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SJC-10726

                 COMMONWEALTH   vs.   CARLOS A. SEINO.



            Norfolk.    November 10, 2017. - May 8, 2018.

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


Homicide. Constitutional Law, Confrontation of witnesses,
     Assistance of counsel. Deoxyribonucleic Acid. Witness,
     Expert. Evidence, Expert opinion, Death certificate, Chalk
     drawing, Exculpatory. Practice, Criminal, Capital case,
     Confrontation of witnesses, New trial, Assistance of
     counsel.



     Indictments found and returned in the Superior Court
Department on September 19, 2006.

    The cases were tried before Paul A. Chernoff, J.


     Brian J. Kelly for the defendant.
     Pamela Alford, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.     On the morning of August 3, 2002, the body of

Daniel DeCosta was discovered on a walkway behind the public

library in downtown Quincy.     The defendant, Carlos A. Seino, was

indicted and ultimately convicted by a jury of murder in the
                                                                     2


first degree on a theory of felony-murder and armed robbery in

connection with DeCosta's death.     On appeal, the defendant

claims that the trial judge committed reversible error by

allowing the jury to be exposed to certain inadmissible hearsay

and by allowing one of the substitute expert witnesses to

testify to a match between the defendant's deoxyribonucleic acid

(DNA) profile and one obtained from the victim's clothing.      In

addition he seeks a new trial, claiming that his trial counsel

was ineffective and that government officials committed

misconduct in the course of investigating and prosecuting him.

After full consideration of the trial record and the defendant's

arguments, we affirm the defendant's convictions and decline to

grant extraordinary relief pursuant to G. L. c. 278, § 33E.

    Background.   We summarize the facts the jury could have

found, reserving certain details for discussion of specific

issues.

    In the spring of 2002, the defendant moved into an

apartment with two roommates in Quincy.    However, by August of

that year, the defendant was "weeks and weeks late" on the rent.

On August 2, the defendant's roommate warned the defendant that

he would be asked to move out if he did not pay the total amount

that he owed by the following day.    The defendant paid a portion

of the amount due to his roommate that evening before going out.
                                                                     3


     In the meantime, the victim spent several hours that night

at a local Quincy bar, where he cashed two checks for a total of

$6031 and put the money in his jeans pocket.   At the bar, the

victim drank several beers, played Keno2 and darts, and

socialized.   He appeared to be drunk as he bought drinks for

patrons and "flaunt[ed]" his money such that one of his friends

urged him to "put [it] away."   He spent approximately eighty

dollars while at the bar that night.

     The defendant arrived at the bar at approximately midnight.

He saw some people he knew and observed the victim (whom he did

not know) staggering around with Keno tickets.   The defendant

stayed for between twenty and thirty minutes, leaving at

approximately 12:30 A.M.   The victim left the bar when it

closed, around 1 A.M., traveling by foot.

     At approximately 1:30 A.M., the defendant woke up his

roommate and gave him the remaining money owed in cash.      Later

that morning, the roommate observed the defendant in front of




     1 The bartender gave the victim one one hundred dollar bill,
two fifty dollar bills, twenty twenty dollar bills, and three
one dollar bills.

     2 Keno is a State lottery game in which a player wagers a
bet, selecting up to twelve numbers from a field of eighty. The
lottery randomly selects and displays on a monitor twenty
numbers, and the player wins prize money if one or more of the
player's numbers are displayed. 961 Code Mass. Regs. § 2.58
(1998).
                                                                    4


the television listening to the Quincy public access channel,

which was broadcasting the police scanner.

     The victim's lifeless body was discovered at approximately

7 A.M. on a walkway behind the Quincy public library with

contusions to his nose and the back of his head.   Although his

wallet was still on his person, most of the cash he had had was

missing.   Investigators took samples from the defendant's

clothing, including a snippet from the left front jeans pocket

and a snippet from the front of the victim's shirt, both of

which had bloodstains.   The DNA extracted from the jeans pocket

sample was a mixture that matched the DNA profiles of both the

victim and the defendant.   The DNA extracted from the bloodstain

on the victim's shirt matched the profile of the defendant

alone.

