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SJC-11627

                   COMMONWEALTH   vs.   ALEX SCESNY.



            Worcester.     March 6, 2015. - July 14, 2015.

   Present:     Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.


Homicide. Rape. Evidence, Expert opinion, Photograph,
     Relevancy and materiality, Identification, Third-party
     culprit. Witness, Expert. Constitutional Law,
     Confrontation of witnesses. Practice, Criminal, Capital
     case, Confrontation of witnesses, Argument by prosecutor,
     Instructions to jury.



     Indictments found and returned in the Superior Court
Department on September 12, 2008.

    The cases were tried before Richard T. Tucker, J.


     Kenneth I. Seiger for the defendant.
     Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.


    BOTSFORD, J.     In October of 1996 passersby discovered the

body of a woman, Theresa Stone (victim), by the side of a road

in Fitchburg.    Sixteen years later, in March of 2012, a

Worcester County jury convicted the defendant, Alex Scesny, of
                                                                     2


murder in the first degree and aggravated rape in connection

with her death.1   Before us is the defendant's appeal from these

convictions.   The defendant argues that (1) the evidence was

insufficient to support the convictions; (2) the trial judge

erred in admitting opinion testimony of a criminalist employed

by the Commonwealth because the witness was not qualified to

render the opinion stated; (3) the admission of an autopsy

report prepared by a medical examiner who did not testify at

trial, and of testimony of a substitute medical examiner,

violated the defendant's constitutional right to confront

witnesses; (4) it also was error to admit a witness's testimony,

based on her examination of a photograph that itself should not

have been admitted, that she recognized the defendant as one who

had patronized a bar in which the victim was seen on the night

of her death; (5) the prosecutor's closing argument was

improper, impinging on the defendant's fundamental right to

present a defense; and (6) the judge erred in declining to

instruct the jury in accordance with the defendant's proposed

instruction on third-party culprit evidence.   We conclude that

the evidence was insufficient to convict the defendant of

aggravated rape, and reverse his conviction of this crime.      We


     1
       The jury found the defendant guilty of murder in the first
degree under all three theories: deliberate premeditation,
extreme atrocity or cruelty, and felony-murder.
                                                                    3


affirm the defendant's conviction of murder in the first degree.2

     Background.    1.   Facts.   The defendant challenges the

sufficiency of the evidence, and therefore we summarize the

facts the jury could have found in the light most favorable to

the Commonwealth.    Commonwealth v. Earle, 458 Mass. 341, 342

(2010).   We reserve certain facts for later discussion in

connection with other issues raised.

     On October 23, 1996, the victim and her daughter, Nashea

Falcon,3 spent the day running errands together and returned in

the afternoon to the apartment where they were living in

Fitchburg.   At approximately 7 P.M. that evening, the victim

left the apartment to buy some groceries for dinner.      Shortly

thereafter, she visited the Brau-Hoff, a bar on Main Street in

Fitchburg.   She arrived alone, stayed for about an hour or more,

and talked to the bartender, Jessie Spencer.      The victim left

the bar alone and subsequently returned to the apartment with

groceries.   She told Nashea that she had received a ride home


     2
       The reversal of the defendant's conviction of aggravated
rape means the jury's determination that the defendant was
guilty of felony-murder in the first degree cannot stand.
Because the jury also found the defendant guilty under the other
two theories of murder, however, and because we discern no error
affecting those findings, the defendant's conviction of first
degree murder is affirmed.
     3
       Nashea Falcon was formerly known as Nashea Stone. By the
time of the trial in 2012, she had married Efrain Falcon, her
boy friend at the time of the victim's death in 1996. We refer
to her by her first name, Nashea, to avoid any confusion.
                                                                     4


from a man in a black truck who was waiting for her outside, but

that she did not want to go with him.   Sometime between 9:30 and

10:30 P.M., the victim left the apartment again and told Nashea

she was going to "Work-a-Day," a temporary employment agency.4

That was the last time Nashea saw the victim alive.

     On October 25, 1996, responding to a telephone call

regarding a body by the side of a road in Fitchburg, the police

observed a white female lying on her left side with her face

down on the ground, her pants and underwear pulled down to her

knees, and her knees, thighs, buttocks, and lower abdominal area

exposed.   There was a light coating of leaves over the body, and

its lividity appeared consistent with the position in which it

was found.   Police discovered what appeared to be a condom

wrapper underneath or in the vicinity of the body.    The body was

identified as the victim's through fingerprint analysis.      The

cause of death was strangulation by ligature.   The autopsy

revealed that two of the victim's teeth had been broken off,

that she had blood in her mouth, and that there were injuries to

her eyelids, nose, neck, left shoulder, right clavicular region,

right arm, right metacarpal, and right thigh.

     During trial, the Commonwealth and the defendant stipulated

     4
       According to Nashea, the victim had worked as a prostitute
in the past, and when the victim left the apartment at
approximately 9:30 P.M. on October 23, 1996, it would not have
surprised her (Nashea) if the victim was "going to make some
money that night."
                                                                   5


to the following:

          "After [the victim's] body was discovered on Kinsman
     Road on October 25, 1996, blood samples and vaginal and
     anal swabs were taken as evidence. This material was sent
     to the Mass[achusetts] State Police crime [laboratory] for
     [deoxyribonucleic acid (DNA)] testing. These tests
     generated DNA profiles, which were made part of a DNA
     database. In 2008, for reasons completely unrelated to the
     investigation of [the victim's] death, [the defendant's]
     DNA profile was entered into that system. Sometime after
     that, a link was believed to be established between [the
     defendant's] DNA profile and biological evidence taken from
     [the victim]. At a later date, [the defendant] provided
     another DNA sample for further comparison purposes."5

