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14-P-1004                                             Appeals Court

                COMMONWEALTH    vs.   ALEXANDER MATTEI.


                             No. 14-P-1004.

            Essex.       May 10, 2016. - October 27, 2016.

                Present:   Cypher, Blake, & Henry, JJ.


Assault with Intent to Rape. Assault and Battery.
     Deoxyribonucleic Acid. Evidence, Expert opinion, Cross-
     examination. Witness, Expert, Cross-examination.
     Practice, Criminal, Instructions to jury, Argument by
     prosecutor, Confrontation of witnesses. Constitutional
     Law, Confrontation of witnesses.



     Indictments found and returned in the Superior Court
Department on May 22, 2002.

     Following review by the Supreme Judicial Court, 455 Mass.
840 (2010), the cases were tried before Timothy Q. Feeley, J.


     Karl R.D. Suchecki for the defendant.
     Catherine L. Semel, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.       The defendant, Alexander Mattei, appeals from

his convictions of assault with intent to rape and assault and

battery.    On appeal, the defendant challenges:    (1) the
                                                                     2


admission of testimony of a substitute DNA analyst; (2) the

judge's ruling curtailing cumulative cross-examination regarding

what effect information regarding the criminal histories of

other workers at the victim's residence might have had on the

police investigation; (3) the judge's failure to give a Bowden1

instruction; and (4) statements by the prosecutor in closing

argument.    We affirm.

     Background.    In April, 2002, the defendant and three other

inmates were on work release from the Lawrence Correctional

Alternative Center on the day of the incident.    They were

working at a housing complex for the elderly and disabled, which

is run by the Andover Housing Authority.    The victim, a resident

of the housing complex, was attacked in her apartment and

"sustained numerous trauma about her face."     She was taken by

ambulance to the hospital for treatment.     From there the victim

was transferred to New England Medical Center, where she was

treated by eye specialists.

     1.    The substitute analyst.   The defendant claims that

admission of the deoxyribonucleic acid (DNA) opinion testimony

of crime laboratory analyst Brian Cunningham violated his

confrontation rights because Cunningham:     (1) did not conduct

the DNA testing in this case; (2) was not employed by the crime


     1
         See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980).
                                                                      3


lab at the time the testing was conducted by analyst Stacey

Edward; and (3) reached a conclusion that "conflicted in

significant part" with the conclusion of the analyst (Edward)

who conducted the DNA testing concerning two key pieces of

evidence (mixed sample DNA recovered from the defendant's

sweatpants and the interior doorknob of the victim's apartment).

    At trial, the defendant objected to Cunningham's testimony

only because Edward had conducted the original testing.      There

was no error in the admission of the testimony.    An expert may

testify as to his opinion, even if it is based on work conducted

by another analyst.   See Commonwealth v. Nardi, 452 Mass. 379,

390-391 (2008); Commonwealth v. Barbosa, 457 Mass. 773, 786

(2010); Commonwealth v. Grady, 474 Mass. 715 (2016) (substitute

analyst may testify to own opinion based on substitute analyst's

review of underlying data).

    The defendant made no reference in his objection to the

timing of Cunningham's employment at the lab or the nature of

Cunningham's conclusions.     Cunningham testified that the testing

of each item had been conducted by Edward; he had reviewed her

testing and reached his own conclusions that formed the basis

for his testimony in court.    According to the defendant,

effective confrontation was hampered by the fact that Cunningham

was not employed at the lab at the time the testing was
                                                                   4


conducted and that his opinion regarding the results conflicted

with the original analyst.

     The defendant relies on Commonwealth v. Tassone, 468 Mass.

