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SJC-10988

                 COMMONWEALTH   vs.   HAROLD PARKER.



      Suffolk.       September 12, 2018. - December 7, 2018.

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


Homicide. Kidnapping. Search and Seizure, Clothing, Exigent
     circumstances. Practice, Criminal, Capital case, Motion to
     suppress, New trial, Discovery, Argument by prosecutor,
     Assistance of counsel. Evidence, Chain of custody.



     Indictments found and returned in the Superior Court
Department on December 20, 2001.

     A pretrial motion to suppress evidence was heard by Patrick
F. Brady, J., and the cases were tried before him; and motions
for a new trial and for posttrial discovery, filed on September
1, 2016, were considered by Christine M. Roach, J.


     Richard J. Fallon for the defendant.
     Helle Sachse, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, also present) for the
Commonwealth.


    BUDD, J.     On the morning of November 4, 2001, the body of

the victim, a twenty-one year old woman, was discovered in the

Charles River near the Boston side of the Boston University
                                                                   2


footbridge.   The defendant, Harold Parker, was convicted as a

joint venturer of kidnapping and murder in the first degree in

connection with the death.1

     We consolidated his direct appeal with his appeal of the

denial of his motions for a new trial and for posttrial

discovery, and now affirm.    Further, we 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 fall of 2001, an area adjacent to the main

entrance to a public transit station in the Harvard Square area

of Cambridge, known as "the Pit," was a gathering place for an

assortment of young people, a number of them homeless.       The

victim and her boyfriend, Gene Bamford, were among those who

congregated there.

     In late October, 2001, the defendant and Ismael Vasquez,2

who held themselves out as senior members of the "Crips" gang,




     1 Of the three codefendants, brothers Ismael Vasquez and
Luis Vasquez were similarly charged and convicted, with Luis
additionally being charged with and convicted of aggravated rape
of the victim, and Scott Davenport was charged and convicted of
murder in the first degree. Commonwealth v. Vasquez, 462 Mass.
827, 828 n.3 (2012).

     2 As Ismael Vasquez and his codefendant brother Luis Vasquez
share a last name, hereafter we use their first names.
                                                                       3


recruited prospective members at the Pit, including the victim,

Bamford, Ana White, and Lauren Alleyne.

    After an initiation ceremony, which took place in a nearby

cemetery on Halloween night, Ismael, the defendant, and Bamford

explained to the assembled group that they would be sent on

"missions" to rob people.   If a member failed to complete the

mission, or otherwise failed to obey the leaders, that member

would be given a "violation," that is, a beating.     A third

violation would result in that member's death.    If the offending

member could not be found, the gang would kill someone close to

that member.

    Beginning that night, members were sent on missions.        When

enough cash and credit cards had been collected, the group

retired to a motel.   There, "marriage" ceremonies were conducted

in which Bamford was "married" to the victim, the defendant was

"married" to Alleyne, and Ismael was "married" to White.

    The next day, at a second meeting in the cemetery, Luis was

introduced to the members as one of the leaders of the group.

That day and the next, members again were sent out on missions.

On November 2, members were to report to the motel where Ismael,

Luis, and the defendant were waiting.     The victim also remained

at the motel because she was considered to be "child-like" and

would be a burden to those on missions.
                                                                       4


    While in Harvard Square, members, including Bamford and

Alleyne, learned that Ismael, Luis, and the defendant were not

Crips.   Instead, Ismael and Luis were purportedly members of the

"Latin Kings" gang, and had been sent to organize a false "set"

of Crips.    Upon hearing this news, the group renounced their

memberships; Bamford devised a plan to obtain a gun and rescue

the victim, whom Bamford feared would be in danger once Ismael,

Luis, and the defendant learned that members of the group had

turned against them.

