Supreme Judicial Court of Massachusetts, Middlesex
Heard: November 9, 2018.
Evidence, Exculpatory, Admission by silence,
Consciousness of guilt, Testimony at prior proceeding.
Deoxyribonucleic Acid. Search and Seizure,
Probable cause, Exigent circumstances, Warrant, Affidavit.
Probable Cause. Constitutional Law, Search
and seizure, Probable cause, Admissions and confessions.
Practice, Criminal, Capital case, Motion to
suppress, New trial, Admissions and confessions.
found and returned in the Superior Court Department on
November 19, 2009. A pretrial motion to suppress evidence was
heard by Bruce R. Henry, J.; the case was tried
before Elizabeth M. Fahey, J., and a motion for a
new trial, filed on May 15, 2017, was considered by her.
E. Methe for the defendant.
White Speight, Assistant District Attorney, for the
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
early morning of October 2, 2009, the victim, Sheila dos
Santos, was stabbed to death near the back entrance to her
apartment building. A Superior Court jury convicted the
defendant, her former boyfriend, of murder in the first
degree on the theories of deliberate premeditation and
extreme atrocity or cruelty.
consolidated appeal from his conviction and from the denial
of his motion for a new trial on the ground of undisclosed
exculpatory evidence, the defendant challenges the denial of
the motion for a new trial. He argues also that the evidence
was insufficient to support the verdict, that it was an abuse
of discretion to have denied his motion to suppress evidence
that was seized without a warrant, and that a number of the
judge's evidentiary rulings were erroneous. In addition,
the defendant seeks relief pursuant to G. L. c. 278, §
affirm the defendant's conviction of murder in the first
degree, and, having reviewed the entire record pursuant to
our statutory duty under G. L. c. 278, 33E, we decline to
order a new trial or reduce the verdict.
the defendant challenges the sufficiency of the evidence, we
recite the facts in the light most favorable to the
Commonwealth, reserving some details for later discussion.
See Commonwealth v. Boiling, 462 Mass. 440, 442
victim lived on the fourth floor of an apartment building on
Main Street in Everett. She, along with her sisters, Rose
Angela Carla dos Santos and Ana Paula Carla dos Santos,
worked as dancers at a strip club in Chelsea, and later in
Stoughton. She met the defendant at the Chelsea
club at some point in 2006. The defendant became friends with
the victim and her sisters, and eventually started dating the
victim. That relationship ended approximately six months
prior to the victim's death. Despite the break up, the
defendant continued to socialize with the victim and her
sister, Ana. The three of them went out together to
nightclubs and other gatherings attended by members of the
Brazilian community, and the three frequently spoke on the
April 2009, the victim entered into a relationship with a
married man named Oliver. On September 26, 2009, a week
before the victim's death, the defendant and Oliver were
at the Stoughton club where the victim and her sisters
worked. The victim paid attention to Oliver in between
dances, and the defendant did not stay long. The next day,
the defendant visited Ana at her house. He sat down on the
floor, and was "a little sad" and
"quiet"; he expressed dismay over the victim's
decision to date a married man.
September 30, 2009, the defendant and one of his roommates,
Darles DeSouza, attended a barbeque at Ana's house to
celebrate her birthday. The defendant got "a bit
agitated" when the victim did not show up. He asked Ana
to contact the victim to get her to join them. When Ana told
the defendant that the victim was on a date and might stop by
later, the defendant commented that he had suspected that she
was out with someone. As the night progressed, the defendant
called the victim to see what time she would arrive; he held
his cellular telephone in his hand and appeared to be waiting
for her. After the defendant and DeSouza returned to their
Somerville apartment, the defendant remained outside in his
silver Nissan Murano and attempted to telephone the victim.
early morning hours of October 1, 2009, the defendant
telephoned Ana and told her that he could no longer be
friends with her "because he wasn't a good
person." The defendant explained that he had been using
drugs and that his life for the past six months had had no
meaning. He asked Ana to give her sister (the victim) a
message that "[s]he was dealing with a person who has no
life." Ana attempted to console the defendant; she told
him to think about his family and children, and that she
would help him find another girlfriend. The defendant
responded that he only was interested in the victim.
