NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11683
SJC-11937

               COMMONWEALTH   vs.   RONALD C. DAME.



      Worcester.      November 6, 2015. - February 3, 2016.

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


Homicide. Constitutional Law, Delay in commencement of
     prosecution, Search and seizure, Probable cause. Due
     Process of Law, Delay in commencement of prosecution.
     Deoxyribonucleic Acid. Probable Cause. Search and
     Seizure, Motor vehicle, Probable cause. Practice,
     Criminal, Capital case, Indictment, Delay in commencement
     of prosecution, Motion to suppress, Harmless error,
     Execution of sentence, Sentence. Error, Harmless.



     Indictment found and returned in the Superior Court
Department on November 20, 2006.

     A motion to dismiss was heard by James R. Lemire, J.; a
pretrial motion to suppress evidence was heard by Peter W.
Agnes, Jr., J.; and the case was tried before Richard T. Tucker,
J.
     A motion for a stay of sentence filed in the Supreme
Judicial Court was referred to Spina, J., and was considered by
him.


     Theodore F. Riordan (Deborah Bates Riordan with him) for
the defendant.
     Donna-Marie Haran, Assistant District Attorney, the
Commonwealth.
                                                                     2




     CORDY, J.   Clara Provost (victim) was brutally murdered in

the bedroom of her apartment sometime after 10:30 P.M. on

January 6 or early in the morning hours of January 7, 1974.     The

subsequent police investigation focused on several potential

suspects.    A year of investigation produced a circumstantial but

not very strong case against the defendant, including a brief

prior dating relationship with the victim that apparently ended

badly; a flawed alibi; fresh scratches on his face; and a

handprint on the outside of the door through which the murderer

forced entry into the apartment.1   No one was indicted for the

murder, and the investigation became largely dormant.2

     During the murder investigation in 1974, however, tissue

was taken from under the fingernails of both hands of the victim

and preserved.   More than twenty-five years later, analysis of

this evidence proved decisive in the decision to prosecute the

case.    As increasingly advanced methods of deoxyribonucleic acid


     1
       The evidence also included the observations of two
witnesses, one of whom saw a man parked in a truck near the
victim's apartment when the witness left that apartment at
approximately 10:30 P.M., and another who observed a man climb
over a wall next to the victim's apartment building around
midnight. Neither could positively identify the defendant as
the individual they saw that evening.
     2
       There were periods of activity thereafter; for example, a
number of the witnesses were reinterviewed in 1983 after a
potential lead developed in the case involving another
individual. That lead did not pan out.
                                                                   3


(DNA) analysis became more reliable, accurate, and accepted as

evidence admissible in Massachusetts proceedings, Commonwealth

v. Vao Sok, 425 Mass. 787, 789 (1997) (finding reliable and

approving polymerase chain reaction analysis), a new era of

investigation commenced.   The samples that had been preserved

were analyzed and swabs were taken from the previously

identified potential suspects.   The analysis identified the

tissue that contained DNA as consistent with the defendant's DNA

and inconsistent with the DNA of the other suspects.     This

evidence, combined with the fresh scratches observed (and

photographed) by the police on the defendant's face when he was

interviewed the day after the murder in January, 1974, led to

his indictment on November 20, 2006, and ultimately his

conviction on February 24, 2012, of murder in the first degree

on the theory of extreme atrocity or cruelty.3

     The defendant raises several claims on appeal.    First, he

challenges the denial of his pretrial motion to dismiss the

murder indictment on the ground that the Commonwealth recklessly

or negligently delayed indicting him for thirty-two years,

prejudicing his defense.   Second, he claims error in the denial

     3
       The case was submitted to the jury based on three theories
of murder in the first degree: premeditated murder, murder by
extreme atrocity or cruelty, and felony-murder. The underlying
felony was armed burglary. The jury were also instructed on
theories of murder in the second degree, including felony-murder
in the second degree, with the underlying felony being assault
with intent to commit rape.
                                                                     4


of his motion to suppress evidence of a paper towel that the

police seized from his vehicle without probable cause to believe

that evidence of the crime would be found in there.    Finally,

the defendant requests relief under G. L. c. 278, § 33E.

     Just before he filed his appellate brief with this court,

the defendant filed a motion to stay the execution of his

sentence.    The motion was referred by the full court to the

single justice, who denied it.   The defendant's appeal from the

denial of this motion was consolidated with his direct appeal.

     Although we agree that the paper towel should have been

suppressed,4 we affirm the defendant's conviction, as well as the

denial of his motion to stay the execution of his sentence.