    The next day, November 3, Alleyne returned to the motel to

warn Ismael, Luis, and the defendant of Bamford's plan.    Ismael

arranged for Scott Davenport to provide transportation for the

three men, the victim, Alleyne, and White (who had since

rejoined the group) in exchange for heroin.    The victim related

to Alleyne and White a dream she had that she interpreted to

mean that Bamford was going to betray Ismael, Luis, and the

defendant.   In turn, White told the men that the victim knew all

along that Bamford was going to turn against them.

    The group traveled to Cambridge, where the defendant told

Alleyne and White that they were going to "get" the victim.      The

defendant instructed Alleyne and White that when they heard the

phrase "green light" they were to pull the victim to the ground

and hold her down as Davenport stabbed her.    The defendant
                                                                    5


further instructed Alleyne to wrap a bandanna around her hand in

case the victim tried to bite.

    As the women walked along the tracks of a railroad bridge

that spanned the Charles River, Ismael shouted "green light."

As planned, Alleyne and White pulled the victim to the ground;

Davenport approached and stabbed the victim repeatedly, and then

Luis ran to them and struck the victim in the head several times

with a pair of "nunchucks."   Luis and Davenport then threw the

victim's body into the Charles River.

    The defendant and others were arrested hours later for

kidnapping another individual whom they believed had turned

against them.   While in custody, the defendant was questioned

about the victim's death.   Among other things, the defendant

told investigators that he knew that the victim would be killed

and was against it, but that other members threatened to kill

him and stripped him of his rank in the gang.   He also stated

that he was approximately twenty feet away from where the victim

was killed.   Later in the interview, when asked if he killed the

victim, he responded, "You don't understand that someone at my

level doesn't have to do any dirt work," and "[W]hen it comes to

trial your witnesses won't make it."

    Discussion.    In the direct appeal from his murder

conviction, the defendant asserts error in the denial of his

pretrial motion to suppress his clothing and in the prosecutor's
                                                                       6


closing argument at trial.      In the appeal from the denial of his

motion for a new trial, the defendant alleges ineffective

assistance of his trial counsel for failing to highlight

irregularities in the handling of the defendant's clothing and

asserts that had the jury been aware of the discrepancies, such

knowledge may have made a difference in their verdicts.3        We

address the issues from each appeal.

     1.   Motion to suppress.    The defendant claims that his

motion to suppress evidence obtained from his clothing was

improperly denied because there were no exigent circumstances

justifying the warrantless seizure.      We find no error.

     We summarize the facts found by the judge who heard the

motion to suppress, who was also the trial judge.      See

Commonwealth v. Stephens, 451 Mass. 370, 381 (2008).      The

defendant, the Vasquez brothers, and Davenport were arrested for

kidnapping on Saturday, November 3, 2001, and held pending

arraignment.   The victim's body was discovered the next morning.

On Monday morning, investigators received an anonymous tip that

three individuals who had been arrested for kidnapping were

involved in the victim's death.      Based on the tip and other




     3 The defendant also moved for posttrial discovery. The
judge who considered that motion did not err in denying it.
                                                                   7


corroborating evidence,4 a State police investigator had the

defendant disrobe and seized his clothing while he was in

custody awaiting arraignment.   The investigator subsequently

returned the clothing to a court officer after a District Court

judge instructed the investigator to discontinue the warrantless

seizure.   The defendant's clothing was held with his other

property, and later taken by the State police pursuant to a

search warrant issued the following day.

     "A reasonable belief as to the potential loss or

destruction of evidence may create exigent circumstances

permitting a warrantless . . . seizure of [that] evidence."

Commonwealth v. DeJesus, 439 Mass. 616, 620 (2003).      See

Commonwealth v. Figueroa, 468 Mass. 204, 213 (2014);

Commonwealth v. Gentile, 437 Mass. 569, 573 (2002).      The

defendant argues that exigent circumstances did not exist at the

time his clothing was seized because he was in police custody at

the time of the seizure and whether he would be released had not

been determined.   We find this argument unpersuasive.

