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Commonwealth v. Seino

Supreme Judicial Court of Massachusetts, Norfolk

May 8, 2018


          Heard: November 10, 2017.

         Indictments found and returned in the Superior Court Department on September 19, 2006.

          The cases were tried before Paul A. Chernoff, J.

          Brian J. Kelly for the defendant.

          Pamela Alford, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

          BUDD, J.

         On the 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.


         We summarize the facts the jury could have found, reserving certain details for discussion of specific issues.

         In the 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.

         In the meantime, the victim spent several hours that night at a local Quincy bar, where he cashed two checks for a total of $603[1] and put the money in his jeans pocket. At the bar, the victim drank several beers, played Keno[2] 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.

         The 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.

         At 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.

         The 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 alone.

         The defendant, who testified at trial, offered weak alibi evidence to demonstrate that he did not have the opportunity to commit the crime.[3] 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.


         In his 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.

         1. Autopsy and death certificate evidence.

         During 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.[4] We agree. However, we conclude that the error was harmless beyond a reasonable doubt.

         As a 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.[5] 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, respectively.

         The 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.

         Although 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) .

         Because 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) .

         Review under this standard requires us to consider, among other factors:

"[1] the importance of the evidence in the prosecution's case; [2] the relationship between the evidence and the premise of the defense; [3] who introduced the issue at trial; [4] the frequency of the reference; [5] whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; [6] the availability or effect of curative instructions; and [7] the weight or quantum of evidence of guilt."

Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).

         Here, 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).

         2. DNA evidence.

         At trial, the Commonwealth presented DNA evidence through three expert witnesses who gave opinions implicating the defendant in the killing. The defendant ...

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