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SJC-11479

            COMMONWEALTH   vs.   ANTONIO MARCOS FERREIRA.



       Middlesex.       November 9, 2018. - March 18, 2019.

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


Homicide. Evidence, Exculpatory, Admission by silence,
     Consciousness of guilt, Testimony at prior proceeding.
     Deoxyribonucleic Acid. Search and Seizure, Probable cause,
     Exigent circumstances, Warrant, Affidavit. Probable Cause.
     Constitutional Law, Search and seizure, Probable cause,
     Admissions and confessions. Practice, Criminal, Capital
     case, Motion to suppress, New trial, Admissions and
     confessions.



     Indictments found and returned in the Superior Court
Department on November 19, 2009.

     A pretrial motion to suppress evidence was heard by Bruce
R. Henry, J.; the case was tried before Elizabeth M. Fahey, J.,
and a motion for a new trial, filed on May 15, 2017, was
considered by her.


     James E. Methe for the defendant.
     Hallie White Speight, Assistant District Attorney, for the
Commonwealth.


    GAZIANO, J.     In the early morning of October 2, 2009, the

victim, Sheila dos Santos, was stabbed to death near the back
                                                                   2

entrance to her apartment building.     A Superior Court jury

convicted the defendant, her former boyfriend, of murder in the

first degree on the theories of deliberate premeditation and

extreme atrocity or cruelty.

    In this consolidated appeal from his conviction and from

the denial of his motion for a new trial on the ground of

undisclosed exculpatory evidence, the defendant challenges the

denial of the motion for a new trial.    He argues also that the

evidence was insufficient to support the verdict, that it was an

abuse of discretion to have denied his motion to suppress

evidence that was seized without a warrant, and that a number of

the judge's evidentiary rulings were erroneous.    In addition,

the defendant seeks relief pursuant to G. L. c. 278, § 33E.

    We affirm the defendant's conviction of murder in the first

degree, and, having reviewed the entire record pursuant to our

statutory duty under G. L. c. 278, 33E, we decline to order a

new trial or reduce the verdict.

    1.   Background.   Because the defendant challenges the

sufficiency of the evidence, we recite the facts in the light

most favorable to the Commonwealth, reserving some details for

later discussion.   See Commonwealth v. Bolling, 462 Mass. 440,

442 (2012).

    The victim lived on the fourth floor of an apartment

building on Main Street in Everett.     She, along with her
                                                                     3


sisters, Rose Angela Carla dos Santos and Ana Paula Carla dos

Santos, worked as dancers at a strip club in Chelsea, and later

in Stoughton.1    She met the defendant at the Chelsea club at some

point in 2006.    The defendant became friends with the victim and

her sisters, and eventually started dating the victim.     That

relationship ended approximately six months prior to the

victim's death.    Despite the break up, the defendant continued

to socialize with the victim and her sister, Ana.    The three of

them went out together to nightclubs and other gatherings

attended by members of the Brazilian community, and the three

frequently spoke on the telephone.

     In April 2009, the victim entered into a relationship with

a married man named Oliver.2    On September 26, 2009, a week

before the victim's death, the defendant and Oliver were at the

Stoughton club where the victim and her sisters worked.       The

victim paid attention to Oliver in between dances, and the

defendant did not stay long.    The next day, the defendant

visited Ana at her house.    He sat down on the floor, and was "a

little sad" and "quiet"; he expressed dismay over the victim's

decision to date a married man.




     1 Because they share the same last name, we refer to the
victim's sisters by their first names.

     2   A pseudonym.
                                                                     4


    On September 30, 2009, the defendant and one of his

roommates, Darles DeSouza, attended a barbeque at Ana's house to

celebrate her birthday.    The defendant got "a bit agitated" when

the victim did not show up.   He asked Ana to contact the victim

to get her to join them.   When Ana told the defendant that the

victim was on a date and might stop by later, the defendant

commented that he had suspected that she was out with someone.

As the night progressed, the defendant called the victim to see

what time she would arrive; he held his cellular telephone in

his hand and appeared to be waiting for her.    After the

defendant and DeSouza returned to their Somerville apartment,

the defendant remained outside in his silver Nissan Murano and

attempted to telephone the victim.

    In the early morning hours of October 1, 2009, the

defendant telephoned Ana and told her that he could no longer be

friends with her "because he wasn't a good person."   The

defendant explained that he had been using drugs and that his

life for the past six months had had no meaning.    He asked Ana

to give her sister (the victim) a message that "[s]he was

dealing with a person who has no life."   Ana attempted to

console the defendant; she told him to think about his family

and children, and that she would help him find another

girlfriend.   The defendant responded that he only was interested

in the victim.
                                                                      5


    Later that morning, the defendant sent Ana a text message

that he was feeling better.     He also would "not do anything

wrong."     Before Ana left for her evening shift at the club, she

and the defendant spoke by telephone.     The defendant said that

he had not wanted to go to work that day because he "wasn't in

the mood."     He asked Ana, "Is your sister going to work today?"

Ana replied, "I don't know.     I think so."

    At that time, the defendant lived on Melvin Street in

Somerville with DeSouza and another roommate, Washington

Silveira.    The defendant slept on a spare mattress in DeSouza's

bedroom, and stored some of his belongings in the closet.        In

the evening of October 1, 2009, DeSouza came home from work, ate

dinner with the defendant, and began watching a movie in the

living room.    The defendant went into the bedroom before the

movie ended.     After the movie, DeSouza went into his bedroom,

and noticed that the defendant was lying on his mattress wearing

a jacket and pants.     This was slightly unusual, but not entirely

out of the ordinary; the defendant sometimes would be in bed,

dressed, when he planned to go out later that night.     DeSouza

fell asleep.    When he woke up the next morning, at 6 A.M., the

defendant was talking to someone on his cellular telephone.