     The defendant, who testified at trial, offered weak alibi

evidence to demonstrate that he did not have the opportunity to

commit the crime.3   Further, he suggested the existence of a

third-party culprit and speculated that blood from a cut on his

hand ended up on the victim's clothing via incidental contact at

the bar.




     3 The defendant testified that he visited several bars in
succession after leaving the bar where the victim spent several
hours. However, even taking the defendant at his word, he could
have done all that he claimed and still committed the crime.
                                                                   5


     Discussion.     In his direct appeal, the defendant asserts

violations of his constitutional right to confront witnesses

with respect to testimony regarding portions of the victim's

autopsy report and death certificate, DNA charts used as chalks,

and evidence of matching DNA profiles offered through a

substitute expert witness.    Following oral argument, the

defendant filed a motion for a new trial with this court,

alleging ineffective assistance of counsel and Brady violations,

among other claims.    See G. L. c. 278, § 33E; Brady v. Maryland,

373 U.S. 83, 87 (1963).    We examine each of the defendant's

arguments in turn.

     1.   Autopsy and death certificate evidence.    During

testimony by Dr. Richard Evans regarding the cause of the

victim's death, the doctor, who did not perform the autopsy,

referred to certain statements in the autopsy report and the

death certificate -- documents that he did not author.       The

defendant argues that it was a violation his right to confront

witnesses to allow Evans to read in evidence what amounted to

testimonial hearsay statements without the defendant having the

ability to cross-examine the declarant, i.e., the medical

examiner who created the documents.4    We agree.   However, we

conclude that the error was harmless beyond a reasonable doubt.


     4 Hearsay is testimonial when a "reasonable person in [the
declarant's] position would anticipate [it] would be used
                                                                     6


     As a general matter, a substitute medical examiner

     "may offer an opinion on the cause of death, based on his
     review of an autopsy report by the medical examiner who
     performed the autopsy and his review of the autopsy
     photographs, as these are documents upon which experts are
     accustomed to rely, and which are potentially independently
     admissible through appropriate witnesses."

Commonwealth v. Reavis, 465 Mass. 875, 883 (2013).     Here, Evans

reviewed the case folder of the medical examiner who performed

the autopsy, which included the autopsy report, a toxicology

report, handwritten notes and diagrams, and photographs.5    Beyond

properly offering his opinion on the cause of death based on the

case file and his examination, however, Evans went further,

testifying as to statements contained in the autopsy report and

the death certificate, namely, the length of the lacerations on

the victim's head and the stated cause of death, respectively.

     The Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights guarantee a

criminal defendant's right to confront each of the government's

witnesses.   See Melendez-Diaz v. Massachusetts, 557 U.S. 305,

309 (2009); Commonwealth v. Sanchez, 476 Mass. 725, 732 (2017).

Thus, a judge at a criminal trial may not permit the

introduction of testimonial hearsay without the defendant having



against the accused in investigating and prosecuting a crime."
See Commonwealth v. McCowen, 458 Mass. 461, 480 (2010).
     5 As the chief medical examiner, Evans endorsed the autopsy

report at the time it was written. Moreover, he examined tissue
from the victim's brain and memorialized his findings.
                                                                   7


an opportunity to cross-examine the declarant.   See Melendez-

Diaz, supra at 309, 311.

    Although Evans permissibly relied on the medical examiner's

case folder to form his opinion as to the cause of the victim's

death, it was error for him to testify to statements contained

in that report and the death certificate, because the statements

were testimonial hearsay and the person who created the

documents was not available for cross-examination.   See

Commonwealth v. McCowen, 458 Mass. 461, 480, 483 (2010).     See

also Commonwealth v. Greineder, 464 Mass. 580, 592-593, cert.

denied, 571 U.S. 865 (2013); Commonwealth v. Avila, 454 Mass.

744, 763 (2009).

    Because the defendant objected to the statements contained

in the autopsy report and death certificate at the time of

trial, we review the constitutional error to determine whether

it was harmless beyond a reasonable doubt.   Commonwealth v.

Nardi, 452 Mass. 379, 394 (2008).

