December 11, 2015
April 22, 2016.
Suffolk. Indictment found and returned in the Superior Court
Department on November 15, 2011.
motions to suppress evidence were heard by Charles J.
Hely, J., and the case was tried before Garry V.
Safar for the defendant.
Zachary Hillman, Assistant District Attorney (
Ian Polumbaum, Assistant District Attorney, with
him) for the Commonwealth.
Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
August, 2011, a sixty-five year old woman was found dead in
her apartment in the South Boston section of Boston. She was
the victim of blunt force trauma caused by a baseball bat.
The defendant, Adam Cassino, was indicted for the crime and a
jury convicted him of murder in the first degree on theories
of deliberate premeditation and extreme atrocity or cruelty.
On appeal, the defendant claims (1) error in the denial of
his three motions to suppress evidence stemming from a
claimed illegal search of his clothing and shoes that were
stored in a secured area while he was civilly committed
pursuant to G. L. c. 123, § 35; (2) error in the
presentation of deoxyribonucleic acid (DNA) results; (3)
error in the failure to give a diminished capacity
instruction; and (4) abuse of discretion in the judge's
juror bias determination. We affirm the order denying the
defendant's motions to suppress as well as the
defendant's convictions, and we discern no basis to
exercise our authority pursuant to G. L. c. 278, § 33E.
Motion to suppress.
the discovery of the victim's body on August 27, 2011,
the police investigation soon focused on the defendant, the
victim's neighbor, as a possible suspect. The
investigation led police to the Massachusetts Alcohol and
Substance Abuse Center (center) where the defendant had
resided since August 24, 2011, after being civilly committed
for drug treatment under G. L. c. 123, § 35. On August
29, 2011, two days after the discovery of the body, two
Boston police detectives went to the center to interview the
defendant. While there, the detectives viewed the
defendant's clothing and shoes and observed reddish brown
stains on the shoes. On August 31, 2011, police applied for
and obtained a warrant seeking the authority to search and
seize the clothing and shoes. The affidavit submitted in
support of the warrant application referenced the reddish
brown stains. Later that same day, police seized the items
from the center pursuant to the warrant.
September 8, 2011, police submitted applications for two
additional search warrants, one pertaining to the apartment
where the defendant stayed on August 23, 2011, the night
before he was apprehended for the G. L. c. 123, § 35, civil
commitment and the other for the defendant's primary
residence. The affidavits accompanying both applications
cited the forensic evidence obtained
from the defendant's shoes, including that DNA samples
from the reddish brown stains matched the known DNA profile
of the victim.
defendant filed three motions to suppress, claiming, on State
and Federal constitutional grounds, that the viewing of his
clothing and shoes at the center was an illegal, warrantless
search and that the three subsequent search warrants for the
shoes and the two residences, based on that illegal "
search," lacked probable cause. As background for the
analysis of this issue, we summarize the relevant facts from
the affidavit submitted in support of the warrant application
dated August 31, 2011, and from the undisputed testimony
adduced at the hearing on the motion to suppress.
last known contact with the victim occurred Monday evening,
August 22, 2011, and the last outgoing call from her cellular
telephone was the next afternoon. Police estimated that the
murder occurred sometime between Monday and Tuesday evenings.
During a search of the victim's apartment, police seized
an empty bottle of Clonazepam that was issued to the victim
on August 11, 2011, and initially contained ninety pills.
Police believed, based on witness interviews, that the
victim had been having ongoing problems with the defendant
and that he had stolen her prescription medication and other
belongings in the past. A neighbor reported that the
defendant stole prescription medicine from her that Monday.
The defendant told police that he met with the victim that
Monday evening to discuss buying pills. He stated that he
would have purchased some, but he did not have any money.
on the victim's hands and nails indicated that she
struggled with, and possibly caused injury to, her attacker.
Moreover, the police asserted in the search warrant affidavit
that " the damage to the victim coupled by the amount of
blood throughout the scene showed an extreme force which
would have made it very difficult for any person involved, or
even present, to avoid a transfer of some blood evidence to
either themselves or their clothing or footwear."
defendant's mother told police that the defendant was
taken into custody for civil commitment on a warrant of
apprehension on August 24, 2011, a process she started the
day before because of the defendant's substance abuse.
The defendant arrived at the center with injuries to his hand
and knee. The inner perimeter security commander for the
center testified that booking and admission procedures
require that the clothing and shoes of a person committed
under G. L. c. 123, § 35, be taken and stored in a
secure property storage area. Property is returned to its
owner after discharge, or it is transferred to follow the
owner to any future confinement.
August 29, 2011, two Boston police detectives interviewed the
defendant at the center and requested to view the
defendant's personal property. A sergeant retrieved the
property from the storage facility, opened the bag containing
the defendant's clothing and shoes, and lifted the items
out of the bag so that the detectives could view the items.
As noted, reddish brown stains were visible on the
In reviewing a ruling on a motion to suppress, we accept the
judge's subsidiary findings of fact absent clear error
'but conduct an independent review of [his] ultimate
findings and conclusions of law.'" Commonwealth
v. Craan, 469 Mass. 24, 26, 13 N.E.3d 569 (2014),
quoting Commonwealth v. Scott, 440 Mass.
642, 646, 801 N.E.2d 233 (2004). We " make an
independent determination of the correctness of the
judge's application of constitutional principles."
Commonwealth v. Woods, 466 Mass. 707, 717, 1 N.E.3d
762, cert. denied, 134 S.Ct. 2855, 189 L.Ed.2d 818 (2014),
quoting Commonwealth v. Mercado, 422 Mass. 367, 369,
663 N.E.2d 243 (1996).
judge denied the defendant's motions, concluding that the
defendant had no reasonable expectation of privacy in the
clothing and shoes when the officers first observed them at
the center and that all three warrants were supported by
probable cause. On appeal, the defendant reprises his
argument that the viewing of his personal items was a
warrantless search that unlawfully infringed on his
reasonable expectation of privacy and tainted the three
Warrantless searches are presumptively unreasonable, under
both the Fourth Amendment to the ...