    The victim worked at the Stoughton club in the evening of

October 1-2, 2009, and drove home in her 2006 Honda CR-V shortly

after the club closed at 1 A.M.     At 1:11 A.M, during her drive
                                                                    6


home, the victim called her sister Ana; she sounded "normal."

At 1:12 A.M, a vehicle that appeared to be consistent with the

defendant's Nissan Murano was captured by a surveillance video

camera located on the corner of Melvin Street and Broadway in

Somerville.   The video recording showed this vehicle pull out of

a parking space on Melvin Street, near the defendant's apartment

building.

     At 1:38 A.M., a vehicle resembling the defendant's Nissan

Murano drove around a traffic circle in Everett and headed in

the direction of the victim's apartment building.   A few minutes

later, at 1:42 A.M., a Honda CR-V drove around the traffic

circle, heading in the same direction.   At 1:44 A.M.,

surveillance footage from a camera facing Tileston Street in

Everett captured an image of a similar vehicle driving near the

victim's apartment building.   Back on Melvin Street in

Somerville, at 1:53 A.M., a vehicle that appeared similar to the

defendant's Nissan Murano pulled up and parallel parked in the

same space from which a vehicle like a Nissan Murano had pulled

out fifty-one minutes earlier.   A man got out of the vehicle and

walked in the direction of the defendant's apartment building.3

     Shortly before 2 A.M., one of the victim's neighbors, who

lived on the second floor of the building, was awakened by a


     3 The distance between the victim's apartment building and
the defendant's apartment building is approximately three miles.
                                                                     7


woman's screams coming from the parking lot behind the apartment

building.     He got up, heard another scream, looked outside, and

did not see anything.     Approximately thirty to forty seconds

after the second scream, the neighbor saw someone walk down the

last few steps of the rear staircase, and jog through the

parking lot and around a Dumpster.     The neighbor described the

individual as a man in his twenties or thirties, wearing a tan

or brown jacket and jeans.     The neighbor went back to bed

sometime around 2 A.M.

    At 1:43 A.M., a woman who lived on Laurel Street, in an

apartment that faced the rear of the victim's building on Main

Street, also was also awakened by a woman's screams.    She heard

the woman yell, "Get off me, get off me, get away from me," but

did not see anything amiss when she looked outside.     Believing

that the screams were connected to one of the many parties that

her neighbors hosted, the woman went back to bed without calling

the police.

    At 4:30 A.M., a resident of the victim's building went

outside to empty his trash and found the victim lying face down

in a pool of blood on the landing outside the back door.       She

had been stabbed or cut thirty-one times; she had seventeen stab

wounds in the torso, and multiple knife wounds in both arms.

The victim's handbag, cellular telephone, and keys were next to
                                                                       8


her body.    The wallet contained her credit cards and a few

hundred dollars in cash.    This neighbor telephoned 911.

    Police investigators spoke to members of the victim's

family.    Ana told the officers, "I have a suspect for you."     The

police then attempted to locate the defendant.    A detective was

able to reach the defendant on his cellular telephone.      The

defendant agreed to meet investigators at the Everett police

station at 2 P.M.; he did not appear at the police station at

that time.   Eventually, the defendant informed police that he

was at the Malden District Court paying traffic fines.      Three

Everett police officers drove to the Malden District Court and

met the defendant there.    He agreed to accompany the officers to

the Everett police station.    When they arrived at the station,

one of the officers noticed injuries on the back of the

defendant's hands.    An officer contacted a forensic scientist,

Eric Koester, who worked at the State police crime laboratory

(crime lab), and asked him to come to the police station to test

for possible nonvisible blood.    Koester swabbed both of the

defendant's hands, and the defendant then left the police

station.

    A crime lab analyst examined deoxyribonucleic acid (DNA)

extracted from the swabs collected by Koester and determined

that the victim was included as a possible contributor to a DNA

mixture on the back of both of the defendant's hands.       The swab
                                                                     9


from the right hand was a mixture of at least three people.      The

defendant matched the major profile, and the victim was included

as a potential contributor to the minor profile.     The swab from

the left hand contained a mixture of DNA from at least two

people; the defendant's DNA matched the major profile, and the

victim was included as a potential contributor to the minor

profile.

     On October 2, 2009, police executed search warrants for the

defendant's apartment and his two vehicles (the Nissan Murano

and a GMC pickup truck).   Police seized a pair of bloodstained

sneakers from a bedroom closet.     Later testing showed that DNA

from a bloodstain on the top of the toe of the left sneaker

matched the victim's DNA profile.    Another bloodstain on the

side of the right sneaker, not visible to the naked eye,

contained a mixture of DNA; the major profile from that sample

matched the victim's DNA profile.4

     Police also collected scrapings from underneath the

victim's fingernails.   The scrapings from her left hand tested




     4 The search of the GMC truck and the Nissan Murano revealed
no inculpatory evidence. Forensic chemists conducted screening
tests of the exterior and interior of the vehicles for the
presence of blood, in locations where one might expect to find
transferred blood, e.g., on the steering wheel, control knobs,
door handles, gear shift, and seats. All areas tested negative
for the presence of blood.
                                                                   10