that morning, the defendant sent Ana a text message that he
was feeling better. He also would "not do anything
wrong." Before Ana left for her evening shift at the
club, she and the defendant spoke by telephone. The defendant
said that he had not wanted to go to work that day because he
"wasn't in the mood." He asked Ana, "Is
your sister going to work today?" Ana replied, "I
don't know. I think so."
time, the defendant lived on Melvin Street in Somerville with
DeSouza and another roommate, Washington Silveira. The
defendant slept on a spare mattress in DeSouza's bedroom,
and stored some of his belongings in the closet. In the
evening of October 1, 2009, DeSouza came home from work, ate
dinner with the defendant, and began watching a movie in the
living room. The defendant went into the bedroom before the
movie ended. After the movie, DeSouza went into his bedroom,
and noticed that the defendant was lying on his mattress
wearing a jacket and pants. This was slightly unusual, but
not entirely out of the ordinary; the defendant sometimes
would be in bed, dressed, when he planned to go out later
that night. DeSouza fell asleep. When he woke up the next
morning, at 6 A.M., the defendant was talking to someone on
his cellular telephone.
victim worked at the Stoughton club in the evening of October
1-2, 2009, and drove home in her 2006 Honda CR-V shortly
after the club closed at 1 A.M. At 1:11 A.M, during her drive
home, the victim called her sister Ana; she sounded
"normal." At 1:12 A.M, a vehicle that appeared to
be consistent with the defendant's Nissan Murano was
captured by a surveillance video camera located on the corner
of Melvin Street and Broadway in Somerville. The video
recording showed this vehicle pull out of a parking space on
Melvin Street, near the defendant's apartment building.
A.M., a vehicle resembling the defendant's Nissan Murano
drove around a traffic circle in Everett and headed in the
direction of the victim's apartment building. A few
minutes later, at 1:42 A.M., a Honda CR-V drove around the
traffic circle, heading in the same direction. At 1:44 A.M.,
surveillance footage from a camera facing Tileston Street in
Everett captured an image of a similar vehicle driving near
the victim's apartment building. Back on Melvin Street in
Somerville, at 1:53 A.M., a vehicle that appeared similar to
the defendant's Nissan Murano pulled up and parallel
parked in the same space from which a vehicle like a Nissan
Murano had pulled out fifty-one minutes earlier. A man got
out of the vehicle and walked in the direction of the
defendant's apartment building.
before 2 A.M., one of the victim's neighbors, who lived
on the second floor of the building, was awakened by a
woman's screams coming from the parking lot behind the
apartment building. He got up, heard another scream, looked
outside, and did not see anything. Approximately thirty to
forty seconds after the second scream, the neighbor saw
someone walk down the last few steps of the rear staircase,
and jog through the parking lot and around a Dumpster. The
neighbor described the individual as a man in his twenties or
thirties, wearing a tan or brown jacket and jeans. The
neighbor went back to bed sometime around 2 A.M.
A.M., a woman who lived on Laurel Street, in an apartment
that faced the rear of the victim's building on Main
Street, also was also awakened by a woman's screams. She
heard the woman yell, "Get off me, get off me, get away
from me," but did not see anything amiss when she looked
outside. Believing that the screams were connected to one of
the many parties that her neighbors hosted, the woman went
back to bed without calling the police.
A.M., a resident of the victim's building went outside to
empty his trash and found the victim lying face down in a
pool of blood on the landing outside the back door. She had
been stabbed or cut thirty-one times; she had seventeen stab
wounds in the torso, and multiple knife wounds in both arms.
The victim's handbag, cellular telephone, and keys were
next to her body. The wallet contained her credit cards and a
few hundred dollars in cash. This neighbor telephoned 911.
investigators spoke to members of the victim's family.
Ana told the officers, "I have a suspect for you."
