Heard: November 10, 2017.
found and returned in the Superior Court Department on
September 19, 2006.
cases were tried before Paul A. Chernoff, J.
J. Kelly for the defendant.
Alford, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
morning of August 3, 2002, the body of Daniel DeCosta was
discovered on a walkway behind the public library in downtown
Quincy. The defendant, Carlos A. Seino, was indicted and
ultimately convicted by a jury of murder in the first degree
on a theory of felony-murder and armed robbery in connection
with DeCosta's death. On appeal, the defendant claims
that the trial judge committed reversible error by allowing
the jury to be exposed to certain inadmissible hearsay and by
allowing one of the substitute expert witnesses to testify to
a match between the defendant's deoxyribonucleic acid
(DNA) profile and one obtained from the victim's
clothing. In addition he seeks a new trial, claiming that his
trial counsel was ineffective and that government officials
committed misconduct in the course of investigating and
prosecuting him. After full consideration of the trial record
and the defendant's arguments, we affirm the
defendant's convictions and decline to grant
extraordinary relief pursuant to G. L. c. 278, § 33E.
summarize the facts the jury could have found, reserving
certain details for discussion of specific issues.
spring of 2002, the defendant moved into an apartment with
two roommates in Quincy. However, by August of that year, the
defendant was "weeks and weeks late" on the rent.
On August 2, the defendant's roommate warned the
defendant that he would be asked to move out if he did not
pay the total amount that he owed by the following day. The
defendant paid a portion of the amount due to his roommate
that evening before going out.
meantime, the victim spent several hours that night at a
local Quincy bar, where he cashed two checks for a total of
put the money in his jeans pocket. At the bar, the victim
drank several beers, played Keno and darts, and
socialized. He appeared to be drunk as he bought drinks for
patrons and "flaunt[ed]" his money such that one of
his friends urged him to "put [it] away." He spent
approximately eighty dollars while at the bar that night.
defendant arrived at the bar at approximately midnight. He
saw some people he knew and observed the victim (whom he did
not know) staggering around with Keno tickets. The defendant
stayed for between twenty and thirty minutes, leaving at
approximately 12:30 A.M. The victim left the bar when it
closed, around 1 A.M., traveling by foot.
approximately 1:30 A.M., the defendant woke up his roommate
and gave him the remaining money owed in cash. Later that
morning, the roommate observed the defendant in front of the
television listening to the Quincy public access channel,
which was broadcasting the police scanner.
victim's lifeless body was discovered at approximately 7
A.M. on a walkway behind the Quincy public library with
contusions to his nose and the back of his head. Although his
wallet was still on his person, most of the cash he had had
was missing. Investigators took samples from the
defendant's clothing, including a snippet from the left
front jeans pocket and a snippet from the front of the
victim's shirt, both of which had bloodstains. The DNA
extracted from the jeans pocket sample was a mixture that
matched the DNA profiles of both the victim and the
defendant. The DNA extracted from the bloodstain on the
victim's shirt matched the profile of the defendant
defendant, who testified at trial, offered weak alibi
evidence to demonstrate that he did not have the opportunity
to commit the crime. Further, he suggested the existence of
a third-party culprit and speculated that blood from a cut on
his hand ended up on the victim's clothing via incidental
contact at the bar.
direct appeal, the defendant asserts violations of his
constitutional right to confront witnesses with respect to
testimony regarding portions of the victim's autopsy
report and death certificate, DNA charts used as chalks, and
evidence of matching DNA profiles offered through a
substitute expert witness. Following oral argument, the
defendant filed a motion for a new trial with this court,
alleging ineffective assistance of counsel and Brady
violations, among other claims. See G. L. c. 278, § 33E;
Brady v. Maryland, 373 U.S. 83, 87 (1963) . We
examine each of the defendant's arguments in turn.
Autopsy and death certificate evidence.
testimony by Dr. Richard Evans regarding the cause of the
victim's death, the doctor, who did not perform the
autopsy, referred to certain statements in the autopsy report
and the death certificate -- documents that he did not
author. The defendant argues that it was a violation his
right to confront witnesses to allow Evans to read in
evidence what amounted to testimonial hearsay statements
without the defendant having the ability to cross-examine the
declarant, i.e., the medical examiner who created the
documents. We agree. However, we conclude that
the error was harmless beyond a reasonable doubt.
general matter, a substitute medical examiner
"may offer an opinion on the cause of death, based on
his review of an autopsy report by the medical examiner who
performed the autopsy and his review of the autopsy
photographs, as these are documents upon which experts are
accustomed to rely, and which are potentially independently
admissible through appropriate witnesses."
Commonwealth v. Reavis, 465 Mass. 875, 883 (2013) .
Here, Evans reviewed the case folder of the medical examiner
who performed the autopsy, which included the autopsy report,
a toxicology report, handwritten notes and diagrams, and
photographs. Beyond properly offering his opinion
on the cause of death based on the case file and his
examination, however, Evans went further, testifying as to
statements contained in the autopsy report and the death
certificate, namely, the length of the lacerations on the
victim's head and the stated cause of death,
Sixth Amendment to the United States Constitution and art. 12
of the Massachusetts Declaration of Rights guarantee a
criminal defendant's right to confront each of the
government's witnesses. See Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309 (2009);
Commonwealth v. Sanchez, 476 Mass. 725, 732 (2017).
Thus, a judge at a criminal trial may not permit the
introduction of testimonial hearsay without the defendant
having an opportunity to cross-examine the declarant. See
Melendez-Diaz, supra at 309, 311.
Evans permissibly relied on the medical examiner's case
folder to form his opinion as to the cause of the
victim's death, it was error for him to testify to
statements contained in that report and the death
certificate, because the statements were testimonial hearsay
and the person who created the documents was not available
for cross-examination. See Commonwealth v. McCowen,
458 Mass. 461, 480, 483 (2010). See also Commonwealth v.
Greineder, 464 Mass. 580, 592-593, cert, denied, 571
U.S. 865 (2013); Commonwealth v. Avila, 454 Mass.
744, 763 (2009) .
the defendant objected to the statements contained in the
autopsy report and death certificate at the time of trial, we
review the constitutional error to determine whether it was
harmless beyond a reasonable doubt. Commonwealth v.
Nardi, 452 Mass. 379, 394 (2008) .
under this standard requires us to consider, among other
" the importance of the evidence in the
prosecution's case;  the relationship between the
evidence and the premise of the defense;  who introduced
the issue at trial;  the frequency of the reference; 
whether the erroneously admitted evidence was merely
cumulative of properly admitted evidence;  the
availability or effect of curative instructions; and  the
weight or quantum of evidence of guilt."
Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).
the erroneously admitted statements from the death
certificate and the autopsy report were of little, if any,
consequence. First, the improper testimony was cumulative of
Evans's properly admitted opinion as to the cause of
death. Evans opined as to the cause of death independently
from what was on the death certificate. See Commonwealth
v. Scesny, 472 Mass. 185, 198 (2015); Commonwealth
v. Emeny, 463 Mass. 138, 145-146 (2012). Further, the
statements regarding the length of the head lacerations had
nothing to do with whether the defendant was the assailant:
they did not tend to incriminate the defendant, nor did they
detract in any way from the defense's argument that he
was not the assailant. Finally, given the DNA evidence,
discussed in more detail infra, together with the
evidence of motive and opportunity, and taking everything
into consideration, we conclude that the errors did not
contribute to the guilty verdicts. See Commonwealth v.
Sinnott, 399 Mass. 863, 872 (1987).
trial, the Commonwealth presented DNA evidence through three
expert witnesses who gave opinions implicating the defendant
in the killing. The defendant ...