    Review under this standard requires us to consider, among

other factors:

    "[1] the importance of the evidence in the prosecution's
    case; [2] the relationship between the evidence and the
    premise of the defense; [3] who introduced the issue at
    trial; [4] the frequency of the reference; [5] whether the
    erroneously admitted evidence was merely cumulative of
    properly admitted evidence; [6] the availability or effect
    of curative instructions; and [7] the weight or quantum of
    evidence of guilt."
                                                                    8


Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).

    Here, the erroneously admitted statements from the death

certificate and the autopsy report were of little, if any,

consequence.   First, the improper testimony was cumulative of

Evans's properly admitted opinion as to the cause of death.

Evans opined as to the cause of death independently from what

was on the death certificate.   See Commonwealth v. Scesny, 472

Mass. 185, 198 (2015); Commonwealth v. Emeny, 463 Mass. 138,

145-146 (2012).   Further, the statements regarding the length of

the head lacerations had nothing to do with whether the

defendant was the assailant:    they did not tend to incriminate

the defendant, nor did they detract in any way from the

defense's argument that he was not the assailant.     Finally,

given the DNA evidence, discussed in more detail infra, together

with the evidence of motive and opportunity, and taking

everything into consideration, we conclude that the errors did

not contribute to the guilty verdicts.   See Commonwealth v.

Sinnott, 399 Mass. 863, 872 (1987).

    2.   DNA evidence.   At trial, the Commonwealth presented DNA

evidence through three expert witnesses who gave opinions

implicating the defendant in the killing.   The defendant

challenges aspects of the testimony of all three.

    a.   Analysis of the evidence.    Red-brown stains found on

the front left pocket of the victim's jeans and on the front of
                                                                    9


the victim's shirt were determined to be bloodstains.   A snippet

of each item was prepared for DNA analysis, and the resulting

profiles were compared to the defendant's DNA profile when it

was obtained in 2006.6

     The DNA profile from the bloodstain on the jeans pocket was

developed at a Cellmark Diagnostics (Cellmark) laboratory in

Maryland (Cellmark-Maryland).7   That laboratory's former

director, Dr. Robin Cotton, testified that the DNA found on the

jeans was a mixture of two profiles, that the victim was one

potential contributor to the DNA sample, and that the second

contributor was a man.8   When the defendant's DNA became

available, an analyst from a Cellmark laboratory in Texas

(Cellmark-Texas), Matthew DuPont, compared the profile from the

jeans sample to the defendant's DNA profile and opined that the




     6 In 2006, the defendant pleaded guilty to a machete attack
and was required to submit a sample of his deoxyribonucleic acid
(DNA) for the Combined DNA Index System database.

     7 The State police crime laboratory has a contract with
Cellmark Diagnostics (Cellmark), a private DNA-testing
laboratory, under which Cellmark provides forensic DNA-testing
services. Cellmark has several locations across the United
States and contracts with a number of law enforcement agencies
throughout the country. The DNA evidence in this case was
processed and analyzed at the State police crime laboratory as
well as in two different Cellmark laboratories.

     8 Cotton determined the second contributor was a man by
subtracting the victim's profile and noting that the remaining
DNA contained a Y-chromosome.
                                                                  10


defendant was the second contributor.9   DuPont also testified to

the statistical probability of such a match:   one in 17.34

quadrillion of the African-American population, one in 1.854

quintillion of the Caucasian population, one in 1.753

quintillion of the Southwest Hispanic population, and one in

2.475 quintillion of the Southeast Hispanic population.

     The sample from the victim's shirt was processed by the

State police crime laboratory.   A representative from that

laboratory, Laura Bryant, testified that the defendant's DNA

profile matched the profile from the bloodstain on the victim's

shirt.   Bryant also testified to the probability of a random

match of the profiles of the DNA sampled from the victim's shirt

and the defendant's DNA, concluding that the likelihood of a

random, unrelated person having a DNA profile that matched the

sample was about one in 1.79 quintillion of the Caucasian

population, one in 16.74 quintillion of the African-American

population, and one in 2.375 quintillion for the Hispanic

population.




