results "would be misleading without the confidence 

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

deficiencies, but testified that he would have had he been 

asked. Cotton testified that a confidence interval could have 

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

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

did not provide for such a calculation.

The motion judge rejected the defendant's claims, 

concluding that the defendant had failed to demonstrate that any 

attempt to exclude the DNA evidence would have been successful 

because the defendant did not establish that the Commonwealth, 

if challenged, would have been unable to provide the requested 

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

The judge concluded that trial counsel was not ineffective 

because questioning the DNA evidence was not likely to 

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

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

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

 

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

method.
17

although the judge found that the prosecutor did misstate the 

evidence, he concluded that the error was unlikely to have 

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

central to the Commonwealth's case."

c. Analysis of the DNA claims. Although Mattei was 

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

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

that DNA results indicating a DNA "match" include accompanying 

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

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

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

nonexclusion DNA results from PCR testing without statistics, 

especially where the jury heard evidence of "match" statistics 

placing the likelihood of occurrence in the quadrillions and 

quintillions, because the jurors could be misled into thinking 

that the nonexclusion DNA results are similarly conclusive. 

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

is "of little or no value without reliable evidence indicating 

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

nonexclusion evidence presented without statistics could be even 

more prejudicial than match evidence because jurors could be 

misled into thinking that nonexclusion results are as 
18

significant as the large numbers typically applicable to match 

results.9 Id. at 856.

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

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

evidence without statistical information providing context for 

that result. The Commonwealth argues that there was no error 

because counsel made a reasonable tactical decision not to 

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

statistical information could have been provided had the DNA 

evidence been challenged on that ground. We agree with the 

defendant and reject the Commonwealth's argument for two 

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

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

Although neither side presented evidence at the hearing on the 

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

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

random match probability based on the limited number of loci 

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

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

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

 

9 Prior to the defendant's trial, other jurisdictions 

required reliable statistics for nonexclusion results. See, 

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

(remanding for reliability determination of database used to 

demonstrate required statistics to accompany nonexclusion 

testimony).
19

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

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

actual statistics before making a decision whether to challenge 

the evidence. Second, even if the Commonwealth could have 

provided statistics had the DNA evidence been challenged on that 

ground, defense counsel "might have accomplished something 

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

the jury would have been presented with statistical evidence of 

small probabilities instead of an inference that the numbers 

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

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

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

 

10 Although the defendant's burden in demonstrating 

ineffective assistance of counsel for failing to file an 

evidentiary motion has been stated as a requirement to 

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

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

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

question is whether filing of the motion "might have 

accomplished something material for the defense." See

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

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

case, the Commonwealth asserts that it would have presented 

statistical evidence if the polymerase chain reaction (PCR) 

results were challenged, and the record reflects that such 

evidence would have shown "very modest random match 

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

numbers often presented with PCR testing. Accordingly, even if 

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

evidence would have been unsuccessful because the Commonwealth 

could have provided the statistical information, the result of a 

challenge would have accomplished something material for the 

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

at 852 (lack of nonexclusion statistics could mislead jury into 
20

Because this error is intertwined with the defendant's 

other challenges relating to the DNA evidence, we reserve our 

discussion regarding prejudice until after we discuss the 

remaining claims.

ii. Y-STR evidence. The defendant next argues that the YSTR results should not have been admitted without a confidence 

interval. We disagree. Our case law requires that nonexclusion 

DNA evidence be presented to a jury with "reliable accompanying 

evidence as to the likelihood that the test could not exclude 

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

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

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

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

satisfied because the counting method was a reliable method for 

providing such evidence at the time of trial.11 Although 

 

believing results are similarly significant to "exceedingly 

infinitesimal random match probabilities" routinely presented 

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

Commonwealth would not have been able to produce the statistics 

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

testimony. Whether or not this factual assertion is valid, 

counsel's failure to challenge the PCR results satisfied the 

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

unlikely that a motion in limine would have been granted. 

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

behavior fell "measurably below that which might be expected 

from an ordinary fallible lawyer").