The rectal swab taken from the victim contained sperm cells, and

the DNA profile generated from the sperm matched the DNA profile

for the defendant.6    The probability of a randomly selected,

unrelated individual having a DNA profile matching the major

profile obtained from the rectal swab was one in 13.2

quadrillion of the Caucasian population.7

     Upon examination of the victim's body, a number of small,

red-brown stains were noted on the victim's exposed skin and


     5
       The trial judge read this stipulation to the jury during
the trial.
     6
       The rectal swab generated two deoxyribonucleic acid (DNA)
profiles, a sperm fraction and a nonsperm fraction. The profile
generated for the sperm fraction was a mixture of DNA, meaning
that more than one person contributed DNA to that fraction. The
major profile for that fraction matched the DNA profile for the
defendant. The minor profile for the sperm fraction contained
some cellular material "carr[ied] over" from the nonsperm
fraction, and it was consistent with the victim's DNA.
     7
         The defendant is Caucasian.
                                                                     6


clothing.     A screening test for the presence of blood was

performed on stains from the victim's lower pant leg and

sneaker, as well as her right hip and right thigh-left knee

area.    The stains tested positive indicating that blood may be

present.     The stain on the thigh-knee area was submitted for

further testing and a confirmatory test for human blood was also

positive.8

     DNA profiles generated from the stains on the sneaker, hip,

and thigh-knee area indicated a mixture of DNA from more than

one source.     The defendant matched the major profile in the DNA

mixture on the hip.     The probability of a randomly selected

unrelated individual having a DNA profile matching this stain

was approximately one in 1.366 billion of the Caucasian

population.     The defendant also was included as a potential

contributor to the DNA mixtures on the sneaker and thigh-knee

area.    The probability of a randomly selected unrelated

individual having contributed DNA to the mixture was

approximately one in sixty-one of the Caucasian population for

each of these two stains.

     Male-specific DNA testing also was performed on three areas

of the victim's underwear.     In the first area, a partial male

DNA profile was generated that matched the defendant's; the


     8
         The other stains were too small for confirmatory testing.
                                                                    7


probability that a randomly selected individual would match the

profile was one in two of the male population.   In the second

area tested, a partial male DNA profile was generated that did

not match the defendant's profile.   In the third area tested, no

male DNA was found.   A screening test for the presence of blood

on three red-brown stains found on the underwear was positive.9

No seminal fluid was found to be present on the victim's

underwear, which suggested that the victim had not pulled up her

underwear and pants after the semen in her rectum had been

deposited.10

     Some of the red-brown bloodstains11 on the victim's body and


     9
       A screening test for blood on a fourth red-brown stain on
the underwear was negative.
     10
       Debra McKillop, a criminalist who had been employed by
the Commonwealth at the time of the victim's death, testified
that if a liquid such as seminal fluid is deposited in an
orifice, such as the vaginal, anal, or other cavity, it is a
common occurrence, when cloth or other material is placed over
the orifice, that liquid will be absorbed into the material; and
that if the victim had pulled up her underwear and pants
following deposit of semen or sperm in her rectum, some drainage
or transference onto her underwear could be expected. Doctor
Henry Nields, a physician and the substitute medical examiner,
however, testified that drainage of seminal fluid from the anal
opening onto underwear after anal sex may or may not be present.
The defendant challenges the admission of McKillop's opinion
testimony on the ground that she was not professionally
qualified to give it. The defendant's argument is discussed
infra.
     11
       As suggested in the text, the evidence concerning the
red-brown stains would permit the jury to find that they were
bloodstains and, in particular, the defendant's bloodstains.
                                                                     8


clothing appeared to have been deposited at an angle, suggesting

that the blood causing the stains had hit the victim's body at

an angle and that some type of action or force had been

involved.   The stains on the victim's skin did not appear to be

disturbed, meaning they had been deposited on the body and had

dried in the condition in which the investigating police and

criminalists found them.    The stains' appearance again suggested

that the victim had not pulled up her pants after the stains

were deposited.12

     Jessie Spencer worked as a bartender at the Brau-Hoff bar

in Fitchburg on the night of October 23, 1996, the night of the

victim's disappearance.     In 2008, police showed Spencer several

photographs and asked her whether she recognized any of the

persons depicted in them as customers of the bar.     She was shown

a photograph of the defendant and was "pretty certain" she

recognized him.     Over-all, four of the six photographs she was

shown were of men she recognized from the bar.

     The defense conceded at trial that the defendant had had

sexual intercourse with the victim, but argued that the


     12
       Testimony was presented indicating that if the stains had
been wet when deposited on the victim, and the victim
subsequently had pulled up her pants, some sort of interruption
or disturbance of the stain would be expected. If the stains on
the victim's body had been dry and the victim then pulled up her
pants, any friction or contact with the clothing could have
dislodged the stain causing it to fall free from the skin.
                                                                    9


intercourse was consensual.    He stressed that the stains on the

victim's hip, knee, and sneaker contained a mixture of DNA from

more than one person,13 and argued that any potential

contribution by him to the DNA in the stains was not necessarily

blood, but could have been some other bodily substance

transferred onto the victim's body during their sexual

encounter.

     The defendant also presented evidence at trial suggesting

that two other men may have been responsible for the victim's

death:    Everett Carlson and James Webber, who was the victim's

former husband and father of Nashea.    Both men were excluded as

sources of the sperm on the rectal swab taken from the victim,

as well as the DNA mixture in the stains on the victim's sneaker

and right thigh-left knee; the major male DNA profile in the

stain on the victim's right hip also did not match either man.14

Webber was excluded as a source of the partial male DNA profile

generated from the stains on the first area tested from the

victim's underwear, but Carlson was included, meaning his DNA

profile matched the partial male DNA profile identified in that



     13
       The victim was included as a potential contributor to the
DNA mixture on the sneaker; the DNA mixtures from the hip and
knee yielded inconclusive results with respect to the victim.
     14
       The minor profile yielded inconclusive or insufficient
results for comparison.
                                                                        10


area of the underwear.15   Both Webber and Carlson were excluded

as sources of the male DNA detected in the second area tested

from the victim's underwear.16

     2.   Procedural history.     In 2008, the defendant was

indicted for the murder and aggravated rape of the victim.         As

indicated, in March of 2012 a jury convicted the defendant of

murder in the first degree on the theories of deliberate

premeditation, extreme atrocity or cruelty, and felony-murder;

he also was convicted of aggravated rape.      The defendant filed a

timely appeal of his convictions, which we consider here.