     9 Although Laura Bryant, an analyst from the State police
crime laboratory, testified that the results from the pocket of
the victim's jeans were inconclusive as to whether it matched
the defendant's DNA profile when she performed the analysis, the
two laboratories used different tests on the same material.
DuPont tested for two additional genetic locations using an
amplification tool different from that used in Bryant's
laboratory.
                                                                   11


    b.   Confrontation issues.   The defendant asserts that the

Commonwealth violated his right to confront witnesses when

Cotton and Bryant presented charts and when DuPont testified as

to a comparison between the defendant's DNA profile and the

profile developed from the bloodstain on the victim's jeans.      We

find no reversible error.

    i.   Contested chalks.   At trial, Cotton and Bryant, neither

of whom conducted the DNA analysis, opined as to their own

conclusions regarding the DNA testing on the samples taken from

the victim's jeans and shirt respectively.   The defendant

concedes that the opinion testimony of these two expert

witnesses based on the work of others in their laboratories was

admissible.   See, e.g., McCowen, 458 Mass. at 483; Commonwealth

v. Barbosa, 457 Mass. 773, 786 (2010), cert. denied, 563 U.S.

990 (2011).   However, the defendant claims error in the experts'

use of charts that contained test results obtained by other,

nontestifying analysts.

    Both Cotton and Bryant used charts as chalks to explain

their conclusions to the jury.   The charts contained data

generated by other analysts and showed the raw data generated by

the DNA tests:   numbers or letters assigned to genetic locations
                                                                    12


and "spikes" from an electropherogram.10   Cotton used two DNA

charts, one for the jeans sample and one for the victim's

profile.   Referring to the charts, Cotton showed the jury where

the genetic locations from the jeans sample matched the genetic

locations from the victim's profile.    In addition, Cotton used

data from an electropherogram to demonstrate to the jury how she

had concluded that a second man had contributed DNA to the jeans

sample.    For her part, Bryant guided the jury through each step

of the comparison, pointing out on the chart generated from the

shirt bloodstain the numbers that matched those on the chart

generated from the defendant's DNA.    In less detail, she also

described to the jury the results of several comparisons,

referring each time to tables from the report.

     Similar to our conclusion with respect to the testimony of

Evans discussed supra, it was improper for the Commonwealth to

show the data the experts relied upon to the jury during direct

examination without giving the defendant an opportunity to

cross-examine those who obtained the results.    McCowen, 458

Mass. at 483.   Because the defendant did not preserve an

objection to the use of the charts, we review the error for a




     10An electropherogram is a plot of results created when an
analyst conducts an electrophoresis test. The plot resembles
waves or peaks and allows analysts to visualize results.
                                                                      13


substantial likelihood of a miscarriage of justice.11      See

Commonwealth v. Carmona, 428 Mass. 268, 271 (1998).       Under the

substantial likelihood of a miscarriage of justice standard, we

affirm flawed convictions only where we 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).    See Commonwealth v. Montrond, 477 Mass.

127, 134 (2017).

     We conclude that there was no substantial likelihood of a

miscarriage of justice because the charts did not taint the

analysts' independent opinions, which, as discussed supra, were

properly admitted.     McCowen, 458 Mass. at 484.   The expert's

opinions were what mattered to the jury, who likely would have

found the raw data incomprehensible without the accompanying

expert testimony.    Barbosa, 457 Mass. at 792.     The DNA charts

merely displayed genetic locations, not any information

regarding a match or the statistical probability thereof.


     11The defendant argues that this issue was preserved based
on Commonwealth v. Grady, 474 Mass. 715, 719 (2016), in which
this court held that a defendant need not "object to the
admission of evidence at trial where he or she has already
sought to preclude the very same evidence at the motion in
limine stage." Grady has no retroactive application.
Commonwealth v. Vazquez, 478 Mass. 443, 448 n.2 (2017). In any
case, even if Grady were retroactive, it would not apply here,
where the defendant opposed the Commonwealth's motion in limine
to substitute expert witnesses, not the charts containing the
DNA results. In fact, at trial the defendant objected only to
the size of the charts, not their statistical contents.
                                                                     14


Because the findings contained in the charts "had no meaningful

probative value without [the] expert[s'] testimony, the

erroneous admission of these underlying facts in evidence did

not result in a substantial likelihood of a miscarriage of

justice."   McCowen, supra.   See Commonwealth v. Kolenovic, 478

Mass. 189, 205-206 (2017); Barbosa, supra at 792-793.     See also

Commonwealth v. Gonzalez, 469 Mass. 410, 416 (2014) ("the

admission in evidence of those [charts] did not so materially

strengthen the Commonwealth's case as to create a substantial

likelihood of a miscarriage of justice").    The error does not

require reversal.

    ii.     Contested testimony.   The defendant contends that it

was reversible error to allow DuPont of Cellmark-Texas to

testify that the defendant's DNA profile matched one of the

profiles developed from the DNA found on the victim's jeans.