11 Dr. Robin Cotton testified that scientific literature at 

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

Although Bourke provided evidence that scientific literature 
21

guidelines now suggest the use of a confidence interval to make 

the statistics from the counting method more conservative, see 

Y-STR Guidelines, supra,

12 the counting method as explained in 

Hickey's trial testimony provided sufficient context for the 

results.

Hickey provided context for the Y-STR nonexclusion result 

by providing the database frequency counts to the jury and 

explaining that "count" information is limited because it is 

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

is identical through a paternal line. Although a confidence 

interval is more favorable to defendants because it corrects for 

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

 

existed at the time of trial discussing the use of confidence 

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

that confidence intervals were routinely used at that time.

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

defendant introduced an article written in 2007 that recommends 

the use of a confidence interval calculation to "correct for 

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

defendant also submitted guidelines promulgated in 2009 by the 

Scientific Working Group on DNA Analysis Methods, an influential 

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

without a confidence interval is acceptable as a factual 

statement regarding observations in the database" but a 

"confidence interval corrects for database size and sampling 

variation" and provides methods to calculate a confidence 

interval if such is applied. See Scientific Working Group on 

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

Interpretation Guidelines, 11 Forensic Science Communications, 

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

13 Using the Caucasian database in this case as an example, 

the confidence interval calculation increases the likelihood of 
22

not unreliable, nor was it likely to mislead jurors into 

thinking that the probability of another person contributing the 

male DNA in the fingernail clippings was diminutive. The 

purpose of requiring statistical evidence is to allow the jury 

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

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

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

provided the required context.14

iii. Prosecutor's statements regarding DNA evidence. We 

agree with the motion judge that the prosecutor misstated 

evidence in her opening statement and closing argument. The 

prosecutor's assertion in the opening statement that the 

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

the fingernail clippings was inconsistent with Hickey's 

testimony that the defendant could not be excluded as a 

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

closing argument that the difference between nonexclusion in YSTR testing and a "match" is a "matter of semantics" conflicted 

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

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

 

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

443.

14 We now encourage, without deciding whether it is 

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

nonexclusion testimony.
23

significant limitations that are not applicable to PCR testing, 

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

and the jury were instructed that the opening statement and 

closing argument were not evidence.

iv. Cross-examination regarding DNA evidence. We reject 

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

regarding the DNA evidence was ineffective. Counsel testified 

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

accompanying the PCR results because Bourke told him that the 

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

tactical decision to highlight mistakes in investigation, such 

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

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

strategic decision by trial counsel to determine whether the 

decision was "'manifestly unreasonable' when made."

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

 

15 The defendant disputed that this statement was actually 

made, describing it at the motion hearing as a 

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

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

counsel's testimony that this statement affected his evaluation 

of the DNA evidence. The motion judge determines matters of 

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

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

16 Although trial counsel averred that his failure to file a 

motion in limine or conduct additional cross-examination was not 

tactical, his testimony, explaining that he changed his trial 

strategy after speaking with Bourke, suggests otherwise. The 

motion judge did not make any findings in this regard.
24

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

were significant concerns with the evidence that counsel could 

have highlighted -- contamination and initial findings of 

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

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

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

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

We determine whether a decision was manifestly unreasonable by 

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

taking into account all the circumstances known or that should 

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

provide effective representation to the client and not whether 

counsel could have made alternative choices." Kolenovic, 471 

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

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

admitted without statistics, counsel was not ineffective for 

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

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

and the risk of highlighting the DNA evidence after Weir was 

excluded as a contributor.17

 

17 Trial counsel retained Bourke to educate him regarding 

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

number of issues before trial, Bourke did not advise counsel 

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

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

about specifics of Y-STR results, a testing method in its 
25

v. Prejudice. Although the admission of the PCR results 

without statistics was erroneous, the defendant is not entitled 

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

prejudiced because the PCR evidence without statistics created a 

grave risk of misleading the jury into believing that the 

defendant was the only possible contributor of the male DNA 

found on the victim's fingernail scrapings and that landscaping 

activities or her physical contact with others as a former 

hairdresser were other possible explanations. Applying the test 

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

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

prejudice is easily dismissed. The possibility that the DNA 

evidence could have come from an unknown third party was of 

limited value where the defendant named Weir as the culprit and 

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

murder supported an inference that it was actually the 

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

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

 

infancy at the time, without having alerted counsel to any 

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

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

consultation permits assumption that trial counsel's strategy 

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

defendant's motion for discovery of tests employed and data 

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

request anything else. Counsel testified that he stopped 

considering a challenge to the DNA after Bourke told him that 

DNA found on the victim belonged to the defendant.
26

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

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

any confusion that could have occurred was of limited value to 

the defendant and, more importantly, the Commonwealth presented 

substantial other evidence against the defendant.

