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SJC-11303

                    COMMONWEALTH   vs.   ROBERT SCOTT.1



        Suffolk.       September 5, 2014. - December 26, 2014.

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


Homicide. Evidence, Third-party culprit. Constitutional Law,
     Fair trial. Due Process of Law, Fair trial. Fair Trial.
     Jury and Jurors. Practice, Criminal, Capital case, Fair
     trial, Argument by prosecutor, Jury and jurors,
     Substitution of alternate juror, Question by jury,
     Instructions to jury.



     Indictment found and returned in the Superior Court
Department on December 19, 2008.

    The case was tried before Peter M. Lauriat, J.


     Ruth Greenberg for the defendant.
     Paul B. Linn, Assistant District Attorney, for the
Commonwealth.


    LENK, J.       In December, 1984, a young woman was found dead,

her body badly beaten, in a vacant lot in Boston.         Twenty-three


    1
        Also known as Sultan Omar Chezulu.
                                                                   2


years later, deoxyribonucleic acid (DNA) was extracted from

samples taken from the victim's body and clothing soon after her

death and run through a national computerized database.   A match

was found with the defendant's DNA.   The defendant was tried for

murder in the first degree.   His defense at trial was that he

had had consensual sex with the victim but had not been the

killer.   The jury returned a verdict of guilty on theories of

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

The defendant appeals from his conviction.

    The defendant claims that the evidence was insufficient to

support the verdict, and that other errors in the proceedings

require a new trial.   These include the judge's exclusion of

evidence purported, by the defendant, to show that police had

investigated the case inadequately or that the crime might have

been committed by a third party; the prosecutor's remarks, in

his closing argument, that there had been no evidence that the

victim had engaged in "risky behavior"; and the judge's

instruction to the jury, after one original juror had been

discharged, that an alternate juror should get "up to speed"

about a question that had been posed by the jury and answered by

the judge.

    Having reviewed the entire record pursuant to G. L. c. 278,

§ 33E, we discern no error requiring reversal, and no cause to
                                                                      3


exercise our authority to reduce the defendant's conviction to a

lesser degree of guilt or to order a new trial.

     1.   Facts.   We summarize the facts the jury could have

found, reserving certain details for later discussion.

     In December, 1984, the victim's body was found by a

passerby in a vacant lot in Boston.    She was eighteen years old.

An autopsy revealed that the victim had suffered multiple blunt

impact injuries to her head, fractures to her skull, lacerations

and contusions to her face, and fractured and loosened teeth.        A

sock had been tied as a ligature around the victim's neck.      She

had been alive when her injuries were inflicted.

     Although the victim was identified, the case remained

unsolved for many years.    After being contacted by the victim's

sister in 2006, the Boston police department reopened the case.

Police reexamined evidence collected in the original

investigation, including the victim's clothing and vaginal and

anal swabs taken from her body at the autopsy.

     The vaginal and anal swabs, as well as a stain from the

victim's skirt, were found to contain sperm cells.     DNA testing

was performed on those cells, and the DNA pattern found in the

cells was run through a national database.2   The database



     2
       Most of the information in this database, the combined DNA
index system (known as CODIS), concerns individuals who have
                                                                   4


returned a match with the defendant's DNA.   The likelihood that

the DNA pattern shared by the defendant and by the tested

samples would be found in a random individual was one in at

least 430 million.

     The evidence reexamined by police also included a pair of

underwear found on the ground about five or six feet away from

the victim's body.   DNA matching the victim's DNA was found on

the underwear.   No sperm cells were detected on them.

     The defendant was living and working in Boston at the time

of the victim's death.   By 2008, when the case was again being

investigated, he was living in Atlanta, Georgia.   Boston police

detectives traveled to Atlanta in late 2008 to arrest the

defendant.   After he was arrested and brought back to Boston,

the defendant said to a detective, "I have to face the music

now."3

     At trial, the theory of the defense was that the defendant

had had consensual sex with the victim prior to her death, but

that he was not her killer.   The defendant sought to introduce

evidence suggesting that the victim might have been killed by

third parties or that the police investigation had been lacking.


been convicted of crimes.   The nature of the database was not
revealed to the jury.
     3
       The defendant was also wanted on a charge of failure to
register as a sex offender, a fact not disclosed to the jury.
                                                                   5


As discussed in detail infra, the judge excluded much, though

not all, of this evidence.

     The victim's sister and the victim's friend and former

neighbor testified that they had never heard of the defendant

and that the victim had never been with older men or with men

who did not speak Spanish.4   The victim's sister also testified

that the victim had been at home during the nights of the week

of Christmas, 1984, including the night before the victim was

killed; and that, on the day of the killing, the victim had left

home early in the morning and had worked until 6 P.M.