positive for male "Y-STR" DNA,5 and contained a mixture of DNA

from at least four men.    The defendant (and his paternal

relatives) were included as possible contributors to the major

profile.   Oliver (and his paternal relatives) were included as a

potential source of the minor profile in this DNA mixture.      The

crime lab obtained both STR and Y-STR DNA results from the

victim's right fingernail scrapings.    With respect to the STR

profile, the defendant was included as a possible contributor,

and Oliver was excluded.    The Y-STR DNA testing produced a

mixture of at least three male profiles.     The defendant (and his

paternal relatives) were included as possible contributors to

the major profile; and Oliver (and his paternal relatives) were

included as possible contributors to the minor profile.6

     2.    Discussion.   In this direct appeal, the defendant

presents four claims, and asks this court to grant him relief

under G. L. c. 278, § 33E, and order a new trial or direct the

entry of a verdict of a lesser degree of guilt.    The defendant

contends that the trial judge abused her discretion in denying

his motion for a new trial based in large part upon evidence




     5 "Y-STR" refers to the Y-chromosome short tandem repeat
method of testing DNA. See, e.g., Commonwealth v. Dirico, 480
Mass. 491, 494 (2018).

     6 Oliver testified that he visited the victim's apartment at
approximately 5 P.M. on October 1, 2009, and that they were
intimate.
                                                                   11


that forensic scientist Eric Koester had failed required

proficiency tests.   The defendant also challenges the

sufficiency of the evidence that he killed the victim.     In

addition, he argues that the police conducted an illegal

warrantless search by swabbing his hands to detect the presence

of nonvisible blood, and that a subsequent warrant authorizing a

search of his apartment was not supported by probable cause.

The defendant argues further that the trial judge abused her

discretion in making certain evidentiary rulings, including

allowing the introduction in evidence of an adoptive admission.

Finally, the defendant asks this court to exercise its

authority, pursuant to G. L. c. 278, § 33E, and order a new

trial or direct the entry of a lesser degree of guilt.

    a.   Motion for new trial.   Following his conviction of

murder in the first degree in March 2012, the defendant's appeal

was entered in this court in June 2013.   In February 2015, the

Commonwealth provided the defendant with postconviction

discovery.   The discovery included a September 2014 memorandum

from the crime lab reporting that Koester repeatedly had failed

proficiency tests in bloodstain pattern analysis and the

recovery of trace evidence.   The Commonwealth also provided the

defendant with a "corrected" DNA STR and Y-STR report that

showed a significant reduction in the probabilities of the
                                                                  12


combined STR and Y-STR results appearing randomly in the

population.7

     After receiving the information concerning Koester's failed

proficiency tests, the defendant filed a motion for a new trial

in this court, on the ground that the Commonwealth had failed to

provide exculpatory evidence.   In the alternative, the defendant

argued that the information constituted newly discovered

evidence that "casts real doubt on the justice of the

conviction" and "probably would have been a real factor in the

jury's deliberations."   See Commonwealth v. Lykus, 451 Mass.

310, 326 (2008).   In addition, the defendant maintained that

errors in the DNA probability calculations, combined with other

issues concerning the forensic testing, warranted a new trial.8




     7 The corrected report did not combine the probability of
the Y-STR and STR results, as the original report incorrectly
had done.

     8 The defendant moved, pursuant to Mass. R. Crim. P.
17 (a) (2), 378 Mass. 885 (1979) and Mass. R. Crim. P.
30 (c) (4), as appearing in 435 Mass. 1501 (2001), for
additional documents relative to Koester's employment and job
performance. The trial judge denied the motion. She found that
the defendant had not established that the "discovery is
reasonably likely to uncover evidence that might warrant
granting a new trial," primarily due to Koester's "very limited
role in this case." Given the nature of Koester's involvement,
we discern no abuse of discretion in the judge's decision. See
Commonwealth v. Daniels, 445 Mass. 392, 407 (2005) (defendant is
required to demonstrate discovery reasonable likely to uncover
evidence that might warrant granting new trial).
                                                                    13


The appeal was stayed in this court and the motion for a new

trial was remanded to the Superior Court.

    The trial judge denied the motion without a hearing.      She

found that the issues raised by Koester's failed proficiency

tests did not negate the "overwhelming" evidence that the

defendant had killed the victim.    As to the corrected statistics

involving the probability of DNA matches, the judge noted that

the new calculations did not eliminate the defendant as a

possible contributor to the DNA found underneath the victim's

right hand fingernails.   The judge concluded, "This court

remains fully satisfied that the allegedly absent evidence would

not have played any role in the jury's deliberations and

conclusions, given the overwhelming evidence of the defendant's

guilt."

    Pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435

Mass. 1501 (2001), a judge "may grant a new trial at any time if

it appears that justice may not have been done."    In reviewing

the denial of a motion for new trial, we "examine the motion

judge's conclusions only to determine whether there has been a

significant error of law or other abuses of discretion."

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).    In conducting

this review, we afford particular deference to factual

determinations made by a motion judge who was also the trial

judge.    Commonwealth v. Forte, 469 Mass. 469, 488 (2014).
                                                                   14


    In addition, we review the consolidated appeal of the

defendant's conviction and the denial of his motion for a new

trial under G. L. c. 278, § 33E.   Commonwealth v. Moore, 480

Mass. 799, 805 (2018), citing Commonwealth v. Alicia, 464 Mass.

