November 6, 2015
Indictment found and returned in the Superior Court
Department on January 21, 2003.
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
Alford, Assistant District Attorney, for the Commonwealth.
Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
N.E.3d 45] Hines, J.
defendant, Thomas Lally, was convicted by jury of murder in
the first degree on theories of deliberate premeditation and
extreme atrocity or cruelty. 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) 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.  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.
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.
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. 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. Anthony was
an intended beneficiary of her estate when she died.
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
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 "
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."
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" --
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.
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.
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. He requested a full autopsy.
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."
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.
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
$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.
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.
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.
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
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.
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
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
Standard of review.
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.
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).
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).
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-
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
DNA evidence at trial.
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.
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
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 ...