Citing Commonwealth v. Tassone, 468 Mass. 391, 402 (2014), the

defendant argues that allowing DuPont to do so violated the

defendant's confrontation rights because an analyst from

Cellmark-Maryland rather than Cellmark-Texas developed the DNA

profile from the jeans.

    In Tassone, the Commonwealth presented an expert from the

State police crime laboratory, who testified regarding a match

between DNA from the defendant and DNA from the crime scene.

Id. at 401.   However, because a different laboratory did the
                                                                    15


actual testing, and because the Commonwealth did not call an

expert affiliated with that laboratory, we held that the

defendant was "denied the opportunity to explore through cross-

examination whether the opinion [was] flawed."     Id. at 402.

That was not the case here.

     Here, the jury heard from, and the defendant had the

opportunity to cross-examine, Kristen Sullivan, the analyst from

the State police crime laboratory who developed the defendant's

DNA profile from a known sample; Cotton, the supervisor from the

laboratory (Cellmark-Maryland) that developed the DNA profile

from the red-brown stain on the victim's left front jeans

pocket; and DuPont, the analyst from Cellmark-Texas, who

compared the two profiles, and whose opinions regarding the

match and the statistical analysis were his own.     There was no

error.12

     3.    Motion for a new trial.   Following oral argument on his

direct appeal, the defendant filed a motion for a new trial,

claiming, among other things, ineffective assistance of counsel

and Brady violations.   See G. L. c. 278, § 33E.

     a.    Ineffective assistance of counsel.   The defendant

claims that his counsel was ineffective for (1) failing to


     12The defendant's further argument that it was error for
DuPont to have relied on Cotton's or Bryant's testimony is
unavailing; as we explained supra, the testimony from those
experts was properly admitted.
                                                                  16


object to the testimony of substitute witnesses, (2) waiving the

presence of the defendant's DNA expert to observe the

Commonwealth's DNA testing, (3) failing to call a pathologist or

blood-spatter expert at trial, and (4) failing to challenge

Combined DNA Index System (CODIS) evidence based on the general

mishandling of DNA evidence at the State police crime

laboratory.   The defendant also raises additional claims of

ineffective assistance pursuant to Commonwealth v. Moffett, 383

Mass. 201, 208 (1981), namely, improperly stipulating to police

diligence in the investigation; failing to investigate alibi

witnesses in a timely way; and employing an investigator with a

conflict of interest.

     Because the defendant was convicted of murder in the first

degree, rather than evaluating claims of ineffective assistance

under the traditional standard of Commonwealth v. Saferian, 366

Mass. 89, 96 (1974),13 we apply instead the more favorable

standard of G. L. c. 278, § 33E, to determine whether there was

a substantial likelihood of a miscarriage of justice.

Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), S.C., 469

Mass. 447 (2014).   See Commonwealth v. LaCava, 438 Mass. 708,


     13Under Commonwealth v. Saferian, 366 Mass. 89, 96-97
(1974), the standard is whether an attorney's performance fell
measurably below that which might be expected from an ordinary
fallible lawyer and, if so, whether such ineffectiveness has
likely deprived the defendant of an otherwise available
substantial defense.
                                                                  17


712-713 (2003), quoting Commonwealth v. Harbin, 435 Mass. 654,

656 (2002).    That is, we determine whether defense counsel erred

in the course of the trial and, if so, "whether that error was

likely to have influenced the jury's conclusion."     Wright, supra

at 682.   Under this standard, the defendant bears the burden of

demonstrating both error and harm.    Commonwealth v. Barbosa, 477

Mass. 658, 674 (2017).    Here, the defendant has not met his

burden.