837, 840 (2013).   Thus, we examine the denial of a motion for a

new trial to determine whether there was error, and, if so,

whether the error created a substantial likelihood of a

miscarriage of justice.   Commonwealth v. Vargas, 475 Mass. 338,

355 (2016).

    i.   Proficiency tests.    Turning first to the evidence

concerning Koester's failed proficiency tests, the parties

dispute whether this evidence was known to the Commonwealth

before the March 2012 trial.   The defendant relies on an

affidavit submitted by his DNA expert, and maintains that "an

accredited forensic laboratory" would have known before trial

that Koester had failed the proficiency tests.     According to the

expert, laboratories typically evaluate tests before the results

are finalized and reported to the forensic scientist.     He opined

that "the information regarding the failed . . .    proficiency

tests was available to the [State] laboratory by the beginning

of 2012, well before the March 2012 trial."    Thus, the defendant

argues, he is entitled to a new trial because the Commonwealth

failed to provide exculpatory evidence in its possession prior

to the time of trial.
                                                                  15


     The Commonwealth contends that the information concerning

Koester's test results was not in its possession or control at

the time of trial, because the information did not come into

existence until after the defendant's trial.   The Commonwealth

argues accordingly that, at most, the information regarding

Koester should be considered newly discovered evidence.    See

Commonwealth v. Clemente, 452 Mass. 295, 312 (2008), cert.

denied, 555 U.S. 1181 (2009) ("obligation to disclose

exculpatory information is limited to that in the possession of

the prosecutor or police" [citation omitted]).   Although Koester

was required to complete the tests in 2010 and 2011, the

Commonwealth argues, the tests were not graded until May 2012, a

few months after the trial from March 15 through March 30, 2012.

     In "March of 2012, [however, Koester] became the subject of

an ongoing corrective action by Lab Management, due to

deficiencies identified during the annual proficiency testing

program."9   That the State police took "corrective action"

against Koester in March of 2012 appears to indicate that the

Commonwealth, through the State police, was aware of his

deficient performance at least before the end of the defendant's

trial.   Regardless of whether the prosecutor was aware of the




     9 Koester also was the subject of a separate "contamination
event" in October 2012. Koester resigned from his position at
the crime lab at the beginning of April 2014.
                                                                  16


test results at any point during the trial, the defendant is

unable to establish a reasonable possibility that the evidence

would have made a difference in the jury's verdict.    See

Commonwealth v. Sullivan, 478 Mass. 369, 382 (2017).

    "To obtain a new trial on the basis of nondisclosed

exculpatory evidence, a defendant must establish (1) that the

evidence was in the possession, custody, or control of the

prosecutor or a person subject to the prosecutor's control;

(2) that the evidence is exculpatory; and (3) prejudice"

(quotations, citation and alteration omitted).    Id. at 380.

Where a defendant files a specific request for exculpatory

evidence, "the defendant must demonstrate . . . the existence of

a substantial basis for claiming prejudice," Commonwealth v.

Imbert, 479 Mass. 575, 582 (2018), quoting Commonwealth v.

Watkins, 473 Mass. 222, 231 (2015).    A defendant "can meet

[this] burden 'with record support for the conclusion that the

jury would have been influenced by timely disclosure of the

evidence in question,'" Imbert, supra, quoting Commonwealth v.

Bly, 448 Mass. 473, 486 (2007), e.g., that "there is a

reasonable possibility that the nondisclosed evidence would have

made a difference."   Imbert, supra, quoting Commonwealth v.

Laguer, 448 Mass. 585, 594 (2007).    "Where, on the other hand, a

defendant's pretrial motion was merely a general request for

exculpatory evidence, the defendant must show that the withheld
                                                                   17


evidence 'would probably have been a real factor in the jury's

deliberations'" (citation omitted).   Watkins, supra.

    Here, the defendant concedes that he made a general request

for exculpatory evidence, and did not make a specific request.

Accordingly, we consider whether there was prejudice from the

nondisclosure of exculpatory evidence under the standard used to

assess the impact of newly discovered evidence, Commonwealth v.

Murray, 461 Mass. 10, 21 (2011), and evaluate "whether there is

a substantial risk that the jury would have reached a different

conclusion if the evidence had been admitted at trial,"

Commonwealth v. Tucceri, 412 Mass. 401, 413 (1992).

    Given Koester's limited role in this case, we conclude that

there was no abuse of discretion in the trial judge's decision

that the defendant was not entitled to relief.   The judge's

finding that Koester played a relatively minor role in the

criminal investigation against the defendant is supported by the

trial record.   Koester responded to the crime scene, marked the

location of evidence, and performed a bloodstain pattern

analysis that was not central to the case.   Later that day,

Koester swabbed the defendant's hands at the police station.

The swabs were submitted to another scientist for DNA testing.

Although Koester officially supervised the two criminalists who

searched the defendant's apartment, Koester was not present when

they recovered the defendant's sneakers, and he did not test the
                                                                     18


sneakers for the presence of blood or DNA.    Cf. Commonwealth v.

Hernandez, 481 Mass. 189, 197 (2018) (no prejudice warranting

new trial where Koester was present as supervisor but played

limited role in investigation); Commonwealth v. Sullivan, 478

Mass. at 383 ("actual DNA testing, in which Koester had no

direct role, likely did the most damage").

    ii.   Calculation of DNA statistics.    We turn to the

defendant's contention that he is entitled to a new trial

because the crime lab has revised the method it uses to

calculate the probability of random matches in cases involving

both STR and Y-STR results.

    At trial, the DNA analyst testified that the STR profile

obtained from the fingernail clippings of the victim's right

hand was a mixture of at least two individuals, and that the

victim's DNA matched the major profile.    The defendant was

included as a potential contributor to the minor profile.      The

analyst testified further that the Y-STR results revealed DNA

from at least three males.    The defendant's DNA (and that of his

paternal relatives) matched the major profile of the Y-STR

profile, and Oliver's DNA (and that of his paternal relatives)

matched the minor profile.    The analyst then explained that she

had calculated the probabilities of the STR and Y-STR profiles

found on the victim's right fingernails by "tak[ing] the

statistic for the STR results . . . multiplied by the statistic
                                                                  19


for the Y-STR results. . . ."   Based on this method, the analyst

testified, the probability of a randomly selected unrelated

individual having the same STR and Y-STR profile was one in

326,900 of the Caucasian population, one in 423,000 of the

African-American population, and one in 118,900 of the Hispanic

population.