After a review of the record, we also decline to grant relief

pursuant to G. L. c. 278, § 33E.

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

found, reserving discussion of other evidence to our

consideration of the legal issues raised.

     The victim was twenty-three years old at the time of her

death.    She lived with her three and one-half year old son in

the first-floor apartment of a multifamily residence at 30

Lunenburg Street in Fitchburg.    The victim's parents, her



     4
       Because of this conclusion, we need not reach the
defendant's challenge to the admission in evidence of the paper
towel on relevancy grounds.
                                                                   5


brother, and three of her sisters lived in the second-floor

apartment, which had a separate entrance off 13 Highland Avenue.

     In late November 1973, the defendant met the victim at a

country-western club.    Shortly thereafter, the defendant took

the victim on a date, at which time he engaged in oral sexual

relations with her.     They may have gone on at least one other

date.   After Thanksgiving and until the time of her murder,

however, the victim began a regular dating relationship with

another man, Gerard Duhaime, a soldier stationed at Fort Devens.

     On Saturday, January 5, 1974, the victim and her sister

Beatrice were walking to a local bar about five minutes from

their residence when they saw the defendant drive by them very

slowly.   The victim's demeanor changed after this encounter; she

had previously been very excited about going out with her

sister.   After arriving at the bar, the victim realized she had

forgotten her driver's license and returned home alone to

retrieve it.   Her sister Sheila, who was at the victim's

apartment taking care of the victim's son, testified that the

victim returned to her apartment "in a rush," grabbed her

driver's license on the table, and left.     Beatrice testified

that the victim took an unusually long time, more than one-half

hour, to return to the bar, and when she returned it was as if

"she was in another world.    She wouldn't even talk."
                                                                      6


    On Sunday, January 6, 1974, the victim spent the day with

her son and Sheila.     Sheila left the victim's apartment at

around 6 P.M.    The victim asked Sheila to unlock the door

downstairs for her boy friend, Duhaime, who was coming later

that night.     Duhaime was at the victim's apartment from

approximately 7:30 P.M. to 10:30 P.M.     He made sure the door was

locked when he left.

    On the way to his vehicle, Duhaime noticed a man sitting in

a dark pick-up truck with the engine running, staring at him.

Duhaime made eye contact with the man a few times and the

encounter made him "very uncomfortable" and "kind of nervous."

As Duhaime drove away in his vehicle, the truck followed him at

a close distance with its headlights on, but turned off shortly

thereafter.   After the victim's murder, the police showed

Duhaime the defendant's photograph.     Duhaime said that the

defendant's eyes reminded him of the same eyes, with "that same

cold, mean look," he saw when he was leaving the victim's

apartment on January 6.

    That same evening, shortly after midnight, Steven Svolis

was driving his vehicle in the area of Lunenburg Street when he

saw a man jumping over the wall between the victim's apartment

building and the building next to it.     Svolis described the man

as being tall and thin, and having long straight hair on the

top, which was consistent with Dame's appearance.     The man was
                                                                    7


wearing a suede coat with sheepskin lining that was a "car-coat

length," dark pants, light socks, and dark shoes.5

     On January 6, 1974, Colleen Regan, a young woman who had

been regularly dating the defendant since the prior year, told

the defendant that she had plans to go on a date with another

man that night.   The defendant was upset about the date and went

to her house to see if she would change her mind.     Regan told

the defendant she was going to go on the date, and he told her

he would be at the Eastwood Club that evening.   A few days

later, Regan saw the defendant and observed that he had

scratches on his face that were not there when she saw him on

January 6.

     On January 7, 1974, the victim was found lying on her bed,

naked from the waist down.   Blood was pooling on her bed.    Her

head was wedged between the headboard and the mattress and her

throat had been severely slashed.   During his examination of the

crime scene, a State police trooper observed a smeared bloody

handprint on the victim's left inner thigh.   He also observed

that the door to the victim's apartment had been forced open,

with the latch broken.   Other police officers found "some pieces

of paper towel" on the floor in front of the stove.     No usable

fingerprints, besides those of the victim, were found in the


     5
       After reading about the victim's murder in the newspaper,
Steven Svolis went to the police and reported what he had seen.
                                                                    8


apartment.   On the front door, however, a palm print and three

latent prints that matched the defendant's fingerprints were

found slightly above the broken latch.   Scrapings from under the

victim's fingernails from both hands were preserved because they

contained human blood and skin tissue.

     Later that day, the Fitchburg police interviewed the

defendant.   There were several scratches on the defendant's left

cheek, which were then photographed.   During the interview, the

police went outside to the defendant's vehicle, opened the rear

door, and retrieved a paper towel from the back seat area.