     A police criminologist, Kevin Kosiorek, opined that the

sperm found in the victim's body had been deposited there around

the time of her death and at the location where she was

discovered.   This opinion was based, in part, on the fact that

no sperm cells were detected on the victim's underwear;

according to Kosiorek, "if somebody is up walking around, . . .

semen would be draining out of her and would be on the underwear

if she were wearing it . . . ."   Kosiorek also stated that the

pattern of stains found on the victim's skirt was "consistent

with drainage if a person were laying [sic] horizontal[ly]."


     4
       The defendant had been thirty-six years old at the time of
the victim's death. In closing argument, the prosecutor invited
the jury to assume that the defendant did not speak Spanish; no
evidence concerning this matter was introduced, however.
                                                                   6


     Kosiorek provided the opinion that sperm "heads," which

were identified in this case, are usually detectible only within

"a day or maybe a little more" after sexual intercourse.      In

addition, while only small quantities of sperm and seminal fluid

were collected, Kosiorek explained that the amounts collected

are not indicative of the amounts actually deposited, and that

the amounts deposited are, in any event, poor indicators of the

timing of intercourse.5

     Soon after being charged, the jury submitted a note to the

judge, asking, "[C]ould the defense have independently tested

any of the physical evidence?"   The judge sent back a note

stating, "Whether the defendant could seek his own testing of

any physical evidence is not a question that was addressed by

the evidence.   Because you are to confine your deliberations to

the evidence presented at the trial, you should not further

consider or discuss that question."




     5
       The defendant's expert, Brian Wraxall, testified about a
study that had found that sperm cells can be identified "up to
about five and a half days" after sexual intercourse. Wraxall
also opined that, based on the amounts of seminal fluid and
sperm cells collected in this case, intercourse had occurred
"between . . . probably from about an hour to at least . . .
[twenty-four] hours" prior to the victim's death.
                                                                     7


     On the morning after the jury began deliberating, one juror

was discharged because she had failed to appear in court.6   The

discharged juror was replaced by an alternate.    As discussed

more fully infra, the judge instructed the newly-constituted

jury that they were to "start [their] deliberations all over

again."   The judge also stated that the question posed by the

jury on the previous day "should be shared with our new juror as

well so he is up to speed on communications that our

deliberating jury has had with the court."

     On the afternoon of the same day, the jury returned a

guilty verdict, convicting the defendant of all three theories

of murder in the first degree.

     2.   Sufficiency of the evidence.   The defendant argues that

the evidence at trial was insufficient to support the verdict.

He asserts that, although ample evidence demonstrated that he

had had sexual relations with the victim, there was no evidence

connecting him to her death.

     Our inquiry is "whether, after viewing the evidence in the

light most favorable to the Commonwealth, any rational trier of

fact could have found the essential elements of the crime beyond

     6
       The defendant objected to the decision to discharge the
juror, noting that he "fe[lt that] this juror is favorable to
him." He does not press this objection on appeal, and we
discern no error. Another juror had been excused, with the
parties' consent, during trial, when he felt poorly and was
taken to the hospital.
                                                                     8


a reasonable doubt."    Commonwealth v. Woods, 466 Mass. 707, 712-

713 (2014), citing Commonwealth v. Latimore, 378 Mass. 671, 677–

678 (1979).    "[T]he evidence and the inferences permitted to be

drawn therefrom must be 'of sufficient force to bring minds of

ordinary intelligence and sagacity to the persuasion of [guilt]

beyond a reasonable doubt.'"    Commonwealth v. Latimore, supra at

677, quoting Commonwealth v. Cooper, 264 Mass. 368, 373 (1928)

(second alteration in original).     Circumstantial evidence alone

may suffice.    Commonwealth v. Woods, supra at 713, citing

Commonwealth v. Nolin, 448 Mass. 207, 215 (2007).     The evidence

in this case satisfies these requirements.

    As detailed, the evidence was not limited to the fact that

sperm cells matching the defendant's DNA were found in the

victim's body and on her clothing.    The pattern of sperm on the

victim's skirt, and the absence of sperm on the victim's

underwear, indicated that the sperm had been deposited around

the time of the victim's death and at the location where her

body was discovered.    The people closest to the victim, namely

her sister and her friend and former neighbor, testified that

they had never heard of the defendant and that the victim had

never been with older men or with men who did not speak Spanish.

The victim's sister also testified to the victim's whereabouts

on the day of her death and on the preceding nights.     All of

these pieces of evidence tended to negate the possibility that
                                                                      9


the defendant had had sex with the victim on some prior occasion

unrelated to her death.     Finally, the defendant stated to a

police officer, after he was arrested, that he had "to face the

music now."