    After trial, the crime lab issued a "Corrected DNA STR/Y-

STR Report" that eliminated the original "combined STR and Y-STR

frequency data (i.e. combined statistic)" from the report.

According to the revised calculation, the probability of a

randomly selected individual having contributed to the STR DNA

mixture found on the fingernail cuttings from the victim's right

hand was one in 307 of the Caucasian population, one in 452 of

the African-American population, and one in 212 of the Hispanic

population.   The Y-STR DNA from the same sample matched the

defendant (and his paternal relatives) with a ratio of one in

1,065 for the Caucasian population, one in 936 for the African-

American population, and one in 561 for the Hispanic population.

    We agree with the defendant's DNA expert that the

difference between the original and corrected match

probabilities is "statistically significant."   In the

circumstances of this case, however, the revised probability

calculations do not cast doubt on the justice of the conviction.

The newly reported STR and Y-STR statistics were less damaging,
                                                                  20


but not exculpatory.   Contrast Commonwealth v. Cameron, 473

Mass. 100, 104-110 (2015) (newly discovered DNA evidence

bolstered argument that DNA test results presented at trial were

erroneous); Commonwealth v. Cowels, 470 Mass. 607, 620 (2015)

(outcome of trial might have been different because new DNA

testing contradicted evidence that Commonwealth used to

corroborate key witness).   Moreover, the value of the revised

statistics must be considered in light of the other DNA evidence

introduced at trial connecting the defendant to the crime.     This

evidence includes a blood stain found on the defendant's left

sneaker which matched the victim's DNA profile, with

probabilities of one in 14.96 quintillion of the Caucasian

population, one in 3.26 septillion of the African-American

population, and one in 9.443 quintillion of the Hispanic

population.

    b.   Sufficiency of the evidence.   The defendant contends

that there was insufficient evidence to support the murder

conviction.   He argues that the evidence, at best, established

that he had had a prior relationship with the victim.     According

to the defendant, in denying his motion for a directed verdict,

the judge failed to take into account several pieces of

exculpatory evidence including that the defendant's roommates

did not hear him leave the apartment the night of the stabbing;

the police searched his apartment and vehicles and did not
                                                                   21


recover the murder weapon; he and the victim had ended their

relationship amicably; and others had a motive to kill the

victim, such as Oliver or an unknown strip club patron.

    We rely on the familiar Latimore standard in determining

whether the Commonwealth met its burden to establish each

element of the offense charged beyond a reasonable doubt.    See

Latimore, 378 Mass. 671, 677-678 (1979).    "[The] question is

whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

Id. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979).   Although a conviction may be based entirely on

circumstantial evidence, and the inferences drawn need only be

reasonable, not inescapable, a "conviction may not rest on the

piling of inference upon inference or on conjecture and

speculation."   Commonwealth v. Lao, 443 Mass. 770, 779 (2005),

citing Commonwealth v. Swafford, 441 Mass. 329, 339–343 (2004).

    Here, as the judge discussed in denying the defendant's

motion for a new trial, the evidence against the defendant was

"overwhelming."   There was no error in the denial of his motion

for a directed verdict.

    c.    Motion to suppress.   The defendant sought to suppress

the DNA evidence from the swabbing of his hands, on the ground

that the Everett police lacked probable cause and the defendant
                                                                   22


did not consent to the taking of swabs from his hands at the

police station, and that there was no probable cause to support

the issuance of a warrant to search his apartment.    After a two-

day evidentiary hearing, a Superior Court judge denied the

defendant's motion to suppress.   The judge found that the

warrantless search of the defendant's hands was supported both

by probable cause to believe that the defendant's hands

contained evidence of a crime and exigent circumstances.     The

judge found also that the search warrant affidavit established

probable cause to search the defendant's apartment.

    i.   Search of defendant's hands.    "In reviewing a ruling on

a motion to suppress evidence, we accept the judge's subsidiary

findings of fact absent clear error and leave to the judge the

responsibility of determining the weight and credibility to be

given oral testimony presented at the motion hearing."

Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).    "We review

independently the application of constitutional principles to

the facts found."   Id.   See Commonwealth v. Cassino, 474 Mass.

85, 88 (2016).

    At the hearing, evidence was introduced that, on October 2,

2009, Everett police responded to a 911 call and found the

victim dead of apparent stab wounds, outside the rear entrance

to her apartment building.   The victim's neighbor indicated

that, at approximately 2 A.M. that morning, he had heard a
                                                                  23


scream from the rear of the building.   He saw a white or

Hispanic male, wearing a light brown jacket and jeans, "trot"

away from the building, across the parking lot, in the direction

of Laurel Street.   A Laurel Street resident heard a scream

around 1:45 A.M., and another neighbor reported that a motion

detector had activated at approximately the same time.

    A few hours after the discovery of the victim's body, her

sister, Ana, identified the defendant as a suspect in the

victim's death.   Ana told police that "Sheila [and the

defendant] had dated . . . a while ago" and had stopped dating,

but that the defendant was trying to get back together with

Sheila.   Ana reported that "the defendant had been stalking

[Shelia] or constantly calling [Sheila]."   On September 30,

2009, while she was at a barbeque, Ana overheard the defendant

yelling and arguing with the victim on his cellular telephone.