     Discussion.   1.   Sufficiency of the evidence.    The

defendant claims there was insufficient evidence to prove that

he was the perpetrator of the victim's murder and that he

committed aggravated rape.      He does not dispute that the DNA

from the rectal swab taken from the victim established that he

had intercourse with her, but asserts there was no evidence to

prove that the sexual interaction was not consensual.     He also

contends that the additional forensic evidence was ambiguous,


     15
       The probability that a randomly selected individual would
match the partial male profile identified was one in two of the
male population; as previously indicated, the defendant's DNA
was also included as a possible source.
     16
       The defendant was excluded as a possible source of the
male DNA detected in this area as well, indicating that a male
other than the defendant, Carlson, or Webber contributed this
stain.
                                                                  11


inconclusive, speculative, and ultimately insufficient to prove

that he murdered the victim;17 and that apart from this forensic

evidence, the Commonwealth provided no evidence connecting him

to the scene or to the murder.   To support this argument, he

notes the evidence that the victim was a prostitute and

therefore had consensual sex with men, and further that the

autopsy report revealed the victim's external genitalia and anus

were normal -- that is, without any sign of injury or trauma.

     With respect to the charge of murder, the defendant's claim

fails.    The trial evidence considered in the light most

favorable to the Commonwealth would allow the jury reasonably to

find that the defendant had sex with the victim (as he

conceded), at or near the time of her death; the red-brown

stains on the victim's body and clothes were or certainly

included the defendant's blood; the victim had not pulled up her

underwear and pants after having anal intercourse with the

defendant or after the defendant's blood was deposited on her


     17
       In particular, the defendant argues that DNA testing done
on the stains from the victim's body and clothing did not
identify the bodily source of the substance creating the stains,
and thus his potential contribution to the DNA mixtures was not
necessarily blood but could have been some other biological
fluid -- e.g., saliva or semen -- transferred to the victim
during intercourse. He also points to the fact that the DNA
found on the victim's underwear could have matched half of the
male population, and that the DNA testing performed actually
established that a fourth, unidentified man contributed sperm
DNA to these underwear stains.
                                                                   12


body; the victim died from strangulation by ligature; she also

suffered significant injuries to her face as well as to her arm

and thigh; and she could have encountered the defendant at the

Brau-Hoff bar on the evening or night of October 23, 1996.

       Based on this evidence, the jury reasonably could infer

that the defendant had sex with the victim and then strangled

her.   See Commonwealth v. Perkins, 450 Mass. 834, 837-838 (2008)

("Because death had occurred while [the victim] was lying on her

back, and because no sperm cells were found on the crotch area

of her panties, death probably occurred after intercourse and

before [the victim] could pull up her clothes such that her

panties would collect sperm cells draining from her body").

This is a sequence of events that supports a determination that

the defendant acted with deliberate premeditation.   See

Commonwealth v. Bregoli, 431 Mass. 265, 269-270 (2000)

("evidence of death by strangulation supported an inference that

the victim's death was not instantaneous, but the result of

pressure applied to her neck until she lost consciousness,"

which warranted finding that defendant "acted with malice and

deliberate premeditation").    Moreover, the extent and severity

of the victim's injuries permitted a finding of extreme atrocity

or cruelty.   See Commonwealth v. Scott, 470 Mass. 320, 321, 324-

325 (2014) (evidence that victim was raped and strangled, with

significant injuries to head, skull, and face, supported jury's
                                                                  13


guilty verdict of murder in first degree under theory of extreme

atrocity or cruelty [as well as other two theories of murder]).

With respect to the murder charge, therefore, the Latimore test

was met.   See Commonwealth v. Latimore, 378 Mass. 671, 677

(1979) (considering evidence in light most favorable to

Commonwealth, we ask whether "any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt").

    We agree with the defendant, however, that the evidence

presented was not sufficient to support his conviction of

aggravated rape.   This court has established that "[t]he essence

of the crime of rape, whether aggravated or unaggravated, is

sexual intercourse with another compelled by force and against

the victim's will or compelled by threat of bodily injury."

Commonwealth v. McCourt, 438 Mass. 486, 494-495 (2003).

"Absence of consent is an essential element of the crime of

rape, whether aggravated or unaggravated."   Commonwealth v.

Cheremond, 461 Mass. 397, 408 (2012).   Here, the evidence from

which the jury could reasonably infer lack of consent was itself

lacking.   Although the victim was found with her pants and

underwear pulled down to her knees, the clothing was intact with

no evidence of rips or tears.   Contrast, e.g., Commonwealth v.

Tavares, 27 Mass. App. Ct. 637, 642 (1989), S.C., 57 Mass. App.

Ct. 1111 (2003) (evidence was sufficient to support conviction
                                                                     14


of aggravated rape where, inter alia, victim "woke up without

her pants and her blouse and bra were torn").     In addition, the

autopsy report established that the victim's external genitalia

and anus were normal, and no injuries were noted in these areas.

Contrast, e.g., Commonwealth v. Miller, 435 Mass. 274, 278

(2001) (evidence that victim's thighs were bruised and her

vaginal opening had been injured, together with other evidence,

was sufficient to prove beyond reasonable doubt that defendant

had raped victim).     There also was evidence that the victim had

worked as a prostitute in the past; further, the victim's

daughter indicated that she would not be surprised if the victim

was "going to make some money" the night she was murdered, and

the victim's body was found about one-half mile to one mile from

an area known to be a place that prostitutes frequented with

their customers.

    The Commonwealth's case against the defendant was entirely

circumstantial.    Although the victim ultimately suffered severe

injuries that, the jury could infer, were inflicted in

connection with her murder, there was no evidence favoring the

inference that the defendant raped the victim before killing her

over the inference that he had consensual sex with the victim

and then killed her.    "When the evidence tends equally to

sustain either of two inconsistent propositions, neither of them

can be said to have been established by legitimate proof."
                                                                    15