Sperm cells were later detected on the paper towel that was

found in the defendant's vehicle.   The defendant was

subsequently interviewed by the police multiple times in

January, 1974.   No one was charged with the victim's murder.6

     More than twenty-five years later, on December 1, 1999, a

chemist at the State police crime laboratory sent samples from

the paper towel found in the defendant's vehicle and from the

fingernail scrapings to the Federal Bureau of Investigation



     6
       The case file was opened briefly in 1983 based on a police
interview in Keene, New Hampshire, after a woman accused a man
with whom she had been in a prior relationship, George Dunton,
of the victim's murder. Police determined that he had nothing
to do with the homicide. This information was not presented at
trial, although a deoxyribonucleic acid (DNA) analyst testified
that she compared the DNA profile derived from the fingernail
scrapings to Dunton's profile and excluded him as a potential
source of the DNA present in the scrapings.
                                                                    9


(FBI) for DNA testing.    Between 2000 and 2006, the police

obtained DNA from the defendant, Duhaime, and George Dunton.7

     The DNA samples were further tested by a DNA analyst in the

State police crime laboratory in 2007 using more sophisticated

analytical techniques.    A DNA profile was created for each of

the three men.    The fingernail scrapings from the victim's right

hand contained a single source male profile which "matched the

DNA profile" from the defendant such that the defendant could

not be excluded as a contributor to the sample.    Dunton and

Duhaime were excluded as potential sources of DNA present in the

fingernail scrapings.    Based on standard DNA testing, the

probability of a randomly selected unrelated person having

contributed DNA to this mixture was approximately one in 5,227

of the Caucasian population.8    Based on the more advanced short

tandem repeat of the Y chromosome testing on the fingernail

scrapings,9,10 the defendant's profile would not have been



     7
       The results of the testing by the Federal Bureau of
Investigation were not admitted at trial, but excluded Dunton
and Gerard Duhaime as possible contributors to the sample. The
defendant was not excluded as a contributor. In 2007, more
advanced DNA analysis was performed. The results of this
analysis were presented at trial.
     8
         The defendant is Caucasian.
     9
       Short tandem repeat of the Y chromosome (Y-STR) testing
permits testing on smaller samples of DNA than other forms of
DNA testing.
                                                                   10


expected to occur more frequently than one in 2.2 million

unrelated Caucasian males.11

     As for the paper towel seized from the defendant's vehicle,

the nonsperm fraction contained a mixture of DNA from more than

one source, and the defendant matched the major male profile in

that DNA mixture.   The probability of a randomly selected

individual unrelated to the defendant having a DNA profile

matching that obtained from the nonsperm fraction was

approximately one in 27.8 million of the Caucasian population.

     At trial, the defendant denied that he broke into the

victim's apartment and murdered her.    He testified that during

the night of the murder he was at the house of his sister,

Theresa LaPlume, from about 7 P.M. until approximately midnight,

and then went directly to his home.    The defendant testified


     10
       At trial, the DNA analyst explained that DNA analysis
involves four steps: extracting a sample; determining the
quantity of sample available; amplifying the locations of
interest within the sample (of which there are fifteen that are
used because they are "highly discriminating between
individuals"); and converting the amplified sample into a visual
product known as the DNA profile. STR testing involves the
amplification process by which fifteen locations of interest are
copied. Y-STR testing focuses on sequences of DNA found only on
the Y-chromosome, so although the fifteen sites are shared
between males and females, the Y-STR sequences are found only in
males.
     11
       At trial, defense counsel's legal assistant testified
that she researched and constructed a family tree of the
defendant's male relatives and determined that, in 1974, the
defendant had twenty-four to twenty-five male relatives living
in the Fitchburg area.
                                                                      11


that his niece scratched his face while he was at his sister's

house.   LaPlume died in 1993.    In rebuttal, the Commonwealth

called Robert Powers, who testified that he saw the defendant at

the Eastwood Club on January 6, 1974.      Specifically, Powers

testified that he, his children, and his wife were at the club

from approximately 7:30 P.M. to 9 or 9:30 P.M., and that during

that time the defendant spoke with his wife.      He also testified

that the defendant was still at the club when he and his family

left.

    2.    Motion to dismiss.     On appeal, the defendant argues

that the judge erred in denying his motion to dismiss the

indictment because of preindictment delay by the Commonwealth.

The defendant contends that the thirty-two year delay between

the victim's murder and the return of the indictment against him

prejudiced his defense to a degree constituting a violation of

his due process rights.   The crux of the defendant's argument is

that his alibi witness, his sister, died in 1993 and was

therefore unable to testify in his defense, and that the

Commonwealth was "reckless and/or negligent" in failing to

charge him when she was still alive.