    i.    Substitute witnesses.   As in his direct appeal, the

defendant claims in his motion for a new trial that it was error

for certain substitute witnesses to testify to factual findings

appearing in exhibits, chalks, and reports.    In his motion for a

new trial, he shifts the focus of the blame from the trial judge

to his trial counsel, claiming ineffective assistance where

counsel failed to object to the testimony of the substitute

witnesses.    We reviewed this claim in part 2.b, supra,14 and

found that any erroneously admitted evidence that came in by way

of substitute witnesses without objection did not create a

substantial likelihood of a miscarriage of justice.    See

Commonwealth v. Holley, 476 Mass. 114, 121 (2016).




    14 As discussed in part 1, supra, trial counsel objected to
the admission of statements contained in the autopsy report and
death certificate. Although the evidence was admitted
erroneously, we concluded that the error was harmless beyond a
reasonable doubt.
                                                                    18


     ii.   Waiver of presence of defendant's expert during DNA

testing.   The defendant also claims his trial counsel was

ineffective for failing to send an expert to the State police

crime laboratory15 to observe the DNA testing performed by the

Commonwealth that consumed the entirety of (i.e., exhausted)

particular samples.16   We need not decide whether trial counsel

erred because the defendant has failed to show that he was

harmed.    See, e.g., Commonwealth v. Hampton, 457 Mass. 152, 168

(2010); Commonwealth v. Bradshaw, 385 Mass. 244, 274 (1982).

     First, we note that in fact trial counsel had selected an

expert to attend the testing; however, that expert had passed

away before the testing could be performed.   At the time that

defense counsel waived the presence of a defense expert, the

defendant had been in custody for over one year and had an

expectation that the DNA testing would be beneficial to him.

Further, the State police crime laboratory was experiencing

delays.    Thus, trial counsel's waiver of a defense expert's

presence at the testing was tactical, and not "manifestly

unreasonable when made."    Commonwealth v. Field, 477 Mass. 553,

556 (2017).

     15As we discussed supra, three different laboratories were
involved in the DNA testing at issue in this matter: two
Cellmark laboratories and the State police crime laboratory.

     16Prior to performing testing that exhausts a sample, the
Commonwealth must request authorization from the defendant. See
Commonwealth v. Williams, 455 Mass. 706, 710 (2010).
                                                                    19


     Second, only three out of a total of eight samples were

exhausted during testing.17    Of those three samples, none matched

the DNA profile of the defendant.18    The only sample tested at

the State laboratory that matched the DNA profile of the

defendant, the bloodstain from the victim's shirt discussed

supra, was not exhausted.     As the defendant has failed to

demonstrate any prejudice as a result of not having his own

expert present during the testing, there can be no substantial

likelihood of a miscarriage of justice.     Cf. Commonwealth v.

Alicea, 464 Mass. 837, 850-851 (2013).

     iii.   Failure to call particular expert witnesses.       In

preparation for trial, defense counsel engaged both a

pathologist and a blood spatter expert, both of whom assisted

counsel in evaluating the Commonwealth's evidence and in

preparing for cross-examination of the Commonwealth's experts.

The defendant claims that his counsel's failure to call those

experts to testify at trial constituted ineffective assistance.

We disagree.

     The defendant asserts that the pathologist could have

offered an alternative theory on cause of death, but he suggests


     17The three exhausted samples were a drop of blood from a
railing and clippings from two of the victim's fingernails.

     18The DNA from the blood from the railing did not match the
defendant's DNA. Neither of the fingernail clipping samples
provided sufficient material to draw any conclusions.
                                                                   20


no such alternative theory.   As for the blood spatter expert,

the defendant claims that the expert could have explained that

the defendant's blood on the victim's shirt was from the

defendant's injured hand and was transferred there as the victim

passed the defendant inside the bar.    The defendant fails to

offer an expert affidavit, or anything else, to support this

theory.    See Commonwealth v. Linton, 456 Mass. 534, 555-556

(2010).    The defendant has failed, therefore, to meet his burden

of showing ineffective assistance.19    See Alicea, 464 Mass. at

850-851.

     iv.    Strategic choices regarding references to CODIS and

the State police crime laboratory.     The defendant next claims

that his counsel was ineffective for failing to attack the

reliability of the Commonwealth's DNA evidence based on

mismanagement at the State police crime laboratory.     We

disagree.