Commonwealth v. Cannon, 449 Mass. 462, 467 (2007), quoting

Commonwealth v. Fancy, 349 Mass. 196, 200 (1965).    Accordingly,

because the evidence was insufficient to permit a finding of

lack of consent beyond a reasonable doubt, the defendant's

conviction of aggravated rape must be reversed, and the jury's

finding that the defendant was guilty of murder in the first

degree on a theory of felony-murder must be set aside.18

     2.   Expert testimony.   The defendant argues that the trial

judge abused his discretion in admitting the opinion testimony

of Debra McKillop, a criminalist with the State police crime

laboratory (crime lab) at the time the victim's killing was

initially investigated in 1996.    At trial, the defendant

objected to two portions of McKillop's testimony:    (1) that,

based on her experience, she would have expected there to be

some drainage located on the victim's underwear if the victim

had pulled up her underwear following the deposit of semen in

her rectum; and (2) that she would expect to see some


     18
       This conclusion follows from the fact that aggravated
rape was the sole felony put before the jury as a possible
predicate felony for felony-murder in the first degree. The
conclusion, however, does not affect the defendant's murder
conviction because the jury also convicted the defendant on
theories of deliberate premeditation and extreme atrocity or
cruelty, and the evidence was sufficient to support a conviction
on these theories. See Commonwealth v. Evans, 469 Mass. 834,
842-843 (2014), and cases cited (where jury convicts defendant
of murder in first degree under more than one theory, "evidence
supporting either theory would suffice to affirm the verdict").
                                                                  16


interruption or disturbance of the stains on the victim's body,

if the victim had pulled up her pants after the stains had been

deposited.19     The defendant argues that McKillop's opinion

testimony in these areas exceeded the scope of her

qualifications and failed to meet the foundational requirements

for expert testimony.     He further claims that because this

testimony was a pivotal piece of the Commonwealth's case, its

admission was highly prejudicial.20

     "A trial judge has wide discretion to qualify an expert

witness and to decide whether the witness's testimony should be

admitted."     Commonwealth v. Frangipane, 433 Mass. 527, 533

(2001).    "The admission of expert testimony will be reversed

only where it constitutes an abuse of discretion or other error

of law."   Id.    See Commonwealth v. Avila, 454 Mass. 744, 764

(2009) (judge's decision to admit testimony "will not be upset

on appeal if any reasonable basis appears for it" [citation

     19
       The defendant's trial counsel did not state the specific
ground for his objections, but the defendant argues here that it
was apparent from the context that the objection was to the lack
of adequate foundation for McKillop's opinion testimony.
Nothing in our resolution of this issue turns on the point, and
we assume for argument that the defendant is correct.
     20
       The Commonwealth argues that defense counsel raised only
general objections to this testimony at trial and thus did not
preserve the claim, so that the correct standard of review is
whether the error, if any, created a substantial likelihood of a
miscarriage of justice. Because we determine there was no error
in admitting the contested testimony, we need not resolve the
standard of review issue.
                                                                    17


omitted]).    "In qualifying an expert witness, the question for

judicial decision is whether the witness has sufficient skill,

knowledge, and experience in the area of his training to aid a

jury."   Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990).

    McKillop testified at trial that she was employed at the

crime lab from 1986 until her retirement in 2007.     After one

year working as a criminalist in the toxicology unit, she

transferred to the criminalistics section where her experience

entailed going to crime scenes to collect evidence as well as

working on evidence submitted to the crime lab.     The cases she

worked on included fatal or nonfatal shootings, beatings,

stabbings, and sexual assaults, and involved a variety of

evidence including identification of body fluids, including

blood, saliva, and semen, as well as collection of trace

evidence, such as hair, fibers, paint, glass, and gunshot

residue.     Later in her career McKillop was a supervisor in the

criminalistics unit for approximately nine years, and supervised

both the criminalistics and DNA units of the crime lab in the

two years before she retired.     At the time she testified at

trial in 2012, McKillop was the forensic manager of the crime

laboratory of a county sheriff's office in California, where she

was responsible for overseeing the crime scene response unit,

the biology or DNA unit, the firearms unit, and the latent print

unit.    She also has bachelor's degrees in chemistry and
                                                                  18


environmental studies from the University of California in Santa

Barbara.

     McKillop's challenged opinion testimony concerning what she

would expect to see if the victim had pulled up her underwear

and pants following intercourse and following the deposit of the

red-brown stains on her body clearly was based on this extensive

experience.21   The judge did not abuse his discretion in

admitting this testimony.   See Commonwealth v. Rice, 441 Mass.

291, 297-299 (2004) (no abuse of discretion in permitting State

police chemist employed at crime lab to testify to opinion

concerning how long sperm may be found following ejaculation,

based on training and experience);   Frangipane, 433 Mass. at

533-535 (where social worker witness had extensive training,

education, and experience interviewing and treating sexually

abused children, judge had discretion to allow witness to opine

concerning dissociation and recovered memory and fact that


     21
       McKillop was asked explicitly whether, "in [her]
experience," she would expect to see some sort of drainage or
transference of seminal fluid to the victim's underwear.
McKillop responded that drainage is "a common occurrence" and
stated, "in my experience, when examining cases in the
laboratory, we will see a consistency of having a stain on the
garment." Similarly, McKillop was asked, "based on that same
training and experience," whether the stains on the victim's
body appeared to be disturbed, and it was evident from the
context that McKillop's testimony on this topic was based on her
prior work as a criminalist; the defendant is not correct that
McKillop did, or was required to, base her opinions on an expert
level of knowledge of anatomy or physiology.
                                                                    19


victims of trauma may experience them; witness was not required

to be medical doctor).   Compare id. at 535-536 (error to permit

social worker witness to testify about how trauma victim stores,

retrieves, or dissociates traumatic memory because opinions

concerned physical functioning of brain; subject matter area was

proper for medical doctor, not social worker).22

     There was no abuse of discretion or other error in the

trial judge's decision to admit McKillop's testimony.23

     3.   Substitute medical examiner.   The medical examiner who

performed the autopsy on the victim retired approximately twelve


     22
       In contrast to the substitute medical examiner who
testified in this case regarding the anatomy of the rectum and
the sphincter muscle, McKillop did not testify to the physical
functioning of the body; her testimony was limited to opinions
based on her prior observations and experience as a criminalist.
To the extent that, as the defendant claims, the opinions of the
substitute medical examiner and McKillop contradicted each
other, such contradiction goes to the weight of the testimony,
not its admissibility. See Commonwealth v. Rice, 441 Mass. 291,
299 (2004).
     23
       It bears noting that in addition to McKillop, Beth
Saucier Goodspeed, a chemist employed at the State police crime
laboratory, testified at trial that if the victim had pulled up
her pants following the deposit of semen or sperm in her,
Goodspeed would have expected some drainage onto the victim's
underwear. It is also the case that the topic of semen draining
out onto underwear has been addressed by State police
criminalists in other cases. See, e.g., Commonwealth v. Scott,
470 Mass. 320, 323 (2014) (State police criminologist testified
"if somebody is up walking around, . . . semen would be draining
out of her and would be on the underwear if she were wearing
it," and pattern of stains found on victim's skirt was
"consistent with drainage if a person were laying [sic]
horizontal[ly]").
                                                                     20