    Minds "of ordinary intelligence and sagacity," Commonwealth

v. Cooper, 264 Mass. at 373, could find this evidence

sufficiently forceful to establish beyond a reasonable doubt

that the defendant had killed the victim deliberately, upon a

reflective decision to do so; that the killing involved the

infliction of injuries brutal both in number and in severity;

and that it was carried out in the course of the felony of

aggravated rape.     The evidence was therefore sufficient to

support the verdict of guilty on all three theories of murder in

the first degree.

    3.   Third-party culprit evidence and Bowden evidence.       As

stated, the defendant sought to present evidence suggesting, in

his view, that the victim might have been killed by third

parties, and that the police had conducted an inadequate

investigation.     The focal point of this evidence was a set of

police reports found in the files of a Boston police detective,

Frank Mulvey, who had been involved in the original

investigation.   Mulvey had died by the time of trial.

    The most detailed police report in Mulvey's file (first

report) related the following account, provided in its entirety
                                                                   10


by the victim's mother, speaking through an interpreter.      In

October, 1984, police searched the apartment of one of the

victim's friends, a woman named Yvonne.    Drugs and cash that

belonged to the victim's former boy friend, who was known as

Chulo,7 were hidden in an adjacent apartment, and police did not

find them.   The victim and Yvonne falsely told Chulo that the

drugs and the cash had been confiscated.   Yvonne used the money

to buy a car.   Chulo subsequently threatened the victim at

gunpoint, and she "told him the whole story."   Chulo set the car

bought by Yvonne on fire.   The first report also included

another, apparently unrelated piece of information provided by

the victim's mother:    the mother reportedly stated that the

victim had told her, shortly before her death, that she "had

been present in [the Jamaica Plain section of Boston] when [an

African-American] guy had been shot in the head."

     Two other police reports contained in Mulvey's file were

far less informative.   According to one (second report), a

police sergeant had received "information [that Yvonne] had some

Dominicans do [the victim] because she thought that she ratted

on a drug deal."   According to the other (third report), police

officers had relayed "info[rmation] they heard on [the] street"

     7
       To protect the privacy of the victim, we refer to Yvonne
by her first name and to Chulo by his nickname. See G. L.
c. 265, § 24C.
                                                                 11


that police should "look into" Chulo, who was "not carrying a

full load."8

     The judge did not permit the defendant to enter these

police reports in evidence, stating that "[t]here's no indicia

sufficient . . . for the court to determine [their]

reliability."   The judge also excluded certain questions that

defense counsel wished to ask witnesses about the reports.

Specifically, counsel was not permitted to ask Yvonne's sister

whether Yvonne had been involved with drugs; and in his cross-

examination of the police detective who had reopened the

investigation, Juan Torres, counsel was not permitted to discuss

the substance of the police reports.   In addition, the judge

denied the defendant's request for a jury instruction concerning

alleged inadequacies in the police investigation, although the

defendant was permitted to make arguments about this matter in

closing.9


     8
       Defense counsel also asserted at a hearing that police had
been told that another acquaintance of the victim had called the
victim's workplace on the day after she died, before her body
had been discovered, to say that the victim would not arrive at
work that day. The evidence supporting this assertion was not
included in the defendant's proffer of third-party culprit
evidence or Bowden evidence. See Commonwealth v. Bowden, 379
Mass. 472 (1980).
     9
       The defendant preserved an objection to the judge's
decision to refrain from giving an instruction about the alleged
inadequacy of the police investigation. He does not press this
objection on appeal, and "[t]here was no error because the
                                                                     12


    The defendant argues that the police reports, as well as

testimony that might have been elicited by the excluded lines of

questioning, should have been admitted both as evidence of

third-party culprits and as evidence of an inadequate

investigation under Commonwealth v. Bowden, 379 Mass. 472

(1980).   Because the defendant preserved his objections to the

judge's rulings on these issues, we review for prejudicial

error.    See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

    a.    Third-party culprit evidence.   "A defendant may

introduce evidence that tends to show that another person

committed the crime or had the motive, intent, and opportunity

to commit it."   Commonwealth v. Silva-Santiago, 453 Mass. 782,

800 (2009) (Silva-Santiago), quoting Commonwealth v. Lawrence,

404 Mass. 378, 387 (1989).   We have "given wide latitude to the

admission of relevant evidence that a person other than the

defendant may have committed the crime charged.     'If the

evidence is "of substantial probative value, and will not tend

to prejudice or confuse, all doubt should be resolved in favor

of admissibility."'"    Id. at 800-801, quoting Commonwealth v.

Conkey, 443 Mass. 60, 66 (2004).    See Commonwealth v. Rosa, 422




giving of such an instruction is never required."     Commonwealth
v. Williams, 439 Mass. 678, 687 (2003).
                                                                   13


Mass. 18, 23 (1996), quoting Commonwealth v. Keizer, 377 Mass.