     At the time of the initial seizure, the defendant was in

custody awaiting arraignment on kidnapping charges and wearing

the clothing in which he had been arrested.   Given that the


     4 The defendant does not challenge the judge's finding of
probable cause; although we do not here recite all of the
evidence available to the investigators at the time of the
seizure, we agree that probable cause existed.
                                                                    8


defendant's arrest occurred near the time of the murder, it was

objectively reasonable to believe that there was a significant

risk that the defendant might attempt to hide or destroy

evidence of the crime that existed on his clothing while in

custody, e.g., exchanging his clothes with another detainee or

washing his clothes in a jail cell sink or toilet.    See

Figueroa, 468 Mass. at 213 (exigent circumstances exist when

"police have reasonable grounds to believe that obtaining a

warrant would be impracticable under the circumstances because

the delay in doing so would pose a significant risk that . . .

evidence may be destroyed").   Further, it was unclear whether

the defendant would be released from police custody, freeing him

to hide or destroy any evidence on his clothing.     See id. at

214; Commonwealth v. Taylor, 426 Mass. 189, 195 (1997).     Thus,

there was no error in denying the defendant's motion to

suppress.5

     2.   Prosecutor's closing argument.   The defendant claims

that during the prosecutor's closing argument he made

misstatements concerning blood evidence connecting the defendant


     5 The defendant also argues that the judge erred in
determining that the seizure was of no consequence because the
clothing was returned to the court officer and no observations
of the evidence were included in the affidavit of the search
warrant. As we conclude that the motion to suppress was
properly denied on the basis of exigent circumstances, we need
not address whether the doctrine of inevitable discovery
applies.
                                                                     9


to the crime, creating a substantial likelihood of a miscarriage

of justice.   See G. L. c. 278, § 33E.   We disagree.

    The jury heard from experts regarding three bloodstains on

the defendant's sweatshirt.   Two of the stains were found to be

human blood and were consistent with spatter stains.    The

remaining bloodstain, too small to analyze further, was

consistent with being either a spatter or a transfer stain.     An

analysis of the deoxyribonucleic acid (DNA) in one of the two

larger stains revealed a DNA mixture from at least two people,

and that a major profile found in the mixture matched that of

the victim.   In his closing, the prosecutor argued that all

three stains were from the nunchucks used to hit the victim,

stating, "[Y]ou also heard about the three spots of spatter on

[the defendant's] shirt. . . .   [T]hat's probably how those

three drops of the victim's blood get there."

    The defendant claims that the prosecutor's suggestion that

all three stains were spatter and that all three were consistent

with the victim's blood were misstatements of the evidence

warranting reversal of his convictions.   Because the defendant

failed to object to the prosecutor's closing argument at trial,

our review is limited to determining whether any error produced

a substantial likelihood of a miscarriage of justice.

Commonwealth v. Mendez, 476 Mass. 512, 521 (2017), citing

Commonwealth v. Taylor, 455 Mass. 372, 377 (2009).
                                                                     10


       "In closing argument, '[p]rosecutors are entitled to

marshal the evidence and suggest inferences that the jury may

draw from it.'"   Commonwealth v. Roy, 464 Mass. 818, 829 (2013),

quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982).     Such

inferences need only be reasonable and possible based on the

evidence before the jury.    Roy, supra.   Taylor, 455 Mass. at

383.   "Prosecutors may not 'misstate the evidence or refer to

facts not in evidence,'" however.    Commonwealth v. Martinez, 476

Mass. 186, 200 (2017), quoting Commonwealth v. Kozec, 399 Mass.

514, 516-517 (1987).

       Here, expert testimony established that two of the three

stains were consistent with spatter, and the third was

consistent with either spatter or transfer.    This testimony,

coupled with the third stain's proximity to the first and

second, provided a solid basis for the inference that all three

stains were spatter.    See Commonwealth v. Cole, 473 Mass. 317,

333 (2015); Roy, 464 Mass. at 829.    Similarly, the suggestion

that all three stains contained the victim's blood was also a

fair inference to draw based on the evidence and the

Commonwealth's theory of the case.    See Commonwealth v.