391 (2014), to support his argument that his confrontation

rights were abridged because Cunningham was not employed at the

lab when Edward conducted the test.   This case is

distinguishable from Tassone, in which the testifying expert was

never employed by the lab that performed the testing and,

therefore, had no personal knowledge of its evidence handling

and testing protocols.   See id. at 401.   Here, Cunningham was

employed by the lab that conducted the DNA analysis and

testified to his familiarity with the protocols and review

procedures during the relevant time period.    Cunningham's

employment at the lab began one month after Edward performed the

DNA analysis in 2002; thus, Cunningham was working there in

March, 2003, when Edward's work underwent technical and

administrative review.   Unlike in Tassone, the defendant here

had "a meaningful opportunity to cross-examine the expert as to

the reliability of the underlying facts or data."2   Id. at 402.




     2
       "With DNA analysis, the testing techniques are so reliable
and the science so sound that fraud and errors in labeling or
handling may be the only reasons why an opinion is flawed."
Commonwealth v. Jones, 472 Mass. 707, 716 (2015), quoting from
Commonwealth v. Barbosa, 457 Mass. 773, 790 (2010).
                                                                      5


    Although the defendant complains that he was unable to

question Cunningham about a mix up of the DNA samples because

Cunningham was not employed by the lab at that time, the

defendant was able to question the person who was ostensibly

responsible for the error, Carol Courtwright, the forensic

chemist who testified about the collection and handling of DNA

evidence.    She was also meaningfully cross-examined.

    Inasmuch as the defendant challenges the discrepancy

between the conclusion drawn by Cunningham, who testified that

the DNA profile constituted a "match," and the prior testimony

of Edward, who testified that she could not exclude the

defendant as a potential source of the DNA samples, Cunningham

properly testified to his own conclusions, based on his

independent review of Edward's testing.    "[S]uch testimony is

permissible provided that the testifying analyst 'reviewed the

nontestifying analyst's work, . . . conducted an independent

evaluation of the data,' and 'then expressed her own opinion,

and did not merely act as a conduit for the opinions of

others.'"    Commonwealth v. Jones, 472 Mass. 707, 715 (2015),

quoting from Commonwealth v. Greineder, 464 Mass. 580, 595

(2013).     An expert witness may testify to his or her independent

opinion, even if based on a nontestifying analyst's test

results, without violating a defendant's confrontation rights

under the Sixth Amendment to the United States Constitution or
                                                                    6


art. 12 of the Declaration of Rights of the Massachusetts

Constitution.

    2.   The limit on cumulative cross-examination.    The

defendant argues that the judge erred by restricting his

cross-examination of Sergeant Mark Higginbottom, from whom the

defendant sought to elicit testimony showing that the police

investigation was compromised by their failure to inquire into

the criminal histories of other workers at the victim's

residence.

    At trial, the defendant sought to demonstrate that had

police known about the criminal records of certain other

potential suspects, that knowledge would have shifted the focus

of their investigation away from the defendant.   "It is well

settled that a defendant has a right to expose inadequacies of

police investigation."   Commonwealth v. Reynolds, 429 Mass. 388,

391 (1999).   Sergeant Higginbottom testified on cross-

examination that he did not investigate the criminal history of

other workers at the victim's residence.   The judge then

restricted the defendant to inquiring of only one police

witness, lead investigator Sargent Charles Heseltine, as to

whether knowledge of the criminal histories of other suspects

would have made a difference to the investigation.    Defense

counsel elicited testimony from Sergeant Heseltine that, had he
                                                                     7


known of the criminal records of certain other suspects, he

would have changed the focus of his investigation.

    Because evidence concerning the failure of the police to

conduct a thorough investigation was introduced though the

testimony of Sergeant Heseltine, there was no error and no abuse

of discretion in limiting the cross-examination of Sergeant

Higginbottom, whose testimony would have been cumulative of the

permitted evidence.   See Commonwealth v. Perez, 444 Mass. 143,

149-150 (2005), quoting from Commonwealth v. Reynolds, 429 Mass.

388, 391 (1999) ("When viewed in the entirety of the

examination, it could not be said that [the defendant] was

denied his 'right to expose inadequacies of [the] police

investigation,' or that the judge abused his discretion in

sustaining the Commonwealth's objection in light of the

speculative, collateral, and potentially prejudicial subject

matter that would be opened up by requiring this witness to

answer the questions put by defense counsel"); Commonwealth v.