The police then attempted to locate the defendant. A
detective was able to reach the defendant on his cellular
telephone. The defendant agreed to meet investigators at the
Everett police station at 2 P.M.; he did not appear at the
police station at that time. Eventually, the defendant
informed police that he was at the Maiden District Court
paying traffic fines. Three Everett police officers drove to
the Maiden District Court and met the defendant there. He
agreed to accompany the officers to the Everett police
station. When they arrived at the station, one of the
officers noticed injuries on the back of the defendant's
hands. An officer contacted a forensic scientist, Eric
Koester, who worked at the State police crime laboratory
(crime lab), and asked him to come to the police station to
test for possible nonvisible blood. Koester swabbed both of
the defendant's hands, and the defendant then left the
lab analyst examined deoxyribonucleic acid (DNA) extracted
from the swabs collected by Koester and determined that the
victim was included as a possible contributor to a DNA
mixture on the back of both of the defendant's hands. The
swab from the right hand was a mixture of at least three
people. The defendant matched the major profile, and the
victim was included as a potential contributor to the minor
profile. The swab from the left hand contained a mixture of
DNA from at least two people; the defendant's DNA matched
the major profile, and the victim was included as a potential
contributor to the minor profile.
October 2, 2009, police executed search warrants for the
defendant's apartment and his two vehicles (the Nissan
Murano and a GMC pickup truck). Police seized a pair of
bloodstained sneakers from a bedroom closet. Later testing
showed that DNA from a bloodstain on the top of the toe of
the left sneaker matched the victim's DNA profile.
Another bloodstain on the side of the right sneaker, not
visible to the naked eye, contained a mixture of DNA; the
major profile from that sample matched the victim's DNA
also collected scrapings from underneath the victim's
fingernails. The scrapings from her left hand tested positive
for male "Y-STR" DNA,  and contained a mixture
of DNA from at least four men. The defendant (and his
paternal relatives) were included as possible contributors to
the major profile. Oliver (and his paternal relatives) were
included as a potential source of the minor profile in this
DNA mixture. The crime lab obtained both STR and Y-STR DNA
results from the victim's right fingernail scrapings.
With respect to the STR profile, the defendant was included
as a possible contributor, and Oliver was excluded. The Y-STR
DNA testing produced a mixture of at least three male
profiles. The defendant (and his paternal relatives) were
included as possible contributors to the major profile; and
Oliver (and his paternal relatives) were included as possible
contributors to the minor profile.
direct appeal, the defendant presents four claims, and asks
this court to grant him relief under G. L. c. 278, §
33E, and order a new trial or direct the entry of a verdict
of a lesser degree of guilt. The defendant contends that the
trial judge abused her discretion in denying his motion for a
new trial based in large part upon evidence that forensic
scientist Eric Koester had failed required proficiency tests.
The defendant also challenges the sufficiency of the evidence
that he killed the victim. In addition, he argues that the
police conducted an illegal warrantless search by swabbing
his hands to detect the presence of nonvisible blood, and
that a subsequent warrant authorizing a search of his
apartment was not supported by probable cause. The defendant
argues further that the trial judge abused her discretion in
making certain evidentiary rulings, including allowing the
introduction in evidence of an adoptive admission. Finally,
the defendant asks this court to exercise its authority,
pursuant to G. L. c. 278, § 33E, and order a new trial
or direct the entry of a lesser degree of guilt.
Motion for new trial.
his conviction of murder in the first degree in March 2012,
the defendant's appeal was entered in this court in June
2013. In February 2015, the Commonwealth provided the
defendant with postconviction discovery. The discovery
included a September 2014 memorandum from the crime lab
reporting that Koester repeatedly had failed proficiency
tests in bloodstain pattern analysis and the recovery of
trace evidence. The Commonwealth also provided the defendant
with a "corrected" DNA STR and Y-STR report that
showed a significant reduction in the probabilities of the
combined STR and Y-STR results appearing randomly in the
receiving the information concerning Koester's failed
proficiency tests, the defendant filed a motion for a new
trial in this court, on the ground that the Commonwealth had
failed to provide exculpatory evidence. In the alternative,
the defendant argued that the information constituted newly
discovered evidence that "casts real doubt on the
justice of the conviction" and "probably would have
been a real factor in the jury's deliberations." See
Commonwealth v. Lykus, 451 Mass. 310, 326 (2008). In
addition, the defendant maintained that errors in the DNA
probability calculations, combined with other issues