years before the defendant's trial took place.     A substitute

medical examiner, Dr. Henry Nields, testified at trial regarding

certain findings in the autopsy report:   that the victim's teeth

were broken off; that there was blood in the victim's mouth; and

that there were injuries to the victim's eyelids, nose, neck,

shoulder, clavicular region, arm, and thigh.     He also testified

to his opinion as to the cause of the victim's death.     The

defendant did not object to any of Nields's testimony.        In

addition, the autopsy report and photographs from the autopsy

were introduced in evidence without objection.     The defendant

now argues that admission of the autopsy report and the

substitute medical examiner's testimony about the underlying

findings in the report violated the defendant's constitutional

right to confrontation.24   Because there was no objection to

admission of the report or testimony at trial, we review for a

substantial likelihood of a miscarriage of justice.     See

Commonwealth v. Emeny, 463 Mass. 138, 145 (2012).

     An autopsy report prepared by a medical examiner who is

unable to testify constitutes "inadmissible hearsay whose

admission violate[s] the defendant's right of confrontation

under the Sixth Amendment to the United States Constitution";

     24
        The defendant correctly does not challenge the substitute
medical examiner's opinion testimony as to the cause of the
victim's death. See Commonwealth v. Emeny, 463 Mass. 138, 145
(2012).
                                                                    21


and a substitute medical examiner is not permitted to testify

about the underlying facts and findings of the report on direct

examination.   Id. at 145, quoting Commonwealth v. Walker, 460

Mass. 590, 594 n.6 (2011).    See Commonwealth v. Phim, 462 Mass.

470, 479 (2012).     Thus, neither the report nor Nields's

testimony about the findings in the report should have been

admitted.

    The defendant argues that the admission of this evidence

created a substantial likelihood of miscarriage of justice

because the Commonwealth relied on the evidence about the

victim's injuries to prove that the defendant inflicted them and

then bled on the victim.    The defendant claims this was critical

evidence because there was no other evidence connecting the

defendant to the injuries, and the over-all evidence of guilt

was not so overwhelming as to nullify its effect.     We disagree

for three reasons.

    First, the defendant used the evidence relating to the

autopsy findings and Nields's testimony in particular to help

build his defense.    Specifically, on cross-examination, the

defendant elicited testimony from Nields about his observations

that there were no visible injuries to the victim's genitals or

anus.   The defendant then used this testimony to support his

claim that the evidence was insufficient to prove the

intercourse between the victim and defendant was consensual, and
                                                                  22


defense counsel reiterated the point in his closing argument.

See Commonwealth v. McCowen, 458 Mass. 461, 482 (2010) ("There

can be no substantial likelihood of a miscarriage of justice

where the defendant fails to object to the admission of

testimonial hearsay and then relies on that erroneously admitted

hearsay to challenge the prosecution's theory of the case").

See also Commonwealth v. Nardi, 452 Mass. 379, 395-396 (2008)

(no substantial likelihood of miscarriage of justice where

autopsy findings were admitted without objection and defense

expert "made use of and referenced those findings in his

testimony").

     Second, Nields's testimony about the findings in the

autopsy report is cumulative of the injuries depicted in the

properly admitted autopsy photographs,25 and of Nields's

testimony regarding his review of these photographs.   See

Commonwealth v. Rogers, 459 Mass. 249, 265-266, cert. denied,

132 S. Ct. 813 (2011) (no error in admission of testimony based

on autopsy photographs that constituted independently admissible

evidence); McCowen, 458 Mass. at 481 n.17 ("Dr. Nields, using

the photographs admitted in evidence, properly testified to the

location and nature of the victim's injuries").

     Third, the autopsy report and Nields's testimony about the

     25
       The photographs were admitted through a State police
trooper who attended the autopsy.
                                                                    23


victim's injuries did not relate to an issue contested at trial.

The defendant challenged his identification as the perpetrator

of the injuries, but did not dispute the nature of the injuries

the victim suffered.     Rogers, supra at 266 (testimony by

substitute medical examiner about length and depth of stab wound

was not relevant to any contested issue when defense was lack of

identification of defendant as stabber).26

       In sum, no substantial likelihood of a miscarriage of

justice arose from the erroneous admission of the autopsy report

and Nields's autopsy-related testimony.    The defendant's

argument fails.

       4.   Evidence that the defendant patronized the Brau-Hoff

bar.    Jessie Spencer testified at trial that she was "pretty

certain" the defendant at some (undefined) point had been a

patron of the bar, based on her examination of a photograph of

the defendant the police had shown her in 2008.     The defendant

argues that the testimony was irrelevant because Spencer was

only "pretty certain" the defendant had been a customer at the

bar, and there was no testimony about when.     The defendant


       26
       Contrary to the defendant's suggestion, the fact that the
victim suffered certain injuries did not indicate that the
defendant had inflicted them. In terms of identifying the
defendant as the person who caused the victim's injuries, the
DNA evidence was the relevant evidence. The autopsy report and
Nields's testimony about the autopsy findings did not relate to
DNA evidence.
                                                                    24


alleges that the erroneous admission of this evidence resulted

in the unwarranted inference by the jury that both the victim

and defendant were present at the bar on the night of the

homicide.    There was no error.

    "Evidence is relevant if it has a rational tendency to

prove a material issue."    Commonwealth v. Bresilla, 470 Mass.

422, 436 (2015), quoting Commonwealth v. Dunn, 407 Mass. 798,

807 (1990).    To be relevant, "[e]vidence need not establish

directly the proposition sought; it must only provide a link in

the chain of proof."    Commonwealth v. Gordon, 407 Mass. 340, 351

(1990), quoting Commonwealth v. Tobin, 392 Mass. 604, 613

(1984).    The trial judge has "substantial discretion in deciding

whether evidence is relevant, and whether the prejudicial

implications of such evidence outweigh its probative value."

Commonwealth v. Pina, 430 Mass. 66, 78 (1999), quoting Tobin,

supra.    A judge's determination will not be overturned unless

palpable error is found.    Bresilla, supra.