Bonds, 445 Mass. 821, 831 (2006).    See also Mass. G. Evid. § 403

(2015) (trial judge has discretion to exclude evidence if it is

merely cumulative).

    3.   The Bowden instruction.    The defendant further argues

that, because the defense theory rested mainly on inadequacies

of the police investigation, the judge's refusal to issue a

Bowden instruction impaired his ability to present a full
                                                                    8


defense.    See Commonwealth v. Bowden, 379 Mass. 472, 485-486

(1980).    "[A] judge is not required to instruct on the

inadequacies of a police investigation.     Bowden simply holds

that a judge may not remove the issue from the jury's

consideration."    Commonwealth v. Williams, 439 Mass. 678, 687

(2003), quoting from Commonwealth v. Boateng, 438 Mass. 498,

506-507 (2003).    See Commonwealth v. Avila, 454 Mass. 744, 767

(2009) (Bowden makes it "clear that a judge may not remove the

issue of a biased or faulty police investigation from the jury,"

but "the giving of [a Bowden] instruction is never required").

    Here, the judge did not remove the issue from the jury's

consideration, but rather permitted the defendant to elicit

testimony concerning the failure of the police to collect

evidence and investigate other potential suspects "and so

complied fully with Bowden's only requirement."     Williams,

supra.    The issue, pressed by defense counsel in his closing

argument, was properly before the jury.    Accordingly, there was

no abuse of discretion in the judge's refusal to give a Bowden

instruction.

    4.     The closing argument.   Finally, the defendant argues

that the prosecutor created a substantial risk of a miscarriage

of justice during her closing argument by appealing to the

sympathy of jurors, shifting the burden of proof onto the
                                                                   9


defendant, opining on the strength of the Commonwealth's

evidence, and misstating the evidence.

    The defendant claims that the prosecutor engaged in

speculation and sought to evoke sympathy for the victim when she

stated that the defendant believed that he could overcome a

visually impaired woman who would be unable to identify him, and

again when she stated that the victim "would have submitted, and

[the defendant] would have put his penis in her anus but for the

fact that something spooked him."   Contrary to the defendant's

claim that the prosecutor's statements amounted to speculation,

there was evidence from which a jury could have found that the

defendant knew the victim to be visually impaired and intended

to penetrate her when he ordered her to pull down her underpants

and thrust his penis against her buttocks.     "Because the line

separating speculation and inference is often a fine one, 'we

must and do recognize that closing argument is identified as

argument.'"   Commonwealth v. Bresilla, 470 Mass. 422, 437-438

(2015), quoting from Commonwealth v. Kozec, 399 Mass. 514, 517

(1987).   The statements complained of are reasonable inferences

based on the evidence presented at trial, and not so

inflammatory as to encourage the jury to determine the verdict

on the basis of sympathy for the victim.   Compare Commonwealth

v. Baran, 74 Mass. App. Ct. 256, 283 (2009).
                                                                    10


    The next claim concerns the prosecutor's use of rhetorical

questions concerning the defendant's motive in knocking on the

victim's door.   The defendant correctly states the general rule

that "rhetorical questions should not be used in closing

argument where they could be perceived by the jury as shifting

the Commonwealth's burden of proof to the defendant."

Commonwealth v. Habarek, 402 Mass. 105, 111 (1988).     See Mass.

G. Evid. § 1113(b)(3)(E) (2016).   However, viewed in context,

the questions did not intimate that the defendant had an

affirmative duty to present evidence, but rather suggest that

the defendant's explanation for knocking on the victim's door

was implausible, and that he had already formed an intent to

assault her when he observed her entering her apartment.     We

perceive no burden shifting in the prosecutor's use of

rhetorical questions.   See Commonwealth v. Nelson, 468 Mass. 1,

13 (2012).