264, 267 (1979).

    We have imposed two types of restrictions on the admission

of third-party culprit evidence, recognizing that "feeble third-

party culprit evidence . . . inevitably diverts jurors'

attention away from the defendant on trial and onto the third

party, and essentially requires the Commonwealth to prove beyond

a reasonable doubt that the third-party culprit did not commit

the crime."   Silva-Santiago, supra at 801.   First, in order to

be admitted, third-party culprit evidence "must have a rational

tendency to prove the issue the defense raises, and [it] cannot

be too remote or speculative."   Id., quoting Commonwealth v.

Rosa, 422 Mass. at 22.   In addition, third-party culprit

evidence is often hearsay, namely out-of-court statements

"offered for the truth of the matter asserted --    that a third

party is the true culprit."   Silva-Santiago, supra at 801.     Such

evidence may be admitted "only if, in the judge's discretion,

'the evidence is otherwise relevant, will not tend to prejudice

or confuse the jury, and there are other "substantial connecting

links" to the crime.'"   Id., quoting Commonwealth v. Rice, 441

Mass. 291, 305 (2004).   See Mass. G. Evid. § 1105 (2014).

    The opportunity to present third-party culprit evidence is

of "constitutional dimension," Silva-Santiago, supra at 804

n.26, because it is rooted in the right of criminal defendants
                                                                   14


to "a meaningful opportunity to present a complete defense."

Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting California

v. Trombetta, 467 U.S. 479, 485 (1984).   See art. 12 of the

Massachusetts Declaration of Rights.   Accordingly, we examine a

judge's decision to exclude third-party culprit evidence

"independently," Silva-Santiago, supra at 804 n.26, under "a

standard higher than that of abuse of discretion," Commonwealth

v. Conkey, 443 Mass. at 67 n.14.

    Examining the exclusion of the proffered third-party

culprit evidence independently, we are satisfied that there was

no error.   To begin with, even had it not been hearsay, the

evidence offered by the defendant was "remote" and

"speculative."   Silva-Santiago, supra at 801.   In other words,

for the following reasons, this evidence was limited in both

reliability and relevance.

    The second report and the third report were patently

unreliable.   The information in these reports was vague; the

second report relayed unspecified "information" that Yvonne "had

some Dominicans do" the victim, and all that the third report

suggested was that police "should look into" Chulo, who was "not

carrying a full load."   In addition, the basis for the vague

information in these reports was unclear:   the second report was

written as a result of a telephone call from a police sergeant

who said he "ha[d] information," without specifying the source
                                                                    15


of it; and the information in the third report was "heard on

[the] street."

     The first report, which originated from an interview with

the victim's mother, was more detailed.     However, the basis of

the mother's information was specified only as far as the

statement that the victim had witnessed an unidentified African-

American man being shot in Jamaica Plain; the mother reportedly

had heard of this incident from the victim herself.    The first

report did not explain how the mother had learned that the

victim and Yvonne had stolen drugs from Chulo, that Chulo had

subsequently threatened the victim with a gun, or that he had

burnt Yvonne's car.

     Moreover, the judge permitted the defendant to conduct a

voir dire of the mother during trial.10    The mother testified at

voir dire that she did not remember "anything" about speaking to

police after her daughter's death, and that she did not remember

her daughter telling her about stealing drugs from Chulo, being

threatened at gunpoint, or seeing an African-American man shot

in Jamaica Plain.     Instead of illuminating the first report, the

voir dire of the mother thus rendered that report even more

enigmatic.




     10
          The victim's mother did not testify before the jury.
                                                                    16


    The first report also was not probative of the crux of a

third-party culprit defense, namely "that another person

committed the crime or had the motive, intent, and opportunity

to commit it."   Silva-Santiago, supra at 800, quoting

Commonwealth v. Lawrence, 404 Mass. at 387.    The report implied

that Yvonne, Chulo, or both might have believed that the victim

had wronged them.    It would be a stretch to say that such

beliefs amounted to a "motive" for murder, particularly since

the first report did not reveal when exactly Chulo was said to

have threatened the victim or to have burnt Yvonne's car.      In

any event, the first report provides no indication that either

Yvonne or Chulo had an intent or an opportunity to kill the

victim, or that they did, in fact, commit the crime.     Id.

"Evidence of a third party's ill will or possible motive is

insufficient alone to support a defense under the third-party

culprit doctrine."    Commonwealth v. Wright, 469 Mass. 447, 466

(2014), citing Commonwealth v. Mandeville, 386 Mass. 393, 398

(1982).   See Commonwealth v. Wood, 469 Mass. 266, 275-276

(2014); Commonwealth v. Bizanowicz, 459 Mass. 400, 418-419

(2011).