     As we explained supra, after the victim was killed, several

years passed before the Commonwealth focused on the defendant as

a suspect.    The Commonwealth compared the defendant's DNA

profile to crime scene samples after his DNA sample became

available in CODIS as a result of a conviction in an unrelated

     19We further note that, through cross-examination of the
Commonwealth's experts, trial counsel undermined the
Commonwealth's cause-of-death theory and elicited evidence to
support the defense's theory of how the defendant's blood was
transferred to the victim.
                                                                    21


crime.   Defense counsel sought to exclude any reference to the

defendant's DNA profile being in the CODIS database so that the

jury would not learn that the defendant had a conviction in an

unrelated matter, or speculate about why the defendant's DNA had

been entered into the database.     For its part, the Commonwealth

was concerned that if the jury did not know the circumstances in

which the police came to focus on the defendant, they might

conclude that the Commonwealth had been unduly slow or

inattentive during the investigation.     Ultimately, the parties

compromised:     the Commonwealth would not reference CODIS, and

the defendant would stipulate to police diligence in the

investigation.

    Because trial counsel determined that it would be in the

defendant's best interest for the jury not to hear about CODIS,

this necessarily meant that she would not be able to elicit

evidence regarding the alleged mismanagement of CODIS

administration at the State police crime laboratory.     This was a

reasonable strategic choice, and was therefore not ineffective

assistance of counsel.     See Field, 477 Mass. at 556-557 (2017).

See also Commonwealth v. Morgan, 453 Mass. 54, 60 (2009).

    v.   Moffett claims.     The defendant also argues that his

trial counsel was ineffective for stipulating to the diligence

of the police in their investigation; for failing to investigate

the defendant's alibi witnesses in a timely way; and for using a
                                                                    22


private investigator who had an alleged conflict of interest.

None of these claims has merit.

     First, the defendant asserts that he disagrees now with the

stipulation regarding diligent police work because the

prosecution and the police withheld exculpatory information from

the defense.    This argument is misplaced.   As discussed supra,

trial counsel stipulated that law enforcement acted diligently

over the four-year period between the death of the victim and

the arrest of the defendant so that the jury would not learn

that the defendant had been convicted of an unrelated crime.20

This stipulation had nothing to do with the mishandling of

allegedly exculpatory evidence (discussed further infra).

     Second, although the defendant claims that his trial

counsel failed to seek out alibi witnesses in a timely way, his

trial counsel disputes having been given a list of potential

witnesses.     At any rate, as discussed supra, the defendant

testified to his own movements that night, and the Commonwealth

aptly pointed out that it was possible for the defendant to have

done everything he claimed to have done and yet still have had

the opportunity to kill the victim.    As the defendant does not

say who his alibi witnesses would have been or how their

testimony would have been exculpatory given his own testimony,

     20We note that trial counsel's stipulation came before the
defendant could have learned of any alleged withheld or
destroyed evidence.
                                                                    23


he has not shown that their absence prejudiced him.     Cf. Morgan,

453 Mass. at 61 (failure to "show how [a witness] could have

aided" defendant's case fatal to defendant's claim of

ineffective assistance for failure to call witnesses).

     Third, the defendant claims that his counsel was

ineffective for hiring an investigator who was a former Quincy

police officer.   According to defense counsel's affidavit, the

investigator was never employed by Quincy police in any

capacity, and the defendant has failed to prove otherwise.    See

Commonwealth v. Comita, 441 Mass. 86, 93 (2004).21

     b.   Alleged Brady violations.   The Commonwealth must

disclose to the defense any material, exculpatory evidence over

which the prosecution has control.    Commonwealth v. Sullivan,

478 Mass. 369, 380 (2017).   See Brady, 373 U.S. at 87.    This

duty extends to evidence "in the possession of the police who

participated in the investigation and presentation of the case."

Commonwealth v. Tucceri, 412 Mass. 401, 407 (1992).