    Due process principles intrinsic to the Fifth Amendment to

the United States Constitution and art. 12 of the Massachusetts

Declaration of Rights protect putative defendants from

preindictment delays by the government that are intentional and
                                                                    12


prejudicial.   Commonwealth v. Dixon, 458 Mass. 446, 458 (2010),

citing United States v. Lovasco, 431 U.S. 783, 789 (1977) ("Due

Process Clause has a limited role to play in protecting against

oppressive delay").    A defendant seeking dismissal of an

indictment due to preindictment delay "must demonstrate that he

suffered substantial, actual prejudice to his defense, and that

the delay was intentionally or recklessly caused by the

government."   Commonwealth v. George, 430 Mass. 276, 281 (1999),

and cases cited.    "[T]he burden of establishing the

constitutional violation is a heavy one."     Commonwealth v. Best,

381 Mass. 472, 484 (1980).     The motion judge denied the motion

on the ground that the defendant had not established either

substantial actual prejudice or that the delay was intentionally

or recklessly caused by the Commonwealth.     We agree with the

judge's findings.

    a.   Prejudice.    "The primary purpose of preindictment due

process analysis is to assess prejudice to the defendant's

ability to mount a defense."    King v. Commonwealth, 442 Mass.

1043, 1044 (2004), quoting Commonwealth v. Imbruglia, 377 Mass.

682, 691 (1979).    Although the preindictment delay surely caused

some prejudice to the defendant's case, the circumstances do not

give rise to the "severe prejudice" that would require the

"drastic remedy" of dismissal of the indictment (citation
                                                                  13


omitted).   Commonwealth v. Fayerweather, 406 Mass. 78, 87

(1989).

     The defendant claims that LaPlume's testimony would have

corroborated his alibi that he was at her home from

approximately 7 P.M. to until shortly after midnight on the

evening of the murder, and that she would have testified that

her daughter, the defendant's niece, scratched his face,

providing an explanation for how the defendant's face was

scratched that evening.   The defendant claims that LaPlume's

absence at trial was irremediable because, although he could

testify himself as to his alibi, his testimony would have been

bolstered by LaPlume's testimony.

     We disagree with the defendant's assertion that the loss of

LaPlume's testimony caused severe prejudice.   First, LaPlume's

report to the police that the defendant arrived at her home on

the night of the murder between 6:30 P.M. and 7 P.M. was

contradicted by other noninterested witnesses who told the

police that the defendant was at the Eastwood Club that night.

One of those witnesses, Powers, told the police in January,

1974, and testified at trial that he saw the defendant at the

Eastwood Club on January 6, 1974, from 7:30 P.M. until

approximately 9 or 9:30 P.M.12,13 In addition, during the


     12
       The defendant argues that his alibi remains intact
despite Robert Powers's testimony because Powers's statements do
                                                                  14


investigation, LaPlume's husband contradicted LaPlume's report

by telling the police that he left his house around 7:30 P.M. on

the night of the victim's murder and that the defendant was not

at the home.   Regan, who was dating the defendant at the time of

the victim's murder, also testified that the defendant had told

her at 6 P.M. that night that he would be at the Eastwood Club.

Given these facts, we cannot conclude that LaPlume's testimony

would have significantly aided the defendant's defense.

    In addition to the reports contradicting LaPlume's

statements about the defendant's whereabouts on the night of the

murder, "[c]ommon sense and the case law dictate that the

testimony of a blood relative of the defendant is inherently


not directly contradict Theresa LaPlume's time line as to where
the defendant was after 9:15 P.M. This dispute as to his
whereabouts on the evening of murder was brought to the
attention of the jury, as the defendant testified on his own
behalf, stating that he went to LaPlume's home after leaving the
Eastwood Club. The jury were therefore aware of the limitations
of Powers's testimony and could draw their own conclusions as to
the defendant's whereabouts on the night of the murder. See
Commonwealth v. Cannon, 449 Mass. 462, 469 n.17 (2007) ("It is
for the jury to make a determination of credibility"). Powers's
statements do, however, directly contradict the defendant's
testimony as to the time the defendant arrived at his sister's
home. This discrepancy would have permitted the jury to infer
the defendant was never there.
    13
       In his reply brief, the defendant argues for the first
time that Powers was not a particularly credible witness because
he was biased against the defendant, who had flirted with
Powers's wife at the Eastwood Club. We need not consider this
argument, given that credibility determinations are for the jury
and that defense counsel had an opportunity to elicit testimony
on this point during his cross-examination of Powers but did not
do so.
                                                                 15


less credible than the testimony of other witnesses."