    The testimony by Spencer that she was "pretty certain" the

defendant had been a patron at the bar was relevant and properly

admitted.    Although the information does not establish that the

defendant was at the bar on the night the victim was murdered,

it has a rational tendency to prove a link, however slight,

between the defendant and victim, and makes the fact that the

defendant encountered the victim on the night of her murder more
                                                                    25


probable than it would be without the evidence.    See Mass. G.

Evid. § 401 (2014).   The absence of any time frame for when the

defendant was a patron of the bar certainly decreases the

probative value of the testimony, but the defendant has failed

to show that the evidence was "unduly" prejudicial, or more

prejudicial than probative.   See Commonwealth v. Arroyo, 442

Mass. 135, 144 (2004).27

     5.   Prosecutor's closing argument.   The defendant contends

that the prosecutor's closing argument was improper in a number

of respects:   the prosecutor unfairly disparaged the defendant's

constitutional right to present a third-party culprit defense,

misstated the law, engaged in improper vouching of evidence, and

misstated the evidence.    The combined effect of the

improprieties, he argues, requires reversal and a new trial.

     There is no question that the prosecutor's argument was

flawed.   Before reaching the principal focus of his attack, the

defendant's third-party culprit theory, the prosecutor told the

jury:

     27
       The defendant also argues that introduction of his
photograph in evidence following Jessie Spencer's testimony
about it was prejudicial; he claims the photograph was similar
to a mugshot, and conveyed to the jury that the defendant had a
criminal history. The defendant's trial counsel specifically
disagreed with this assessment in declining the judge's offer to
provide a limiting instruction. An examination of the
photograph, which is in the record, persuades us that the
defendant's argument on this point is without merit. See
Commonwealth v. Cruz, 445 Mass. 589, 594 (2005).
                                                                  26


    "I'm privileged, and moreover proud to represent the
    citizens of the Commonwealth -- that's who I represent.
    This is not a case about the prosecutor against [the
    defendant]. This is a case about the citizens and [the
    defendant]. Sometimes, that's easy to forget; but you
    should know that the citizens of the Commonwealth, while
    defendants are cloaked in certain fundamental
    constitutional rights, and that's something we all embrace,
    the citizens of the Commonwealth are equally entitled to a
    fair trial. I ask you to hold onto that fundamental
    principle as you listen, and deliberate later on."

    This argument is problematic in two respects.    First, the

jurors, by definition, were themselves all "citizens of the

Commonwealth," and the prosecutor's characterization of his role

as representing the "citizens" ran the risk of suggesting that

the prosecutor was representing the jurors-as-citizens against

the defendant, and in that way misrepresenting or at least

confusing the jurors' actual role as neutral fact finders

charged with weighing all the evidence and determining whether

the Commonwealth had proved the defendant's guilt beyond a

reasonable doubt.   Second and more fundamentally, the

"Commonwealth" in a criminal case is not a shorthand way of

referring to individual citizens, and is not just the name of

the party on the other side of the "versus" from the defendant;

the "Commonwealth" plays a different role, and so does its

attorney.   Although the Commonwealth is entitled to a fair

trial, and although the prosecutor has the responsibility to

argue the Commonwealth's case forcefully, "[n]evertheless, the

fact remains that the prosecuting attorney 'is the
                                                                    27


representative not of an ordinary party to a controversy, but of

a sovereignty whose obligation to govern impartially is as

compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not that it

shall win a case, but that justice shall be done.'"

Commonwealth v. Shelley, 374 Mass. 466, 472 (1978), quoting

Berger v. United States, 295 U.S. 78, 88 (1935).   The

prosecutor's characterization of his role in this case as

representing "the citizens" of the Commonwealth against the

defendant, and the prosecutor's emphasis on the rights of "the

citizens," was at best inappropriate, and far better left

unsaid.

     The majority of the prosecutor's argument was devoted to

attacking the defendant's third-party culprit defense.     In his

closing, particularly near its beginning, the prosecutor

repeatedly sounded the theme that the defense was seeking to

mislead, confuse, and "prejudice" the jury with the presentation

of this defense by presenting information that "lack[ed]

materiality and relevance" -- information that should not even

be called "evidence" because it was so lacking in these

qualities.28


     28
       For example, immediately after asking the jury to "hold
onto" two fundamental "legal principles" -- namely, that the
"citizens of the Commonwealth are equally entitled to a fair
trial" and that "the Commonwealth does not have the burden of
                                                                 28



proving that someone else did not commit the crime," the
prosecutor argued:

         "It's important . . . [to keep these two principles in
    mind] because you've been exposed to information. I will
    not honor it by calling it 'evidence,' because evidence is
    presumed to have relevance and materiality. You've been
    exposed to information that has been advanced in an effort
    to do what real evidence is never supposed to do. It's not
    supposed to invite speculation. It's not supposed to
    divert your attention from the defendant who is on trial.
    It's not supposed to prejudice and confuse the fact finder
    -- that's you, the jury. And yet, I say with a high level
    of confidence, on behalf of the citizens, that that is
    exactly what the effort has been here.

         "It's been regrettable that the Commonwealth must
    respond to information that lacks materiality and
    relevance; but given the course of this trial, the
    Commonwealth is compelled to do so. . . . [W]hy do I say
    that this theory that's been advanced, this information
    that's been advanced, lacks materiality and relevance?
    It's because based on what you've heard . . . there is no
    link -- no link, no discernible link -- between James
    Webber and the murder of [the victim], or between Everett
    Carlson and the murder of [the victim]. Nothing you've
    heard or seen in this court room suggests that at all. In
    that sense, the Commonwealth asks you to think of James
    Webber and Everett Carlson as a couple of bowls of
    spaghetti that have been hurled against the wall in the
    desperate hope that some of it sticks.

    ". . .

    "What about the information you've heard about [Webber and
    Carlson] is not speculative, meant to divert your
    attention, and meant to confuse you?

    ". . .

    "How can you not conclude . . . that this information is
    simply an invitation to you to speculate, to engage in rank
    speculation, or meant to divert your attention or to
    confuse you?