    Thus, it would have been permissible for the judge to

conclude that the evidence proffered by the defendant was "too

remote or speculative" to be admitted, even if it had not been
                                                                   17


hearsay.   See Silva-Santiago, supra at 801, quoting Commonwealth

v. Rosa, 422 Mass. at 22.

    Moreover, as hearsay, both the police reports and the

questioning about them were admissible as third-party culprit

evidence "only if, in the judge's discretion, 'the evidence is

otherwise relevant, will not tend to prejudice or confuse the

jury, and there are other "substantial connecting links" to the

crime.'"   Id., quoting Commonwealth v. Rice, 441 Mass. at 305.

For reasons similar to those previously discussed, the evidence

offered in this case did not satisfy these requirements.

    The defendant identified no "connecting links" between

Yvonne or Chulo and the crime itself, in terms of actual intent

to harm the victim, geographical or chronological proximity to

the crime scene, or the like.   Even the first police report, the

most informative of the three, suggested only a speculative and

uncorroborated potential motive for the murder.   The evidence

proffered by the defendant also did not satisfy the requirement

of "not tend[ing] to prejudice or confuse the jury."   Silva-

Santiago, supra at 801.   The defendant wished to share with the

jury police officers' notes about vague information from unclear

sources.   This evidence would have invited the jury to mistake

the memorialization of uncorroborated leads for known facts

about events preceding the murder.   Cf. Commonwealth v.

Mandeville, 386 Mass. at 398-399 (statement suggesting that
                                                                    18


victim's estranged husband suspected third party would have

tended to mislead jury because it had no tendency to prove that

third party actually was murderer).     It would have tended, like

all third-party culprit evidence, to "divert[] jurors' attention

away from the defendant on trial and onto the third party."

Silva-Santiago, supra.   No less problematically, it would have

posed a risk of drawing the jury into an evaluation, irrelevant

under the circumstances, of the victim's lifestyle and

character.   See Commonwealth v. Benjamin, 430 Mass. 673, 678

(2000) (generally, "evidence of a victim's character is not

admissible in a criminal case").     We conclude, therefore, that

the judge's exclusion of the evidence proffered by the defendant

as third-party culprit evidence was not error.

    b.   Bowden evidence.   Evidence also may be admissible to

show "[t]he failure of the authorities to conduct certain tests

or produce certain evidence," because "[t]he fact that certain

tests were not conducted or certain police procedures not

followed could raise a reasonable doubt as to the defendant's

guilt in the minds of the jurors."    Commonwealth v. Bowden, 379

Mass. at 485-486 (citations omitted).    "[F]ailure of the police

to investigate leads concerning another suspect is sufficient

grounds for a Bowden defense."     Silva-Santiago, supra at 802,

citing Commonwealth v. Phinney, 446 Mass. 155, 166 (2006).      See

Mass. G. Evid. § 1107 (2014).
                                                                    19


    Bowden evidence generally is "offered not to show the truth

of the matter asserted, but simply to show that the information

was provided to the police."   Silva-Santiago, supra at 802.      See

Commonwealth v. Reynolds, 429 Mass. 388, 391 (1999).     Such

evidence, therefore, is not subject to the limitations

applicable to hearsay third-party culprit evidence.    In order

for Bowden evidence to be admitted, however, the judge must

"conduct a voir dire hearing to determine whether the third-

party culprit information had been furnished to the police, and

whether the probative weight of the Bowden evidence exceeded the

risk of unfair prejudice to the Commonwealth from diverting the

jury's attention to collateral matters."   Silva-Santiago, supra

at 803.   Cf. Commonwealth v. Pytou Heang, 458 Mass. 827, 851-852

(2011) (relevant evidence in general should be excluded if its

"probative value [is] substantially outweighed by the danger of

unfair prejudice or the risk of misleading the jury"); Mass. G.

Evid. § 403 (2014).   The exclusion of proffered Bowden evidence

is reviewed under an abuse of discretion standard.     See Silva-

Santiago, supra at 804; Commonwealth v. Mayfield, 398 Mass. 615,

629 (1986).

    The same police reports offered by the defendant as third-

party culprit evidence, and the same attendant lines of

questioning, were also offered as Bowden evidence.     Because this

evidence came from police records, it was not necessary for the
                                                                   20


judge to conduct a voir dire hearing to determine whether the

information had been furnished to the police.    Silva-Santiago,

supra at 803.   The judge excluded the proffered Bowden evidence

after considering the arguments of counsel; such evidence was

only to be admitted if its probative weight "exceeded the risk

of unfair prejudice to the Commonwealth from diverting the

jury's attention to collateral matters."   Id.   For the reasons

we discuss, we discern no abuse of discretion in its exclusion.