Commonwealth v. Thomas, 429 Mass. 146, 153 (1999).14    Here, where

LaPlume's testimony would have been contradicted at trial by

unrelated parties, we cannot conclude that her testimony would

have been so powerful as to exculpate the defendant.15

Additionally, the defendant was able to pursue his alibi defense

through his own testimony at trial.16


     14
       The defendant also claims that, in deciding the motion to
dismiss, it was improper for the motion judge to balance
LaPlume's statements to the police against those made by other
witnesses to the police because such credibility determinations
are for the jury. We disagree, as it is implicit in the
preindictment delay analysis that the judge must assess
prejudice to the defendant's case by weighing the missing
evidence against the other evidence to be presented at trial.
See, e.g., Commonwealth v. Patten, 401 Mass. 20, 22 (1987)
(judge reviews record to determine whether defendant has
adequately demonstrated through "concrete evidence, and not
simply by a fertile imagination, a reasonable possibility that
access to the lost items would have produced evidence favorable
to his cause"). Here, the judge properly considered the
likelihood that LaPlume's testimony would have exculpated the
defendant and concluded that the defendant had not demonstrated
such a likelihood in light of the other evidence discussed.
     15
       After interviewing witnesses who placed the defendant at
the Eastwood Club (and not LaPlume's home) on the evening of
January 6, 1974, the police confronted LaPlume. She began to
shake and tear up and told the police to leave her house. The
police also developed information that the defendant went to
LaPlume's house at 8 A.M. on the morning of January 7, 1974,
several hours after the murder.
     16
       The defendant also argues that his constitutional right
not to testify was infringed because, without LaPlume, the
presentation of his alibi defense required him to testify. We
disagree. See Commonwealth v. Toon, 55 Mass. App. Ct. 642, 651
n.12 (2002) ("That a defendant may need to testify or present
evidence in order to raise self-defense does not violate State
                                                                  16


    Finally, "[t]he likelihood that the loss was prejudicial is

eased by the reliability of the evidence presented by the

government" (citation omitted).   Imbruglia, 377 Mass. at 689.

Here, the Commonwealth presented ample evidence from which the

jury could find that the defendant murdered the victim,

including the defendant's handprint on the door broken into by

the killer; a photograph of the scratches on the defendant's

face that Regan testified were not there when she last saw him

earlier in the evening of January 6, 1974; and the DNA analysis

comparing the defendant's DNA with that present in the blood and

tissue scrapings taken from under the victim's fingernails.

    Thus, the defendant has not shown that LaPlume's statements

would have significantly aided his defense, see Lovasco, 431

U.S. at 783 ("every delay-caused detriment to a defendant's case

should [not] abort a criminal prosecution"), and has failed to




or Federal constitutional privileges against self-
incrimination"). See also Commonwealth v. Beauchamp, 49 Mass.
App. Ct. 591, 606-607 (2000), quoting Williams v. Florida, 399
U.S. 78, 83-84 (1970) (that defendant felt "virtually compelled"
to testify did not infringe on privilege against self-
incrimination; "The defendant in a criminal trial is frequently
forced to testify himself . . . in an effort to reduce the risk
of conviction . . . . That the defendant faces such a dilemma
demanding a choice between complete silence and presenting a
defense has never been thought an invasion of the privilege
against compelled self-incrimination").
                                                                  17


meet his burden of showing substantial actual prejudice to his

defense as a result of preindictment delay.17

     b.   Recklessness.   Dismissal of an indictment is only

required where a defendant makes a persuasive showing of both

actual prejudice and intentional or reckless conduct by the

government that caused the delay.   See Imbruglia, 377 Mass. at

691, citing Lovasco, 431 U.S. at 790 ("Proof of prejudice is a

necessary, but not sufficient element of a due process claim").