    ". . .
                                                                  29


    "The opportunity to present third-party culprit evidence is

of constitutional dimension, . . . because it is rooted in the

right of criminal defendants to a meaningful opportunity to

present a complete defense" (quotations and citations omitted).

Scott, 470 Mass. at 327.   Pursuant to the trial judge's rulings,

the defendant here was fully entitled to present evidence and

argue his third-party culprit defense centered on James Webber

and Everett Carlson.   Although the prosecutor was permitted to

comment on the defense strategy and tactics, and was not beyond

bounds in arguing that the strategy was intended to confuse,

see, e.g., Commonwealth v. Raposa, 440 Mass. 684, 697 (2004),

what may be permissible if stated once may become less so

through constant repetition.   Although the prosecutor did not

describe the third-party defense as a "sham," see Commonwealth

v. Lewis, 465 Mass. 119, 130 (2013), and although he did not say

that the defendant or his counsel were "intentionally

misleading" the jury, see Commonwealth v. Fernandes, 436 Mass.

671, 674 (2002), his repeated characterization of the defense

evidence as irrelevant and immaterial "information," unworthy of




    "Do you get the impression . . . based on all of that
    inconsistent evidence, do you get the impression of what I
    suggested to you in the beginning -- the attempt to confuse
    you, and to confuse the issue? This is stuff that should
    never have been heard by the jury. It's irrelevant, and
    it's immaterial."
                                                                  30


even being called "evidence"; his complaint that it was

"unfortunate" the Commonwealth even had to respond to it; and

his several rhetorical questions asking about the misleading and

speculative nature of the third-party culprit defense (see note

28, supra) came close.   These comments and questions both

misstated the law -- the judge had specifically allowed the

third-party evidence to be introduced as "evidence" -- and

verged on suggesting that the entire third-party culprit defense

was improper and should not have been presented.29

     "In determining whether an error in closing argument

requires reversal, we consider whether defense counsel made a

timely objection; whether the judge's instructions mitigated the

error; whether the error was central to the issues at trial or

concerned only collateral matters; whether the jury would be

able to sort out any excessive claims or hyperbole; and whether

the Commonwealth's case was so strong that the error would cause

no prejudice."   Scott, 470 Mass. at 335, quoting Commonwealth v.




     29
       The Massachusetts Guide to Evidence (2015) contains a
section setting out in comprehensive fashion the principles
governing proper and improper opening statements and closing
arguments, and provides citations to relevant decisions of this
court and the Appeals Court on these subjects. See Mass. G.
Evid. § 1113 (2015). Particularly in light of the availability
of this resource, going forward, there should be even less
excuse than at present for prosecutors as well as defense
counsel to stray beyond the bounds of proper argument.
                                                                    31


Harris, 443 Mass. 714, 732 (2005).30    Here, the first three

factors weigh in the defendant's favor in whole or in part.       On

the first, the defense counsel objected both during and after

the Commonwealth's closing.31    As for the second factor,

mitigation of the prosecutorial error by the judge's

instruction, the judge overruled the defense counsel's objection


     30
          See Commonwealth v. Lewis, 465 Mass. 119, 130 (2013):

          "When determining whether error in a prosecutor's
     closing argument requires reversal, we consider (1) whether
     the defendant seasonably objected; (2) whether the error
     was limited to collateral issues or went to the heart of
     the case; (3) what specific or general instructions the
     judge gave to the jury which may have mitigated the
     mistake; and (4) whether the error, in the circumstances,
     possibly made a difference in the jury's conclusion. . . .
     With respect to the fourth factor, we consider whether the
     jury, to whom we ascribe a certain level of sophistication,
     would be able to sort out a prosecutor's excessive claims;
     and we look to see if the Commonwealth's case was
     overwhelming" (citations and quotations omitted).
     31
       The defendant's first objection followed the prosecutor's
suggestion, quoted in note 28, supra, to the effect that the
defense was seeking to confuse the jury with the third-party
culprit evidence and that such evidence should not have been
heard by the jury.

     The second objection by the defense, lodged at the end of
the prosecutor's closing, was two-fold. The defendant's trial
counsel objected to the prosecutor's remarks suggesting the
defense had "compromised" the Commonwealth's right to a fair
trial by raising a third-party culprit defense. Counsel also
objected to the prosecutor's statements suggesting that the
defense had presented evidence that the jury should not have
heard. He asked for curative instructions with respect to both
sets of remarks by the prosecutor, a request the judge granted
in part. We discuss the judge's curative instruction in the
text, infra.
                                                                     32


during the closing but, thereafter, the judge did give one

limiting instruction after the prosecutor completed his closing,

in partial response to the defendant's objections.32     The

instruction did help mitigate the prosecutor's improper

misstatements belittling and mischaracterizing the evidence

relied on by the defendant for his defense -- although it would

have been appropriate, as the defendant had requested, to

explain more directly the prosecutor's overreaching, and in

particular to have addressed specifically the prosecutor's

repeated assertions that the third-party culprit evidence was

"irrelevant" and "immaterial."33     Finally, on the third factor,


     32
          The judge told the jury:

          "It was suggested to you that certain    testimony given
     in this court should only be considered by    you as
     'information,' and not as evidence in this    trial. I've
     told you before, and I'm going to instruct    you [hereafter],
     that sworn testimony given in this case is    evidence, and
     you shall consider as evidence.

          "You were also told that there was evidence that you
     never should have heard in this case, that you as the jury
     should not have heard in this case, and that it was
     irrelevant evidence. I've told you before that I rule on
     the admissibility of evidence, and anything that you heard
     in this case, I have ruled on -- in consultation with
     counsel, many times. I have ruled that the evidence that
     you heard is admissible; and that's the end of that story.
     You shall consider it as evidence."
     33
       The judge declined to act on defense counsel's other
request, that the judge explain to the jury that the defendant
was entitled to raise a defense concerning the possibility of
third-party culprits and his doing so could not be taken as
interfering with the Commonwealth's right to a fair trial. A
                                                                  33


the argument errors of the prosecutor related in whole or in

part to the third-party culprit defense, which was the heart of

the defense.

     The final factor we consider concerns the strength of the

Commonwealth's case:   does the strength eliminate the

possibility of prejudice arising from the prosecutor's argument?