At 1 A.M. on October 1, 2009, the defendant had called Ana and

told her that he wanted to reestablish a romantic relationship

with the victim, that he was desperate, and that the victim did

not know who she was dealing with because he had nothing in his

life.

    On the morning of October 2, 2009, investigators spoke with

Alcenir Alvarenga, the victim's closest friend.   Alvarenga told

the officers she had visited the victim on October 1, 2009.

During that visit, the victim said that the defendant had
                                                                   24


telephoned her and said that if he could not be with the victim,

no one would, and that he would kill her and himself.    Alvarenga

showed the investigators the defendant's house, pointed out the

defendant's pickup truck, and told them that the defendant drove

a silver Nissan Murano.

    Investigators examined traffic surveillance video footage

and noted that, at approximately 1:42 A.M. on October 2, 2009, a

Honda CR-V resembling the victim's vehicle entered Sweeter

Circle and exited on Main Street.   A silver Nissan Murano

entered the same traffic circle about four to five minutes

before what appeared to be the victim's vehicle, and also exited

onto Main Street.   Surveillance video footage from a commercial

building showed a silver Nissan Murano on Tileston Street, near

the victim's house, leaving the area at 1:44 A.M.

    Shortly before 1 P.M. on October 2, 2009, a detective

contacted the defendant and asked to speak with him.    The

defendant agreed to meet the detective at the Everett police

station within an hour, but did not show up for the meeting.     At

2:25 P.M., the same detective contacted the defendant and

learned that he had gone to the Malden District Court to pay

some traffic fines, and that he planned to stop by the Everett

police station after he completed his errand at the court house.

Three police officers went to the court house to meet the

defendant.   The defendant confirmed that he owned a silver
                                                                     25


Nissan Murano.   He agreed to accompany the officers to the

police station in their vehicle.     He was not handcuffed, placed

under arrest, or questioned during the ride.

    The defendant and the officers arrived at the police

station at 3:30 P.M.   An officer took the defendant to an

interview room, where the officer advised the defendant of the

Miranda rights and provided him a waiver form.    The defendant

asserted his right to counsel, and questioning ended.

    During this process, one of the officers noticed some cuts

on the defendant's hands.   The investigators photographed the

cuts and requested a State police chemist come to the station to

test the defendant's hands for the presence of blood.      Koester

arrived at 4:30 P.M.   He conducted a screening test for the

presence of nonvisible blood.   The backs of both of the

defendant's hands tested positive.    Koester then collected swabs

from the backs of each of the defendant's hands.     The defendant

was not provided an opportunity to refuse these tests.     After

the testing, at approximately 5:20 P.M., the defendant left the

interview room and waited in the police station lobby for a ride

home.

    The motion judge found, based on "the information

accumulated to that point," that there was probable cause to

believe that the defendant "had been involved" in the killing,

and that there might be trace evidence on his hands.     That
                                                                  26


evidence "could easily have been lost if the defendant were

allowed to leave the station and clean up his hands."     The judge

concluded, "The actions of the investigators were warranted by

the existence of probable cause and by the exigency of the

situation in which evidence could be lost if not collected

then."10

     "When a search is conducted without a warrant, the burden

is on the Commonwealth to show that the search falls within a

narrow class of permissible exceptions to the warrant

requirement (citation omitted)."   Commonwealth v. Abdallah, 475

Mass. 47, 51-52 (2016).   One such exception to the warrant

requirement is a search based on probable cause and exigent

circumstances that make obtaining a warrant impracticable.

Commonwealth v. White, 475 Mass. 583, 588 (2016), quoting

Commonwealth v. Washington, 449 Mass. 476, 480 (2007).     "A

reasonable belief as to the potential loss or destruction of

evidence may create exigent circumstances permitting the

warrantless . . . seizure of that evidence" (citation omitted).

Commonwealth v. Parker, 481 Mass. 69, 73 (2018).

     We agree with the motion judge's determination that the

Commonwealth established probable cause to swab the defendant's




     10At 11 P.M., the investigators obtained warrants
authorizing the search of the defendant's apartment and
vehicles.
                                                                   27


hands, and that it was necessary to do so to prevent to loss or

destruction of that evidence.   The officers knew that the victim

had dated the defendant and that the defendant was trying to get

back together with her.   The victim's sister reported that the

defendant had been stalking or constantly calling the victim.

According to one of the victim's friends, the day before the

stabbing, the victim told her that the defendant had threatened

to kill the victim.   The victim was stabbed in Everett at

approximately 1:45 A.M. on October 2, 2009.   A short time

earlier, a vehicle resembling the defendant's silver Nissan

Murano entered a traffic circle in Everett and drove off in the

direction of the victim's apartment.   At 1:42 A.M., the victim's

vehicle had driven through the same traffic circle.

    As discussed, later on October 2, police spoke with the

defendant and noticed cuts on the back of his hands.   The

defendant was wearing a tan jacket and matched the general

description provided by the victim's upstairs neighbor, who had

been awoken by a woman screaming and, when he looked out the

window, saw a Caucasian or Hispanic male wearing a light brown

jacket and walking away from the building.

    In addition, there was no abuse of discretion in the motion

judge's determination, based on uncontroverted evidence, that

nonvisible blood might have been lost if the defendant were

allowed to leave the police station and wash his hands.      See
                                                                      28


Washington, 449 Mass. at 483-485; Commonwealth v. Hinds, 437

Mass. 54, 62 (2002), cert. denied, 537 U.S. 1205 (2003).

    ii.     Search of the defendant's apartment.   The defendant

argues that evidence seized from his apartment should have been

suppressed because there was insufficient evidence to have

issued the search warrant.    The motion judge found that the

warrant affidavit established "a substantial basis to believe

that there was a nexus between the murder of [the victim], the

defendant, his vehicles, and his apartment."