    First, the evidence proffered was of limited probative

value.   The police reports from Mulvey's file pointed to

investigative leads that police had received in the course of

the original investigation, twenty-five years earlier.       The file

did not detail the manner in which police had investigated these

leads.   Mulvey, who had died, could not describe the course that

the original investigation had run.   The defendant also did not

offer any additional evidence on this matter.    Thus, the

evidence proffered was relevant primarily in that it would have

enabled the jury to surmise that police had failed, in early

1985, "to investigate leads concerning another suspect," Silva-

Santiago, supra at 802, given that Mulvey's file memorialized

the leads but not any follow-up to them.   This inference, while

perhaps permissible, would have represented weak support for a

Bowden defense.
                                                                   21


     The excluded evidence also could have shed light on the

adequacy of the police's reexamination of the original leads

after the investigation was revived.   This matter was, however,

probed with some vigor in the defendant's cross-examination of

Torres, the detective who reopened the investigation.   As

mentioned, the judge ruled that the substance of the reports

found in Mulvey's file could not be revealed; but he permitted

defense counsel to note in his questioning that certain named

individuals, including Yvonne and Chulo, were identified in the

file, and to ask Torres whether these individuals had been

investigated further in the course of the reopened

investigation.   The Commonwealth's redirect examination revealed

that police had spoken to Yvonne after reopening the case, had

arranged for her to testify before the grand jury, and had

learned that Chulo had been deported by the time the

investigation had been reopened.11   The excluded evidence would

thus have made only a limited contribution to a Bowden defense

focused on the more recent police investigation; while this

evidence could have informed the jury's assessment of the




     11
       Detective Juan Torres also testified that the
acquaintance of the victim who had reportedly called her
workplace on the day after she was killed had died by the time
of the renewed investigation.
                                                                   22


police's renewed efforts, those efforts were themselves revealed

at trial.

     Moreover, as discussed, the information in the police

reports was largely from unidentified origins, and much of it

was vague.   Consequently, even if the jury were to believe that

police had failed to pursue certain avenues of investigation

effectively, either initially or after reopening the case, this

failure would only weakly have suggested that a third party had

committed the crime.   In other words, it was unlikely that the

shortfalls of the investigation suggested by the proffered

evidence "could raise a reasonable doubt as to the defendant's

guilt in the minds of the jurors."   See Commonwealth v. Bowden,

379 Mass. at 486.12

     On the other side of the scale, the defendant's Bowden

evidence posed a risk, as discussed earlier, of confusing the

jury, and of diverting its attention to collateral questions,

primarily conjecture concerning the nature of the original

investigation.   It would also have opened the door to

speculation, immaterial here, about the victim's lifestyle and

character.


     12
       In addition, the voir dire of the victim's mother
suggested that it would have been difficult for police to
collect additional information about the events detailed in the
first police report.
                                                                   23


    Also relevant to our analysis is the fact that the judge

did allow the defendant to pursue a number of lines of

questioning and argument in support of a Bowden defense.     See

Commonwealth v. Bizanowicz, 459 Mass. at 417, citing

Commonwealth v. Ridge, 455 Mass. 307, 316 (2009).     As noted,

defense counsel was permitted to ask Torres whether police had

revisited various investigative avenues, including avenues based

on Mulvey's file.   He was also allowed to argue, in closing,

that the collection and retention of evidence from the crime

scene had been careless, and that hairs collected at the crime

scene, as well as the sock tied around the victim's neck, could

have been tested for DNA but were not.

    In the circumstances, while the judge might well have

admitted more of the proffered Bowden evidence, we discern no

abuse of discretion in his decision otherwise.

    c.   Constitutional claim.   As noted, the opportunity to

present third-party culprit evidence "is of constitutional

dimension."   Silva-Santiago, supra at 804 n.26.    This

constitutional dimension stems from the right, guaranteed by the

United States Constitution, to "a meaningful opportunity to

present a complete defense."   Crane v. Kentucky, 476 U.S. at

690, quoting California v. Trombetta, 467 U.S. at 485.

Similarly, but more broadly, art. 12 of the Massachusetts

Declaration of Rights provides that "every subject shall have a
                                                                      24


right to produce all proofs, that may be favourable to him."

The defendant argues that if the Massachusetts doctrine

concerning third-party culprit evidence permitted the judge to

exclude the evidence proffered in this case, then that doctrine

is consequently unconstitutional.   This argument is unavailing.

       The United States Supreme Court has held that the right to

present a defense is "abridged by evidence rules that

'infring[e] upon a weighty interest of the accused' and are

'arbitrary' or 'disproportionate to the purposes they are

designed to serve.'"    Holmes v. South Carolina, 547 U.S. 319,

324-325 (2006), quoting United States v. Scheffer, 523 U.S. 303,

308 (1998) (alteration in original).    Our jurisprudence

concerning the circumstances in which third-party culprit

evidence may be excluded is consistent with these strictures.

