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Commonwealth v. Lally

Supreme Judicial Court of Massachusetts, Norfolk

March 3, 2016

Thomas Lally

         Argued November 6, 2015

          Indictment found and returned in the Superior Court Department on January 21, 2003.

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          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.

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


          [46 N.E.3d 45] Hines, J.

          The defendant, Thomas Lally, was convicted by jury of murder in the first degree on theories of deliberate 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.


          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

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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.

         The defendant often commented about how he and Anthony could kill the victim [46 N.E.3d 46] 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 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" --

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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 the 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 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 [46 N.E.3d 47] 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

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purchased a truck for the defendant and spent approximately $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 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 the 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.

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          The defendant testified that Weir killed the victim and that he received the injuries observed by the 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 [46 N.E.3d 48] arguments between Weir and the defendant.


          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, 34 N.E.3d 321, cert. denied, 136 S.Ct. 418, 193 L.Ed.2d 328 (2015), citing Commonwealth v. McGee, 467 Mass. 141, 145, 4 N.E.3d 256 (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, 985 N.E.2d 96 (2013), and whether any such error creates a substantial likelihood of a miscarriage of justice. See Commonwealth v. Leng, 463 Mass. 779, 781, 979 N.E.2d 199 (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, 315 N.E.2d 878 (1974). Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), S. C., 469 Mass. 447, 14 N.E.3d 294 (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, 881 N.E.2d 753 (2008), citing Commonwealth v. Comita, 441 Mass. 86, 90, 803 N.E.2d 700 (2004).

         2. DNA evidence.

         Relying on Commonwealth v. Mattei, 455 Mass. 840, 851-853, 920 N.E.2d 845 (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 Y-chromo-

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some 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 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 cross-examine 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. [46 N.E.3d 49] 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 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 ...

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