    The defendant challenges the reliability of information

contained in the warrant affidavit that was attributed to the

victim's sister, Ana, and the victim's friend, Alvarenga.       The

officer who prepared the warrant affidavit, Trooper Jeffrey A.

Saunders, stated that the police had learned, through interviews

with the victim's family and friends, that the defendant "had

been threatening to kill [the victim] if she did not have sex

with him as recently as Thursday, October 1, 2009."    Ana told

investigators about a conversation that she had had with the

defendant, during which the defendant said that "he was shooting

drugs because he was desperate to get back together with [the

victim]."   The defendant also told Ana that "her sister 'did not

know who she is dealing with.'"   On October 1, 2009, the victim

told Alvarenga that the defendant had called her during the day
                                                                  29


and told the victim that he would kill himself or her if she

would not sleep with him.

    The defendant argues that these statements were "primarily"

or "entirely" based on hearsay, and that the information did not

satisfy the two-pronged Aguilar-Spinelli test concerning an

informant's basis of knowledge and veracity.   See Spinelli v.

United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S.

108 (1964).   Where the source of information is an identified

witness to a crime, the informant generally is considered more

creditable.   See Commonwealth v. Gouse, 461 Mass. 787, 793

(2012); Commonwealth v. Freiberg, 405 Mass. 282, 297-298, cert.

denied, 493 U.S. 940 (1989); Commonwealth v. Burt, 393 Mass.

703, 710 (1985).    In addition, independent police corroboration

may serve to bolster the reliability of information contained in

an affidavit.   See Commonwealth v. Robinson, 403 Mass. 163, 166

(1988).

    Here, the basis of knowledge prong was satisfied because

the victim's sister informed police of an admission made by the

defendant.    See Commonwealth v. Crawford, 410 Mass. 75, 78-79

(1991), S.C., 417 Mass. 40 (1994) (defendant's admission

satisfies basis of knowledge); Commonwealth v. Peterson, 61

Mass. App. Ct. 632, 635 (2004) (basis of knowledge inferred

through witness's relationship with defendant).   Moreover, it

was clear that the victim was the source of the information
                                                                     30


provided by Alvarenga, as she said the victim had called her.

Ultimately, the motion judge deemed the information was reliable

because it was provided by an identified witnesses to a crime.

See Commonwealth v. Beliard, 443 Mass. 79, 85 (2004);

Commonwealth v. Alvarez, 422 Mass. 198, 204 (1996).      In

addition, other evidence mentioned in the warrant affidavit,

including video surveillance showing a silver Murano driving

near the victim's apartment building during the relevant time

frame, and the cuts on the defendant's hands, corroborated the

statements.    We discern no error in the judge's determination

that there was probable cause to issue the search warrant for

the defendant's house and vehicles.

    d.     Adoptive admissions.   The Commonwealth moved in limine

to admit certain statements by the defendant as adoptive

admissions or as consciousness of guilt.     The defendant opposed

the motion.    After a hearing, the judge allowed the testimony to

be introduced, with a limiting instruction, as an adoptive

admission.

    At trial, over the defendant's objection, Ana testified

that, when she learned of the victim's death from her sister

Rose, she called the defendant and asked him, "Where is my

sister?"     The defendant answered, "I don't know.   I haven't seen

her for a week."     Ana then accused the defendant of killing her

sister, saying, "You killed my sister.    You can run.   I'm gonna
                                                                   31


kill you.   I'm gonna kill your family.   I'm gonna kill your

children.   I'm gonna kill everyone."   The defendant hung up.

    Immediately after this testimony was introduced, the judge

gave a limiting instruction and told the jury that they must "be

sure that any conclusions you draw are fair conclusions," and

that they also must be sure that the defendant "heard any

accusation and understood its significance."    She further

instructed that the jury must be "satisfied that it is a fair

conclusion that a person would always speak up in a situation

like that if he were innocent.    After all, no one is required to

respond to any negative comment made about him, and there may be

other factors in a given situation apart from guilt or innocence

with respect to the particular accusation that might explain why

a person did not choose to respond."

    To prove that a statement was an adoptive admission on the

basis that a defendant remained silent in the face of an

accusation, the Commonwealth must establish that (1) the

defendant heard and understood the statement; (2) the defendant

had an opportunity to respond; and (3) the context was one in

which an individual would have been expected to respond to an

accusation of criminal conduct.    See Commonwealth v. Shea, 460

Mass. 163, 170 (2011), quoting Commonwealth v. Braley, 449 Mass.

316 321 (2007).   See also Mass. G. Evid. § 801(d)(2)(B) (2018).

"Evidence of this nature is to be received with caution,
                                                                     32


especially in criminal cases, due to the fact that the meaning

of a defendant's response, or lack thereof, to an accusatory

statement is often ambiguous."     Commonwealth v. McKenzie, 413

Mass. 498, 506 (1992).     See Commonwealth v. Rembiszewski, 363

Mass. 311, 316 (1973) (expressing court's "general wariness of

adoptive admissions").

    In these circumstances, where Ana had called the defendant

and was expressly threatening to hunt him down, and kill him and

his family, the judge's decision to allow the introduction of

these statements as an adoptive admission was an abuse of

discretion.    See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).     We cannot say that it would be reasonable to believe

that someone receiving such a threatening telephone call

ordinarily would respond by denying having killed anyone.

