Argued: October 9, 2015.
Indictments found and returned in the Superior Court Department on March 3, 2006.
The cases were tried before Robert J. Kane, J.
James E. Methe for the defendant.
Mary O'Neil, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
A Superior Court jury convicted the defendant, Leslie M. Cole, of the murder in the first degree of Rudolph Santos (victim) on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder, in violation of G. L. c. 265, § 1. On appeal, the defendant contends that (1) the trial judge erred by admitting in evidence unredacted medical records purportedly belonging to the defendant, together with related testimony from a nurse practitioner, and by instructing the jury on consciousness of guilt; (2) the admission of expert testimony concerning the statistical significance of deoxyribonucleic acid (DNA) evidence violated the defendant's constitutional right to confront witnesses; (3) the trial judge erred by admitting in evidence the victim's T-shirt, notwithstanding a purported discovery violation by the Commonwealth; (4) the prosecutor made improper remarks during her opening statement and her closing argument; and (5) the judge erred in denying the defendant's motion for required findings of not guilty. The defendant also requests that we exercise our authority under G. L. c. 278, § 33E, to reduce the conviction of murder to a lesser degree of guilt or to order a new trial. For the reasons detailed below, we affirm the defendant's convictions and decline to grant relief pursuant to G. L. c. 278, § 33E.
We summarize the facts the jury could have found, reserving further details for our discussion of the alleged errors.
Shortly before Christmas in 2005, the defendant and William Fields, who sold drugs together, discussed the possibility of robbing an unspecified drug dealer in order to resolve a cash flow problem. One day when the two men were visiting the New Bedford home of Fields's friend, Shannon Almeida, they asked her if she knew anyone who had a gun. Almeida responded that she did, and she introduced them to Vincent Wadlington. On the evening of December 24, while at Almeida's house, the defendant, Fields, and Wadlington discussed plans to commit a robbery. They then drove to an apartment in Brockton, where Wadlington retrieved a sawed-off rifle and some ammunition. The three men drove back to New Bedford, stopping at another house so the defendant could get some dark clothes to wear. At around 10 p.m., the defendant, Fields, and Wadlington returned to Almeida's home, and, approximately ninety minutes later, they decided that they were " ready to go and do this." The three men traveled in the defendant's motor vehicle to a multifamily home on Hillman Street, parked nearby, put on gloves and masks, walked to the house, and approached the back door. Wadlington was carrying the rifle.
That night, Christopher Busby was at home in that Hillman Street residence, spending time with his friend, the victim. The two men sold drugs from Busby's apartment, typically to people they already knew. They kept larger quantities of their supply in the cellar, which was always locked. The victim had possession of the key that night.
Sometime before midnight, Wadlington knocked on the apartment's door. In response to Busby's inquiry about who was there, Wadlington replied that it was " Eddie," but neither Busby nor the victim recognized the voice. Busby told " Eddie" to step near a window so he could see his face. Wadlington complied with the request, and he handed the rifle to the defendant. Busby did not recognize " Eddie," told the man that he would not sell him any drugs, and watched him walk away from the apartment. Several minutes later, Busby started to open the door so he could look outside. The defendant, Wadlington, and Fields kicked the door and rushed into the apartment.
The defendant fought with Busby. As Busby tried to defend himself, he felt someone striking him from behind, and he turned
to see Fields hitting him with a metal pipe. Wadlington fought with the victim. Shortly after the altercation began, Fields left the apartment, returned to the defendant's vehicle, drove to a nearby house, knocked on the front door, and asked the man who answered to call the police because he had heard gunshots. Fields then drove the vehicle back to where the three men originally had parked it, and he fled the scene on foot.
Meanwhile, back at the apartment, Busby was stabbed multiple times with a knife before collapsing and passing out. When he regained consciousness, he heard men's voices in the kitchen questioning the victim about the location of the drugs and demanding the key to the cellar. Busby quickly grabbed a Samurai sword that was leaning against a wall in the kitchen, swung it at the two assailants, and stabbed one of the men in the leg. After fighting with someone as he made his way down a hallway, Busby managed to reach his bedroom, where he fell onto the bed. He had difficulty breathing and was bleeding. Busby still could hear voices from the kitchen, and he realized that the victim had surrendered the key to the cellar when he heard one of the men running down the cellar stairs and back up again, asking, " Where are the drug[s]? Where are the drugs, Ru?" Busby then heard the sound of a gunshot and someone saying, " It's only a .22 rifle." The next thing Busby remembered was being treated by a paramedic.
Shortly before 1 a.m. on December 25, New Bedford police Officer Barry Pacheco and Sergeant Francis Rodriques arrived at the Hillman Street residence. After entering the apartment, which was in complete disarray, they observed a man lying on the floor, showing no signs of life. They then heard yelling from another room and discovered Busby lying face down on a bed, covered in blood, saying that he had been stabbed. Paramedics soon arrived and determined that the victim was dead. Busby, who had puncture wounds all over his body, was transported to a hospital and subsequently spent a week in a different hospital recovering from numerous stab wounds. State police criminalists processed the crime scene, including the stairs and walls leading down to the cellar, and collected evidence.
Following the events at Busby's apartment, Fields eventually returned to Almeida's home where he encountered the defendant, who had a bloody cloth wrapped around his thigh. When Fields asked the defendant what had happened to his leg, the defendant replied, " Well, you know, this is what happened in the house." The defendant left Almeida's home at around 6 a.m. on December 25. That same day, an individual named " Derrick Williams" was treated in the emergency room of Rhode Island Hospital (hospital) for a laceration to his thigh. A few days later, Fields looked in the trunk of the defendant's car and saw what appeared to be a Samurai sword, along with the clothes that the defendant had worn on the night of the assault. The two men drove to the docks located in the south end of New Bedford and threw the items in the ocean.
Dr. William Zane, a medical examiner for the Commonwealth, performed the autopsy on the victim. He testified that the victim had a gunshot wound to his right cheek, lacerations to his left upper eyelid and lower lip, contusions to his left cheek and forehead, abrasions on his right cheek and jaw, a gaping cut on the back of his left hand that went to the bone, cuts to his right wrist and forearm, and an eight-inch deep stab wound to his left buttock. Dr. Zane concluded that the victim died from the gunshot wound to his head, which penetrated his brain. He further concluded that a contributing factor in the victim's death was the stab wound to his buttock, which penetrated his lower abdominal cavity.
2. Admission of medical records, related testimony, and instruction on consciousness of guilt.
The defendant first contends that the judge should not have allowed medical records from the hospital to be admitted in evidence because there was no foundational showing that the defendant was the same person who was treated at the hospital. The defendant objected to the judge's ruling, so we review any error in the admission of the medical records under the prejudicial error standard. See Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994).
General Laws c. 233, § 79, excepts certain hospital records from the common-law rule against hearsay evidence. See Commonwealth v. Francis, 450 Mass. 132, 139, 876 N.E.2d 862 (2007); Bouchie v. Murray, 376 Mass. 524, 527, 381 N.E.2d 1295 (1978). The statute provides that " [r]ecords kept by hospitals ... under [G. L. c. 111, § 70,] shall be admissible ... as evidence ... so far ...