    The defendant also takes issue with the prosecutor's

description of evidence against the defendant as "overwhelming,"

citing Commonwealth v. Tuitt, 393 Mass. 801, 811 (1985), for the

proposition that a prosecutor may not express personal opinion

as to the strength of the Commonwealth's case.   The prosecutor's

remarks in this case are distinguishable from those in Tuitt,

where the prosecutor opined that the defendant was guilty,

whereas here, the prosecutor stated that the evidence
                                                                     11


demonstrated the defendant's guilt.     "Even if use of the term

had been improper, which it was not on this record, it is the

type of rhetorical flourish that the jury could put in

perspective."   Commonwealth v. Jenkins, 458 Mass. 791, 798

(2011).

    The defendant asserts that the prosecutor improperly

injected her opinion at several other points of closing

argument, first stating that there was "only one person" to whom

the evidence pointed, next presenting her own theory as to how

to resolve conflicting evidence regarding whether the victim had

locked her door, and finally characterizing chemist

Courtwright's mistakes in handling evidence as insignificant.

While a prosecutor's statement of personal belief regarding a

defendant's guilt is improper, we do not regard the statements

about which the defendant complains here as expressions of

opinion, but rather as counter-arguments made in response to

defense counsel's closing statements.    In closing argument,

defense counsel claimed that there were multiple suspects who

could have committed the assault, that the victim had locked her

door and the defendant did not have a key, and said of

Courtwright, "Can you trust anything she did?"     "The prosecutor

was entitled to offer a response to defense counsel's closing

argument."   Bresilla, 470 Mass. at 438.   "The argument, although

not one that flows inevitably from the evidence, asked the jury
                                                                   12


to draw . . . inference[s] that 'w[ere] reasonable and possible'

(citation omitted)."    Commonwealth v. Mazariego, 474 Mass. 42,

58 (2016).

     The defendant also maintains that the prosecutor misstated

evidence in her closing argument.   The prosecutor asserted that

chemist Courtwright mistakenly placed samples from another case

in a box with samples from the defendant's case only after the

defendant's DNA evidence had already been sent away to be tested

at the lab.3   Courtwright herself testified that she was unsure

when the evidence was mixed, and that she examined samples from

the defendant's case in September, a month after she began work

on the other case.    The prosecutor appears to have misstated the

evidence.    See Mass. G. Evid., § 1113(b)(E)(3).   However, the

discrepancy between Courtwright's testimony and the prosecutor's

statements does not appear to be material and there is nothing

to suggest that the misstatement was intentional.    Confronted at

trial with evidence of a DNA match, the defendant did not pursue


     3
       Regarding Courtwright's mixing of DNA samples, the
prosecutor stated:

     "[L]et me suggest to you to at least look at the point at
     which it happened. After she's processed the evidence.
     After the evidence is going to go for DNA testing, has
     already gone to DNA testing, and will never come back.
     That's the evidence that was contaminated with the
     Pittsfield murder evidence. That's the point at which that
     went in. Is it wrong? Yes. But was her guard maybe down
     a little bit about how carefully she was handling things
     when she was done with her work on this case."
                                                                  13


the theory that the evidence was contaminated by the samples

from another case, a reasonable approach where, as here, "a DNA

match is 'itself striking confirmation' that the laboratory

tested the correct sample."   Greineder, 464 Mass. at 597 n.18,

quoting from Williams v. Illinois, 132 S. Ct. 2221, 2238 (2012).

Instead, defense counsel used the mixed samples to impeach the

credibility of the Commonwealth's witness, for which purpose the

timing of her mistake was irrelevant.   Moreover, the judge

instructed jurors at the start and close of trial that arguments

are not evidence in this case.   "[I]nstructions from the judge

inform the jury that closing argument is not evidence, and

instructions may mitigate any prejudice in the final argument."

Bresilla, supra at 437, quoting from Kozec, 399 Mass. at 517.

The prosecutor's erroneous statement did not give rise to a

substantial risk of miscarriage of justice.

                                    Judgments affirmed.