See Commonwealth v. Smith, 461 Mass. 438, 446-447 (2012);

Commonwealth v. Ruell, 459 Mass. 126, 131-133 (2011).       We have

permitted the exclusion of such evidence in view of concerns

with limited probative value, unfair prejudice, confusion of the

issues, and misleading the jury.    See Silva-Santiago, supra at

801.   The Court in Holmes v. South Carolina, 547 U.S. at 326,

recognized that these considerations are not "arbitrary,"

stating that "well-established rules of evidence permit trial

judges to exclude evidence if its probative value is outweighed

by certain other factors such as unfair prejudice, confusion of
                                                                   25


the issues, or potential to mislead the jury."     More

specifically, the Court quoted a "widely accepted" rule that,

while the "accused may introduce any legal evidence tending to

prove that another person may have committed the crime with

which the defendant is charged," such evidence "may be excluded

where it does not sufficiently connect the other person to the

crime, as, for example, where the evidence is speculative or

remote."   Id. at 327, quoting 40A Am. Jur. 2d, Homicide § 286,

at 136–138 (1999).

    The standards we have described here and in prior cases are

thus not "arbitrary."    They also are not "disproportionate to

the purposes they are designed to serve," Holmes v. South

Carolina, 547 U.S. at 324-325, quoting United States v.

Scheffer, 532 U.S. at 308, particularly given our insistence

that all doubts concerning evidence "of substantial probative

value" that "will not tend to prejudice or confuse . . . should

be resolved in favor of admissibility," see Silva-Santiago,

supra at 801, quoting Commonwealth v. Conkey, 443 Mass. at 66.

There was no error.

    4.     Prosecutor's closing argument.   The defendant argues

that certain statements in the prosecutor's closing argument

were improper.   He focuses on the fact that, after successfully

requesting that the judge exclude the defendant's proffered

third-party culprit evidence, the prosecutor pointed out that no
                                                                  26


evidence of that type had been presented.   Because the defendant

did not object to the prosecutor's argument, we review for a

substantial likelihood of a miscarriage of justice.

    We have held that:

    "Counsel may not, in closing, 'exploit[] the absence of
    evidence that had been excluded at his request.' Such
    exploitation of absent, excluded evidence is 'fundamentally
    unfair' and 'reprehensible.' '[A] party's success in
    excluding evidence from the consideration of the jury does
    not later give that party license to invite
    inferences . . . regarding the excluded evidence.'"

Commonwealth v. Harris, 443 Mass. 714, 732 (2005), quoting

Commonwealth v. Carroll, 439 Mass. 547, 555 (2003), Commonwealth

v. Haraldstad, 16 Mass. App. Ct. 565, 568 (1983), and

Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 9 (1980)

(alterations in original).   Here, a number of the prosecutor's

remarks invited precisely such a prohibited inference, and

should not have been made.   The prosecutor argued:

         "There's nothing about [the victim's] life that would
    give anybody who knew her a motive to kill her. It is a
    rape/murder by a stranger.

         "You know from her life she's a regular [eighteen]
    year old living a regular [eighteen] year old's life. She
    was not making risky choices. She does not have risky
    friends. She is not engaging in risky behavior. . . .

         "So when she walked that night . . . , she was walking
    as an innocent young woman. A woman without enemies. A
    woman without people who would have a motive to kill her.
    A woman who had done nothing herself to cause this."

    These comments, and especially the prosecutor's statements

that the victim "was not making risky choices" and was "not
                                                                  27


engaging in risky behavior," would not have seemed plausible had

the defendant's proffered third-party culprit and Bowden

evidence been admitted.   In this sense, the prosecutor's

argument "exploit[ed] the absence of evidence that had been

excluded at his request."    See Commonwealth v. Harris, supra,

quoting Commonwealth v. Carroll, supra.

    We conclude, however, that there is no substantial

likelihood that a miscarriage of justice occurred.    In

Commonwealth v. Harris, supra, we stated:

    "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."

Consideration of these factors, and particularly the degree to

which the error was "central to the issues at trial" and the

strength of the Commonwealth's case, leads us to conclude that

reversal is not required.    First, the prosecutor's remarks

concerning the victim's lack of "risky behavior" were not a key

element of his closing argument.   Unlike the prosecutor in

Commonwealth v. Haraldstad, 16 Mass. App. Ct. at 568, the

prosecutor here did not extensively "mine[] th[e] vein" created

by the excluded testimony.   His argument focused on the evidence

that the defendant's sperm was found in the victim's body and on
                                                                     28


her clothing; that the pattern of the sperm indicated, according

to the Commonwealth's expert, that it had been deposited

approximately when and where the victim had died; and that,

according to the individuals closest to the victim, she had

never been with older men or with men who did not speak Spanish.