Here, where the defendant concedes that the delay was not

intentional, we focus our analysis on whether the preindictment

delay was "incurred in reckless disregard of known risks to the

     17
       The defendant also argues that, in addition to granting a
new trial, this court should rule that LaPlume's statements to
the police are admissible under Commonwealth v. Drayton, 473
Mass. 23 (2015). In Drayton, we held that an otherwise
inadmissible hearsay statement may be admissible if the
statements were "critical to [the defendant's] defense" and bore
"persuasive assurances of trustworthiness." Id. at 36, quoting
Chambers v. Mississippi, 410 U.S. 284, 302 (1973). We disagree
with the defendant's assertion that the "narrow" constitutional
principle governing the facts in Drayton, supra at 32, applies
in this case. As discussed, LaPlume's testimony was not
"critical" to the defendant's defense because he was able to
testify to the same information. Additionally, LaPlume's
statements were contradicted by the statements of other
witnesses, contrast id. at 27, 37-38 (witness's hearsay
statements more trustworthy when corroborated by statements by
other witnesses), and she had a familial relationship with the
defendant, rendering her testimony inherently less credible than
statements by the other noninterested witnesses in the case.
See Commonwealth v. Thomas, 429 Mass. 146, 153 (1999). While
LaPlume consistently told the police that the defendant was at
her home on the night of the murder, these latter two points
weigh heavily against finding that LaPlume's statements bore
"persuasive assurances of trustworthiness." Drayton, supra at
36.
                                                                   18


putative defendant's ability to mount a defense" such that

dismissal is warranted.   Imbruglia, supra.   Although this case

involves a considerable passage of time between the murder and

the indictment, the defendant points to no facts in the record,

nor do we discern any, that suggest recklessness by the

Commonwealth in investigating the murder or bringing the

indictments.   Instead, the defendant merely states that "[t]he

delay was reckless."   Such a conclusory statement will not

suffice to meet the defendant's heavy burden of proving a

constitutional deprivation.   Commonwealth v. Ridge, 455 Mass.

307, 332 (2009), quoting Best, 381 Mass. at 484.

    From our review of the record, it is apparent that the

Commonwealth investigated at least one other potential suspect

in the 1980s, and followed up on DNA testing as it became more

widely available and approved as admissible evidence in the late

1990s.   The defendant contends that the fact that the results of

the initial DNA testing done by the FBI were returned to the

State police crime laboratory in 2001 belies the Commonwealth's

contention that the DNA evidence is what motivated it to seek

the indictment against the defendant in 2006.   To the contrary,

after the initial DNA testing by the FBI, the Commonwealth

reinvestigated the other potential suspects, took additional

saliva samples, and retested the DNA samples using more advanced

techniques as they became available.   These facts do not support
                                                                    19


a finding of recklessness.   See Lovasco, 431 U.S. at 791-792

(declining to adopt rule requiring government to file charges

once probable cause has been established or once government has

"assembled sufficient evidence to prove guilt beyond a

reasonable doubt").18

     The defendant also urges the court to depart from our

holding in Imbruglia and conclude that a negligent delay may

constitute a due process violation requiring dismissal of an

indictment.   We decline to do so.    We recognize that negligent

preindictment delay may amount to a constitutional violation in

some cases, see, e.g., Howell v. Barker, 904 F.2d 889, 895 (4th

Cir.), cert. denied, 498 U.S. 1016 (1990); however, such

circumstances are not present here.    Moreover, there is no

reason to revisit our established rule where the defendant has

otherwise failed to make the requisite showing of actual


     18
       Although much of our inquiry focuses on the defendant's
due process rights and corresponding ability to mount a defense,
our analysis also incorporates some deference to the interests
of prosecutorial discretion. "[P]rosecutors are under no duty
to file charges as soon as probable cause exists but before they
are satisfied they will be able to establish the suspect's guilt
beyond a reasonable doubt. To impose such a duty 'would have a
deleterious effect both upon the rights of the accused and upon
the ability of society to protect itself.'" United States v.
Lovasco, 431 U.S. 783, 791 (1977), quoting United States v.
Ewell, 383 U.S. 116, 120 (1966). To the extent that the
prosecution is required to make "'a necessarily subjective
evaluation of the strength of the circumstantial evidence
available and the credibility of the [defendant's] denial,' some
delay is normal and justifiable." Commonwealth v. Best, 381
Mass. 472, 485 (1980), quoting Lovasco, supra at 793.
                                                                   20


prejudice to his defense and is therefore not entitled to a

dismissal of the murder indictment against him.   We accordingly

affirm the denial of the defendant's motion to dismiss the

indictment for preindictment delay.

     3.   Motion to suppress motor vehicle search.   The defendant

also appeals from the denial of his motion to suppress paper

towel evidence seized from his motor vehicle.   The defendant

concedes that the police had probable cause to believe he

murdered the victim at the time his motor vehicle was searched.

He argues, however, that the motion was wrongly denied because

there was no probable cause to believe there was evidence of the

crime in his vehicle, noting that the motion judge's ruling

makes no findings about his vehicle being driven on the night of

the crime or being otherwise involved in the crime.19

     "In reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error 'but

conduct an independent review of his ultimate findings and

conclusions of law.'"   Commonwealth v. Scott, 440 Mass. 642, 646

(2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002).   Credibility determinations are "the province of the

motion judge who had the opportunity to observe the witnesses."