Hanging up the telephone and refusing to deal further with an

irate and threatening caller would appear to be a natural

response, and, in any event, cannot be seen as an admission of

guilt.    See McKenzie, 413 Mass. at 506.

    Although the evidence should not have been admitted, there

was no prejudice to the defendant from its admission requiring

reversal.     See Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994).     Other testimony already had been introduced indicating

that Ana accused the defendant of killing her sister; indeed,

that testimony was introduced by the defendant himself in his
                                                                    33


challenge to the manner in which the police purportedly rushed

to judgment during the investigation.    The jury most likely gave

the testimony little weight given that Ana's threats did not

reasonably call for a response.   In addition, as previously

stated, the case against the defendant was overwhelming.

    e.   Grand jury testimony.    The defendant contends that the

judge erred by allowing the Commonwealth to introduce a portion

of a testifying witness's testimony to the grand jury as a

"prior recorded statement."   The Commonwealth argues that there

was "some confusion as to the basis on which the testimony was

offered," and that the testimony was admissible for substantive

purposes due to a feigned loss of memory.    Because the defendant

objected, we review to determine whether there was prejudicial

error.   See Commonwealth v. Martinez, 431 Mass. 168, 173 (2000).

We conclude that the Commonwealth did not establish a sufficient

foundation for the admission of this testimony, but that

introduction of the testimony was not reversible error.

    The disputed testimony unfolded as follows.     The prosecutor

asked the defendant's roommate, Washington Silveira, "What did

the defendant tell you about [the victim] and his relationship

with her?"   Silveira answered, "At first he would say that the

relationship was good . . . ."    The prosecutor then asked if the

relationship had changed at any point.   Silveira responded he

"could not remember the exact words" the defendant used to
                                                                     34


describe his changed relationship with the victim.   When the

prosecutor attempted to refresh Silveira's recollection with his

grand jury testimony, Silveira testified, "At the moment I don't

remember anymore.   But if I said that at that time, that's what

happened."

    The prosecutor then sought to introduce, as "prior recorded

testimony," a portion of Silveira's grand jury testimony.      See

Mass. G. Evid. § 804(b)(1) (2018) (hearsay exception where

declarant unavailable).   In making this argument, however, the

prosecutor cited Commonwealth v. Daye, 393 Mass. 55, 72-75

(1984), and Commonwealth v. Berrio, 407 Mass. 37, 45 (1990),

which permit the introduction of prior inconsistent statements

by a witness that were made under oath before the grand jury,

where the statements were not coerced, and were more than a mere

confirmation or denial of the interrogator's question.    See

Mass. G. Evid. § 801(d)(1)(A) (2018).   Defense counsel objected

to the introduction of the statement as "past recollection

recorded."   See Mass. G. Evid. § 803(5) (2018).   The judge

allowed the prosecutor to introduce the testimony as prior

recorded testimony.   The prosecutor then read to the jury the

following excerpt of Silveira's grand jury testimony:

    "Q.: Did [the defendant] ever talk to you about [the
    victim]?

    "A.: He told me once that he had to forget that low life,
    that he had to forget that low life women.
                                                                    35



    "Q.: Did he refer to her as a low life women, or did he
    specifically use the word whore?

    "A.:   Yes, he did specifically used the word whore.

    "Q.: And do you remember when this was in relation to when
    [the victim] was killed?

    "A.: It was a long time ago. I don't recall exactly.
    Maybe two or three months before.

    "Q.: So that would have been sometime in July or August of
    2009?

    "A.:   It could be."

    We consider first whether, as the Commonwealth suggests,

the judge properly allowed the grand jury testimony to be

introduced based on a purported feigned loss of memory.     Under

our jurisprudence, when a witness, who is on the witness stand

and therefore subject to cross-examination, feigns memory loss,

the witness's grand jury testimony may be admitted as

substantive evidence.   See Commonwealth v. DePina, 476 Mass.

614, 621 (2017), citing Commonwealth v. Maldonado, 466 Mass.

742, 754-755, cert. denied, 572 U.S. 1125 (2014).   In order to

allow the introduction of grand jury testimony as substantive

evidence, "[a] judge must find, first, that the witness is in

fact feigning his or her lack of memory; second, that the grand

jury testimony was not coerced; and third, that the grand jury

testimony was in the witness's own words, involving more than
                                                                   36


mere confirmations or denials of statements made by the

interrogator."   DePina, supra.

    Here, the Commonwealth did not ask the judge to allow the

introduction of Silveira's grand jury testimony based on a

feigned loss of memory, and the judge made no express findings

that such a foundation had been established.   Based upon the

judge's reference to the testimony as a prior recorded

statement, and our review of the trial transcript, we do not

agree with the Commonwealth's contention that the judge made

implicit findings that supported the admission of the testimony.

See DePina, 476 Mass. at 621-622.   Thus, the grand jury

testimony should not have been admitted.

    Nonetheless, Silveira's testimony that the defendant

referred to the victim as a "low life" and "whore" a few months

before she was killed likely had little impact on the jury.

Flebotte, 417 Mass. at 353.   The prosecutor did not refer to

these statements in her closing argument.    The significance of

the derogatory comments is outweighed by the threats made by the

defendant himself in the days immediately prior to the stabbing,

on September 30 and October 1, 2009, as well as the

circumstantial evidence connecting the defendant to the killing.

A new trial is not required on this basis.

    6.   Relief under G. L. c. 278, § 33E.   We have carefully

reviewed the entire record, pursuant to G. L. c. 278, § 33E, and
                                                                 37


discern no reason to order a new trial or to reduce the degree

of guilt.

                                   Judgment affirmed.