Valentin, 474 Mass. 301, 308-309 (2016); Commonwealth v.

Blaikie, 375 Mass. 601, 612 (1978) ("counsel may argue

inferences from the evidence which are most favorable to his or
                                                                  11


her theory of the case, as long as the inferences drawn are

reasonable").

    Also unavailing is the defendant's argument that the

prosecutor should have mentioned the DNA mixture in the lone

bloodstain that was tested.    The defendant's theory was that he

was present for the victim's murder but that he was not a

participant.    The prosecution's theory was that the defendant

ordered the killing but did not physically carry it out.     Given

this basic agreement on the facts, we are not persuaded that

mention of the DNA mixture would have had any meaningful

exculpatory effect.    Whether or not the prosecutor misstated the

evidence by omitting this particular fact, the omission was not

likely to have influenced the jury's decision, and thus there

was not a substantial likelihood of a miscarriage of justice.

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

Mass. 447 (2014).

    3.   Ineffective assistance of counsel.    In his motion for a

new trial, the defendant claims that his trial counsel was

ineffective for failing to highlight irregularities in the way

investigators handled evidence in order to cast doubt on the

chain of custody and, ultimately, on the fact that on the night

of the murder the defendant was wearing a blue fleece pullover,

which was later found to have human bloodstains.
                                                                  12


     Because the defendant was convicted of murder in the first

degree, rather than reviewing the claim under the traditional

Saferian standard,6 we ask whether there was error resulting in a

substantial likelihood of a miscarriage of justice pursuant to

G. L. c. 278, § 33E.   Wright, 411 Mass. at 681-682.   In essence,

"[t]he burden is on the defendant to demonstrate that something

inappropriate was likely to have unfairly influenced the jury's

verdict."   Commonwealth v. Barbosa, 477 Mass. 658, 674 (2017),

quoting Commonwealth v. Painten, 429 Mass. 536, 550 (1999).

     The defendant raises two points based on appellate

counsel's inspection of the evidence posttrial.   First, the

cardboard box that contained Luis's clothing was labeled with

his name on both the top flap and the side of the box, but also

had the defendant's name on the box with a line through it.

Second, according to the investigator's testimony, the

defendants' clothing was placed into five separately labeled

plastic bags at the police station prior to being put into

evidence boxes.   However, appellate counsel found two additional

unlabeled plastic bags with the trial evidence that were not

referenced during the trial.


     6 Under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974),
the traditional standard for ineffective assistance of counsel
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.
                                                                     13


    The defendant asserts that trial counsel's failure to

direct the jury's attention to these discrepancies may have made

a difference in the jury's verdicts.    We disagree.   Counsel for

both Ismael and the defendant vigorously challenged the chain of

custody of the clothing generally.    The defendant's trial

counsel focused on the fleece pullover in particular, pointing

out that there was no record of what the defendant wore when he

was arrested, and that the defendant's booking photograph

depicted him in a white T-shirt.     Finally, defense counsel

established during cross-examination that the clothing seized

from the defendant by an investigator was given to a court

officer in unlabeled evidence bags when the investigator was

ordered to stop the seizure.

    The defendant has made no showing that the discrete issues

he raised in support of his motion for a new trial would have

made a difference in the jury's verdicts, especially because he

has made no connection between the discrepancies and the fleece

pullover.   More importantly, although the blood evidence on the

fleece pullover was part of the Commonwealth's case, the

defendant was alleged to have ordered the killing, and not to

have committed the murder himself.    Thus, the blood evidence was

merely additional circumstantial evidence showing that the

defendant was present during the murder.
                                                                  14


    4.   Review under G. L. c. 278, § 33E.   In addition to a

review of the prosecutor's closing argument, we have reviewed

the entire record and discern no reason to reduce the degree of

guilt or grant a new trial pursuant to our powers under G. L.

c. 278, § 33E.

    Conclusion.   We affirm the defendant's convictions and the

order denying the defendant's motions for a new trial and for

posttrial discovery.

                                   So ordered.