     19
       The defendant had access to at least two vehicles during
this time period -- his father's pickup truck and a Chevrolet
Super Sport vehicle. The paper towel was seized from the
interior of the Chevrolet.
                                                                   21


Commonwealth v. Johnson, 461 Mass. 44, 48 (2011).    "Our review

here is based on the facts as developed at the suppression

hearing, not at trial."   Id.

     The motion judge found the following facts.    On the evening

of January 7, 1974, Fitchburg police Detective Joseph Carbone

came into contact with the defendant, who had voluntarily come

to the police station and was being interviewed by State police

Lieutenant John J. Carney and Fitchburg police Detective Paul

Keating.   At one point, Carbone followed Detective David Caputi

outside to the defendant's vehicle, which was parked at the

police station.   Carbone watched as Caputi opened the rear door

to the defendant's vehicle and retrieved what Carbone perceived

to be some rags or clothes from the back seat area (the parties

agree the paper towel evidence was included).   We assume that

the Commonwealth could not establish that the search had been

consented to by the defendant.20

     Under both the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights, warrantless searches "are per se unreasonable -- subject


     20
       At the hearing on the motion to suppress, which took
place in 2010, although there was testimony that police officers
had a key to the defendant's vehicle, there was no witness
available to the Commonwealth who could testify regarding the
defendant's consent to the search. A report written by one of
the police officers stating that the defendant had given
permission for the warrantless search was excluded by the motion
judge, and the officer who wrote the report was deceased.
                                                                   22


only to a few specifically established and well-delineated

exceptions" (citation omitted).   Commonwealth v. Cast, 407 Mass.

891, 901 (1990).   "One of those exceptions, commonly known as

'the automobile exception,' applies to situations where the

police have probable cause to believe that a motor vehicle

parked in a public place and apparently capable of being moved

contains contraband or evidence of a crime."     Commonwealth v.

Bostock, 450 Mass. 616, 624, (2008).     "The existence of probable

cause depends on whether the facts and circumstances within the

officer's knowledge at the time of making the search or seizure

were sufficient to warrant a prudent man in believing that the

defendant had committed, or was committing, an offense."

Commonwealth v. Miller, 366 Mass. 387, 391 (1974).    In

determining whether the police had probable cause to search the

defendant's vehicle without a warrant, we ask whether "the

information possessed by police, at the time of the proposed

warrantless search, provide[d] a substantial basis for the

belief that there [was] a timely nexus or connection between

criminal activity, a particular person or place to be searched,

and particular evidence to be seized."    Commonwealth v. Cataldo,

69 Mass. App. Ct. 465, 470 (2007), quoting Grasso & McEvoy,

Suppression Matters under Massachusetts Law § 14–1[b], at 14–3

(2006).
                                                                     23


    We previously have found probable cause to conduct a

warrantless search of a vehicle where facts indicated that there

was a connection between the crime and the vehicle.    See, e.g.,

Commonwealth v. Gentile, 437 Mass. 569, 573-574 (2002) (probable

cause existed to believe evidence concerning crime would be

found in defendant's truck where, when victim was last heard

from, she had been with defendant in his truck); Commonwealth v.

Beldotti, 409 Mass. 553, 557 (1991) (probable cause existed to

believe that evidence concerning crime would be found in

defendant's home where defendant's motor vehicle was parked

because defendant was with victim that morning and had driven

his vehicle on day of murder).

    In contrast, here the motion judge found no facts

connecting the crime and the defendant's vehicle.     There was no

finding that the defendant had driven the vehicle searched on

the night of the murder or had otherwise used the vehicle in

furtherance of the crime, nor were there any other facts found

that would support an inference that evidence would probably be

found therein.    We therefore conclude that the motion judge

erred in denying the defendant's motion to suppress the paper

towel evidence.

    Given this error, we must determine whether the admission

of that evidence requires a new trial.    Because the defendant

properly preserved the issue, we ask whether the admission of
                                                                  24


the evidence was harmless beyond a reasonable doubt.

Commonwealth v. Hoyt, 461 Mass. 143, 154 (2011).   "[T]o

establish harmlessness beyond a reasonable doubt, the

Commonwealth must show that other properly admitted evidence of

guilt is 'overwhelming,' in the sense that it is 'so powerful as

to "nullify any effect"' that the improperly admitted evidence

'might have had' on the fact finder or the findings."

Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010), quoting

Commonwealth v. Tyree, 455 Mass. 676, 704 n.44 (2010).     In

undertaking this analysis we consider a number of factors,

including "the importance of the evidence in the prosecution's

case; the relationship between the evidence and the premise of

the defense; who introduced the issue at trial; the frequency of

the reference; whether the erroneously admitted evidence was

merely cumulative of properly admitted evidence; the

availability or effect of curative instructions; and the weight

or quantum of evidence of guilt."   Hoyt, supra at 155, quoting

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

    We conclude that the paper towel evidence was of marginal

importance to the prosecution's case and the inferences the jury

could draw from the evidence were limited.   At trial, the

Commonwealth called a "fiber analyst" to testify as to his

examination of paper scraps found in the victim's apartment, and

the paper towel taken from the defendant's vehicle.     The analyst
                                                                     25


opined that the scraps and the towel were consistent with being

from the same manufacturer and were likely from the same batch

or run.   The witness was effectively cross-examined by defense

counsel, admitting that he could not tell what company

manufactured the towels and that a "batch or run" could be

70,000 or 80,000 rolls or more, depending on which company

manufactured them and the size and speed of its manufacturing

machinery.

    At the end of the case, all that the prosecutor, in closing

argument, said about the paper towel found in the defendant's

vehicle was that the fact that the paper towel had the

defendant's DNA on it showed that it was in fact recovered from

the defendant's vehicle in 1974, and that the pattern on the

scraps of paper found by the police in the victim's apartment
                                                             21,22
was more like patterns found on paper towels than napkins.

    Moreover, to the extent that the paper towel evidence

permitted an inference that the defendant had been in the

victim's apartment the night of the murder, there was other

powerful evidence from which the jury could draw a similar

inference, including the defendant's palm and fingerprints on


    21
       The paper towel was mentioned in just two paragraphs of
the prosecutor's thirteen-page closing argument.
    22
       Defense counsel had questioned a witness as to whether
the scraps were actually of napkins brought to the victim's
apartment that night by Duhaime.
                                                                    26


the forced door of the victim's apartment and the DNA found

under her fingernails.     We conclude that any prejudice to the

defendant's case caused by the admission of the paper towel

evidence was harmless beyond a reasonable doubt.23

     4.    Denial of motion to stay execution of sentence.   The

defendant lastly claims that the single justice erred in denying

his motion to stay the execution of his sentence.    We review the

denial of the motion for abuse of discretion.    See DiPietro v.

Commonwealth, 369 Mass. 964, 964 (1976).     Such discretion is

governed by two considerations:     the defendant's likelihood of

success on appeal and whether the defendant poses a security

risk.     Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010).

As to the second factor, "[s]ignificant considerations include

the defendant's familial status, roots in the community,

employment, prior criminal record, and general attitude and

demeanor" (citation and quotation omitted).     Commonwealth v.

Charles, 466 Mass. 63, 77 (2013).


     23
       In his closing argument, the prosecutor argued that the
defendant was the perpetrator of the murder principally based on
his fingerprints, the DNA evidence, the observations of Duhaime
on the night of the murder, and the defendant's apparent false
alibi. The prosecutor further argued that the defendant was
guilty of murder in the first degree under all three theories,
including murder occurring during the course of an armed
burglary. The only mention of a possible attempted sexual
assault came at the beginning of his closing, and was based on
the position of the victim's body, "legs spread apart and naked
from the waist down," and not on the paper towel found in the
defendant's vehicle.
                                                                     27


     The latter consideration alone supports denial of the

motion.   It is presumed that a defendant charged with murder in

the first degree is not entitled to bail.     Farley v.

Commonwealth, 433 Mass. 1004, 1004 (2000).    Moreover, where the

defendant was convicted of brutally murdering the victim, and

where he did not submit any evidence of ties to family or the

community, we are not persuaded that he did not pose a security

risk.24   Given this, we conclude the single justice did not abuse

his discretion in denying the defendant's motion.

     5.   Review under G. L. c. 278, § 33E.   After a review of

the entire record, we discern no reason to exercise our powers

to grant a new trial or reduce the degree of guilt.       Although

the defendant's trial was not error free, we conclude that there

is no miscarriage of justice requiring a new trial, and

accordingly, the defendant's conviction is affirmed.

                                    So ordered.




     24
       The defendant argued in his motion to stay execution of
sentence that evidence of his "roots in the community" was
supported by the testimony of defense counsel's legal assistant,
who performed genealogical research of the defendant's family
and found several male relatives living in the area. Because
the defendant made no assertion as to his relationship with any
of his relatives, we cannot conclude he had ties to the
community.