     The defendant claims that the Commonwealth violated his due

process rights by failing to preserve investigator notes and by


     21Even accepting the defendant's allegation as true, there
would be no conflict of interest. See Commonwealth v. Stote,
456 Mass. 213, 218 (2010), quoting Commonwealth v. Shraiar, 397
Mass. 16, 20 (1986) ("It is the defendant's burden to prove an
actual conflict of interest by presenting 'demonstrative proof
detailing both the existence and the precise character of this
alleged conflict of interest; we will not infer a conflict based
on mere conjecture or speculation'").
                                                                    24


failing to disclose a photograph of his injured hand.        Where the

defendant claims that the Commonwealth lost or destroyed

evidence, he bears the initial burden of showing "a reasonable

possibility, based on concrete evidence," that the evidence was

exculpatory.22     Commonwealth v. Williams, 455 Mass. 706, 718

(2010), quoting Commonwealth v. Willie, 400 Mass. 427, 433

(1984).   Here, he has failed to meet that burden.    See Williams,

supra; Commonwealth v. Cintron, 438 Mass. 779, 784-785 (2003).

     i.   Notes.    A State police sergeant destroyed his

handwritten notes of an interview with the defendant after

preparing his police report.23     Although the defendant was

necessarily aware of what took place during his interview, and

was provided with a copy of the police report, he claims that he

was deprived of the ability to mount a defense without the

underlying notes.     The defendant has not made any showing,

however, as to how the notes would have differed from the report

or otherwise would have been exculpatory.     Further, the

defendant had a full opportunity to cross-examine the sergeant

     22The defendant has not established that the police
destroyed the notes or photograph "in bad faith or recklessly."
Commonwealth v. Sanford, 460 Mass. 441, 450 (2011), quoting
Williams, 455 Mass. at 718. The defendant cannot, therefore,
take advantage of the analysis more favorable to the defendant
for such cases, which would require the Commonwealth to show
that "the lost or destroyed evidence was not potentially
exculpatory." See Sanford, supra.

     23The trooper destroyed the notes in the ordinary course of
business and well before the defendant became a suspect.
                                                                    25


about the notes, the report, and any potential discrepancies

between the two.    The defendant has failed to carry his burden.

See Commonwealth v. Kater, 432 Mass. 404, 420-421 (2000).

    ii.    Photograph.    As for the alleged photograph of the

defendant's injured hand, the defendant has failed to

demonstrate that such a photograph existed or that it would have

been exculpatory.    See Comita, 441 Mass. at 93, quoting

Commonwealth v. Bernier, 359 Mass. 13, 15 (1971) (in motion for

new trial, defendant bears burden of proving "facts that are

'neither agreed upon nor apparent on the face of the record'").

    At trial, the defendant testified that the police required

him to "peel [his bandage] back so they could take a photograph"

of his injured hand.     However, the prosecutor did not have such

a photograph and stated that he was unaware of one.     The

defendant alleges now that the Commonwealth has either withheld

or destroyed the photograph.

    The defendant has made no showing, however, of what a

photograph of his injured hand would have added to his case.

The Commonwealth never disputed that the defendant's hand was

injured:   indeed, two witnesses testified to observing the hand

injury.    The defendant has thus failed to show that such a

photograph, even assuming it existed, would have been

exculpatory.   See Commonwealth v. Laguer, 448 Mass. 585, 595,

598 (2007).
                                                                    26


    c.   Remaining Moffett claims.     Finally, the defendant's

remaining Moffett claims are without merit.     There is no basis

in the evidence that the police altered the crime scene or moved

the victim's body as the defendant claims.    See Commonwealth v.

Gentile, 437 Mass. 569, 581 (2002).    Nor is there evidence,

beyond the defendant's bald assertion, that pictures of the

crime scene were inaccurate due to renovations.    Finally, the

defendant has presented no evidence of illegal surveillance

while he was detained in the Norfolk County house of correction,

or that any such illegal surveillance was relied upon at trial.

See Comita, 441 Mass. at 93.

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

briefs and the entire record and discern no reason to reduce the

degree of guilt or grant a new trial pursuant to our power under

G. L. c. 278, § 33E.

                                      Judgments affirmed.

                                      Motion for a new trial
                                        denied.