The prosecutor also devoted much of his argument to countering

the defendant's efforts to minimize the prosecution's case, and

to recounting the brutality of the murder.

     In addition, the jury heard some evidence that tended to

support the prosecutor's characterization of the victim's past.

The victim's sister testified that the victim did not go out

often, at least with her; and a friend of the victim testified

that the victim "seemed to take care of herself.    She used to

dress like any young girl, you know, and she used to be clean.

She used to keep to herself, I think."

     In the circumstances, the prosecutor's misguided remarks

did not undermine the fundamental fairness of the trial.     "[W]e

are substantially confident that, if the error had not been

made, the jury verdict would have been the same."    Commonwealth

v. Ruddock, 428 Mass. 288, 292 n.3 (1998).   We leave that

verdict undisturbed.13



     13
       In his reply brief, the defendant suggests that the
prosecutor's closing argument mocked the defendant's name and
                                                                  29


    5.   Instructions to the alternate juror.   The defendant

argues that the judge erred in his instructions to the

reconstituted jury, after an original deliberating juror had

been discharged, concerning the question posed by the original

jury and the judge's answer to it.   The defendant argues that

the judge's instruction undercut his directive that the

reconstituted jury must begin its deliberations anew.     Although

the defendant did not object to the instruction at trial, he now

contends that it amounted to a structural error that requires

reversal without a showing of prejudice.   See Commonwealth v.

Smith, 403 Mass. 489, 493 (1988).

    "If a judge determines that the substitution of an

alternate juror is appropriate, then the judge . . . must

instruct the jury to disregard all prior deliberations and begin

its deliberations again."   Commonwealth v. Haywood, 377 Mass.

755, 770 (1979).   See Commonwealth v. Carnes, 457 Mass. 812, 829

(2010); Commonwealth v. Smith, 403 Mass. at 492.    The judge

provided such instructions in this case, stating:

         "[O]nce we have a new deliberating juror . . . you
    must start your deliberations all over again. I appreciate
    you have not been deliberating for long, but you must start
    anew because you now constitute a new jury of twelve
    deliberating jurors. And you must all start from the



appealed to racial prejudice.   We see no support for these
contentions in the record.
                                                                   30


    beginning so that everyone can hear and share and discuss
    this case anew. . . .

         "[L]et me repeat, ladies and gentlemen of the new
    deliberating jury, you are to start your deliberations
    anew, afresh, start over again."14

These emphatic instructions were not undermined by the judge's

discussion of the question that had been asked by the original

jury and answered on the previous day.     The judge said:

         "[T]here was a note that was given to me by the
    deliberating jury with a question. I answered that
    question. The note and the question are with the jury and
    should be shared with our new juror as well so he is up to
    speed on communications that our deliberating jury has had
    with the court."

    Contrary to the defendant's characterizations of these

statements, the judge did not instruct the jury to broach any

previous discussions with the new juror.    Rather, he directed

that the jury's written question, and presumably the judge's

written response, be "shared" with the new juror.     This

directive was proper.   The judge's written answer to the jury's

question was, in essence, an addendum to the instructions that


    14
       In addition, before determining which jurors would serve
as alternates, the judge stated: "If during the course of the
jury's deliberations a deliberating [juror] for good and
sufficient reason is excused by the court, then . . . one of the
alternates will be drawn at random to replace that deliberating
juror and the jury[,] which will now constitute [a] new group of
[twelve] individuals[,] will be instructed to begin its
deliberations all over again in order that the new juror be a
full participant and listen to and be able to speak about the
evidence in this case."
                                                                   31


the judge had given in the presence of all the jurors, before

the alternates were selected and before the jury began to

deliberate.    It was appropriate that the new juror be provided

with this additional instruction, just as it would have been

appropriate for the alternate jurors to be present had the judge

answered the jury's question in open court rather than by means

of a note.    No reasonable jurors would have read into the

judge's instruction permission to share prior deliberations with

the new juror, or to continue the original jury's deliberations

instead of beginning anew.15

     6.   Review pursuant to G. L. c. 278, §§ 33E. We have

reviewed the entire record and conclude that there is no basis

to exercise our authority pursuant to G. L. c. 278, § 33E, to

reduce the verdict of murder in the first degree or to order a

new trial.

                                     Judgment affirmed.




     15
       Because there was no error, we do not reach the question
whether failure to comply with Commonwealth v. Haywood, 377
Mass. 755 (1979), could, in some circumstances, represent
structural error.