The evidence leads us to conclude that the Commonwealth's

evidence did so.   The DNA evidence unquestionably pointed to the

defendant, and not Webber or Carlson (or anyone else), as the

person responsible for the victim's death.   That is, there was

no DNA evidence tying Webber to the victim, essentially none

tying Carlson,34 extremely little linking an unidentified

person,35 and the defendant was the sole source of the DNA

located in the victim's rectum.   As indicated previously, the

DNA evidence from the rectum by itself indicates only that the

defendant had intercourse with the victim close to the time of


curative instruction with this substantive message would have
been appropriate.
     34
       One of the stains on the victim's underwear could have
come from half of all males, including Carlson (as well as the
defendant). The statistical probability that Carlson was the
source of the DNA on the stain is so low that it is virtually
meaningless.
     35
       As explained previously, one of the areas of the victim's
underwear that was tested led to generation of a partial male
DNA profile that did not match the defendant, Webber, or
Carlson. No further evidence covering the possibility of
another possible culprit beyond these three was offered.
                                                                  34


her death, not that he killed her.   However, when this DNA

evidence is combined with (1) the absence of drainage on the

victim's underwear, suggesting the victim had not pulled up her

pants and underwear after intercourse and before she was killed;

(2) bloodstains -- or what were certainly most likely to be

bloodstains -- on the victim's hip, knee, and sneaker, all of

which were consistent with the defendant's DNA, and one of which

would have matched only one in 1.366 billion randomly selected

Caucasians;36 and (3) the fact that none of these fragile stains

was smeared or disturbed in any way -- again suggesting the

victim had not pulled up her pants and underwear -- the

conclusion that the defendant killed the victim seems almost

inescapable.37


     36
       The defendant argues that it is a misstatement of the
evidence to refer to the red-brown stains found on the victim's
hip, right thigh-left knee area, and sneaker as bloodstains, as
the prosecutor did in his closing. We disagree. All three
stains found on the victim screened positive for blood, and one
of them was confirmed as blood by additional testing. Moreover,
as summarized here in the text, all three stains were consistent
with the defendant's DNA, one of them overwhelmingly so. The
prosecutor's argument on the point was proper, and the evidence
strongly supports the verdict.
     37
       The defendant also contended the prosecutor "improperly
vouched on the evidence" in his closing. The defendant points
to the prosecutor's comment, "I say with a high level of
confidence, on behalf of the citizens" that the defense was
seeking to divert the jury with the third-party culprit defense.
See note 28, supra, where the prosecutor's comment is quoted in
full. As discussed in the text, we consider the prosecutor’s
comment to have been improper, but vouching is not the issue.
As the defendant points out, improper vouching occurs when the
                                                                  35


     In sum, there is no question the defendant had the right to

advance a third-party culprit defense, and no question that the

prosecutor's argument improperly sought to impugn that defense.

But even considering the entire case through the lens supplied

by G. L. c. 278, § 33E, we are persuaded that the DNA evidence

pointing to the defendant as the person who killed the victim

requires the conclusion that the defendant, in the end, was not

prejudiced by the prosecutorial errors.38   A new trial is not

warranted.

     6.   Jury instruction on third-party culprit evidence.   The

defendant also argues that the judge committed reversible error

by declining to give the defendant's proffered instruction on

the third-party culprit defense.   There was no error.

     The judge instructed the jury:

          "The Commonwealth does not have the burden of proving
     that no one else may have committed the murder, nor does
     the defendant have to prove that another person committed


prosecutor personally expresses a belief in the credibility of a
witness. See Commonwealth v. Tu Trinh, 458 Mass. 776, 786
(2011).
     38
       It is also the case that most of the prosecutor's
improper comments were made in the first part of his long
closing. (The prosecutor's closing lasted for approximately
fifty minutes.) Thereafter, the prosecutor principally focused
his attention on the specifics of the trial evidence, and
marshalled the evidence to refute the substance of the third-
party culprit defense. This was an eminently permissible and
appropriate approach and, given the length of the closing, may
have blunted the impact of the earlier improper comments. It is
important to consider the prosecutor's argument as a whole. See
Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002).
                                                                   36


     the offense charged. The Commonwealth does have the burden
     to prove the defendant's guilt by proof beyond a reasonable
     doubt."

     To date, this court has not held that where third-party

culprit evidence is admitted, a judge is required to give an

instruction on it, as long as the judge explains that "the

Commonwealth's burden includes the obligation to prove beyond a

reasonable doubt that the defendant committed the crime."

Commonwealth v. Hoose, 467 Mass. 395, 412 (2014).   The judge's

instructions did this, and the quoted instruction at least

specifically mentioned the type of evidence at issue.   Although

giving the defendant's proposed instruction on third-party

culprit evidence39 would have been appropriate -- especially in


     39
       The instruction requested by the defense stated in
relevant part:

          "Although the defendant is under no obligation to
     prove his innocence, the defendant has raised the defense
     of other persons who you could find had motive,
     opportunity, or reason to have killed [the victim].
     Although such persons are not on trial, the defendant has
     brought forward some evidence which might indicate that a
     third party, not the defendant, committed the crime for
     which the defendant is charged. The defendant must show
     some evidence which, if believed, tends to directly connect
     a third party to the crime. The defendant offers the
     third-party culprit testimony not to prove the guilt of the
     third party, but for your consideration as to the guilt of
     the accused. You must consider if this evidence raises a
     reasonable doubt as to the defendant's guilt. Keep in
     mind, however, that the defendant is not required to prove
     another person committed the crime. On the other hand, the
     Commonwealth does not have the burden of proving that no
     one else may have committed the offenses. In the end, the
     burden remains with the Commonwealth to prove the
                                                                   37


light of the prosecutor's closing argument -- the judge was not

required to do so.

    7.   Review under G. L. c. 278, § 33E.     We have reviewed the

evidence and the trial record thoroughly and carefully pursuant

to our obligation under G. L. c. 278, § 33E.    We conclude that

the defendant's conviction of aggravated rape must be reversed,

but find no basis for any additional relief.

    8.   Conclusion.   With respect to the charge of aggravated

rape, the defendant's conviction is reversed, the jury's finding

of guilt is set aside, and judgment shall enter for the

defendant.   The defendant's conviction of murder in the first

degree is affirmed.

                                    So ordered.




    defendant's guilt of the crime charged beyond a reasonable
    doubt."