The defendant argues that the erroneously admitted DNA 

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

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

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

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

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

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

(intentionally false and misleading statements to police 

demonstrate consciousness of guilt). Additionally, the 

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

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

she died. The defendant told another friend after the murder 

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

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

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

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

Commonwealth provided strong corroborative evidence that the 

defendant had committed the murder. Accordingly, there was no 

substantial likelihood of a miscarriage of justice.
27

The prosecutor's misstatements, which insinuated to the 

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

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

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

prejudice calculus sufficient to raise it to a level that would 

entitle the defendant to relief. In reviewing whether a 

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

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

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

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

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

whether the error, in the circumstances, possibly made a 

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

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

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

not require reversal because trial counsel did not object, the 

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

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

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

evidence." See Wood, supra.

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

defendant argues that trial counsel was ineffective in 
28

introducing the audiotapes between Weir and Morel,18 which 

included statements made by Weir naming the defendant as the 

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

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

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

Moreover, Weir indicated on the tape that the defendant 

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

defendant argued that "the tapes added nothing by way of 

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

trial counsel effectively cross-examined Weir prior to playing 

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

concluding that it was not manifestly unreasonable to introduce 

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

have been admissible after the defendant opened the door through 

impeachment. On appeal, the defendant concedes that the tapes 

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

inevitable that the prosecutor would have played the tapes.

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

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

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

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

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

 

18 Before trial, counsel moved to suppress the tapes. When 

unsuccessful, counsel decided to introduce the entirety of the 

tapes for impeachment purposes.
29

impeachment does not constitute ineffective assistance of 

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

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

form of impeachment available at trial, it is speculative to 

conclude that a different approach to impeachment would likely 

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

Fisher, supra.

Trial counsel explained that he made a tactical decision to 

introduce the entirety of the tapes because he thought it was 

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

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

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

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

motion judge that counsel's decision was not manifestly 

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

testimony as it was undisputed that only three people were 

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

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

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

was paramount to the defendant's case.

 

19 Although trial counsel noted that, in hindsight, it may 

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

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

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

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

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

"[t]here was nothing more important."
30

The tapes allowed trial counsel to impeach Weir in multiple 

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

specific examples of Weir's prior misconduct that may not 

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

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

prosecutor objected to playing the full tapes on this ground, 

but the trial judge admitted the evidence because trial counsel 

made the tactical decision to offer bad acts of both the 

defendant and Weir that were discussed on the tapes. Although 

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

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

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

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

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

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

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

(1992). Although trial counsel impeached Weir with this 

information before playing the tapes, the trial judge had 

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

play the tapes in full.21

 

20 The tapes also contained Weir's statements referencing a 

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

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

21 The prosecutor noted that she did not object to this line 

of questioning because of the judge's ruling.
31

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

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

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

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

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

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

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

Additionally, Weir told Morel that he could pass a polygraph 

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

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

you're someone else."

The defendant argues that the prior consistent statements 

strongly bolstered Weir's credibility because the statements 

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

was evidence contained on the tapes demonstrating Weir's motive 

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

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

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

friend about the murder. Considering that Weir told Morel 

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

home the day of the murder, and he could only get caught if one 
32

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

murder provided motive to diminish his involvement.22

The defendant also takes issue with trial counsel playing 

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

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

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

the defendant because Weir immediately followed that statement 

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

the individual.

Although the tapes included statements detrimental to the 

defendant and Weir's prior consistent statements, they provided 

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

counsel's strategic choice of method for impeachment was not 

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

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

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

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

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

introduced the unredacted plea agreement, noting that he would 

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

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

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

 

22 Shortly before the tapes were played, Weir testified that 

he did not remember hearing this rumor.
33

was the jury's responsibility to determine whether Weir was 

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

be "truthful."

The defendant argues that the unredacted plea agreement 

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

the United States Constitution by providing "extraneous matter" 

to the jury and that trial counsel was ineffective in this 

respect. The Commonwealth does not dispute that failure to 

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

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

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

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

The defendant's arguments are unavailing. The two 

references to "truthful" were not extraneous because they were 

cumulative of the one permissible reference. See Commonwealth

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

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

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

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

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

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

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

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

charge was to dispel any implication inherent in the agreement 
34

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

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

miscarriage of justice created by the failure to redact the two 

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

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

defendant next argues that the prosecution improperly attacked 

his character through bad act evidence and that counsel was 

ineffective for failing to object. The defendant points to two 

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

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

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

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

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

herself.

Although evidence of prior or subsequent bad acts "may not 

be offered to prove bad character or criminal propensity, such 

evidence may be admitted for another purpose where its probative 

value is not substantially outweighed by the danger of 

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

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

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

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

act evidence applicable to subsequent acts). Bad act evidence 

may be admitted to show "a common scheme, pattern of operation, 
35

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

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

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

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

too remote in time" to be sufficiently probative. Commonwealth

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

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

Without deciding whether the trial judge would have 

sustained an objection to this evidence, the motion judge 

concluded that trial counsel was not ineffective for failing to 

object because the evidence "could not have had appreciable 

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

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

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

death seem accidental." We agree.

We discern no error in admission of evidence of the 

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

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

(postcrime spending habits relevant to motive and ability to 

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

inheritance"). Moreover, the evidence was correspondingly

damaging to Weir. The neighbors testified that they often saw 

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

indicated that both were responsible for the damage. We assume, 
36

without deciding, that the admission of the defendant's 

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

however, with the motion judge that this singular comment was 

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

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

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

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

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

that it was manifestly unreasonable for trial counsel to advise 

him to testify because testifying allowed impeachment through 

evidence of prior inconsistent statements he made the night of 

his arrest. Counsel acknowledged he was aware of the statements 

but advised the defendant to testify because he believed the 

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

the defense that Weir had committed the murder. The motion 

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

of the Commonwealth's case.

 

23 The Commonwealth argues that the evidence was relevant to 

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

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

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

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

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

evidence relating to three children all "living in the same 

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

his children in a noticeably different manner" was relevant to 

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

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

in a separate apartment within the same building.
37

Where the Commonwealth has a strong case against the 

defendant and advising the defendant to testify may provide the 

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

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

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

motion hearing that he had had many conversations with the 

defendant about whether to testify and that the defendant 

decided to testify after counsel advised him that it was 

ultimately his decision. The defendant's informed and voluntary 

decision to testify undermines his claim. Commonwealth v. 

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

testify to his version of events was not manifestly unreasonable

where compelling evidence corroborated Weir's version.

7. Prior consistent statements. The defendant testified 

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

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

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

the friends during the month following the murder.24

The defendant argues that trial counsel was ineffective for 

failing to call two of the friends as surrebuttal witnesses to 

testify to the defendant's prior consistent statements. Counsel 

 

24 The voir dire was held because trial counsel sought to 

have the self-serving statements admitted. The trial judge 

excluded the evidence because there was insufficient evidence 

that Weir had heard the statement.
38

testified at the motion hearing that he thought that the 

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

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

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

defendant's claim after finding that the decision was strategic 

and concluded that it was not manifestly unreasonable. We 

agree.

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

defendant contends that even if the asserted errors do not 

warrant reversal of his convictions when considered 

independently, their combined effect nonetheless gives rise to a 

substantial likelihood of a miscarriage of justice. We reject 

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

challenged evidence should not have been admitted, the 

Commonwealth presented other substantial evidence corroborating 

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

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

explanations for the cause; his frequent precrime references to 

killing the victim, sometimes stating the exact method that 

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

crime."

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

examined the record pursuant to our duty under G. L. c. 278, 
39

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

relief.

Conclusion. The judgment of conviction of murder in the 

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

motion for a new trial is also affirmed.

So ordered.