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SJC-11346

                   COMMONWEALTH   vs.   LESLIE COLE.



       Bristol.       October 9, 2015. - December 18, 2015.

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


Homicide. Evidence, Medical record, Consciousness of guilt,
     Hearsay, Expert opinion. Deoxyribonucleic Acid. Witness,
     Expert. Constitutional Law, Confrontation of witnesses.
     Practice, Criminal, Capital case, Hearsay, Instructions to
     jury, Confrontation of witnesses, Discovery, Argument by
     prosecutor, Required finding.



     Indictments found and returned in the Superior Court
Department on March 3, 2006.

    The cases were tried before Robert J. Kane, J.


     James E. Methe for the defendant.
     Mary O'Neil, Assistant District Attorney, for the
Commonwealth.


    SPINA, J.     A Superior Court jury convicted the defendant,

Leslie M. Cole, of the murder in the first degree of Rudolph

Santos (victim) on theories of deliberate premeditation, extreme

atrocity or cruelty, and felony-murder, in violation of G. L.
                                                                   2


c. 265, § 1.1   On appeal, the defendant contends that (1) the

trial judge erred by admitting in evidence unredacted medical

records purportedly belonging to the defendant, together with

related testimony from a nurse practitioner, and by instructing

the jury on consciousness of guilt; (2) the admission of expert

testimony concerning the statistical significance of

deoxyribonucleic acid (DNA) evidence violated the defendant's

constitutional right to confront witnesses; (3) the trial judge

erred by admitting in evidence the victim's T-shirt,

notwithstanding a purported discovery violation by the

Commonwealth; (4) the prosecutor made improper remarks during

her opening statement and her closing argument; and (5) the

judge erred in denying the defendant's motion for required

findings of not guilty.   The defendant also requests that we

exercise our authority under G. L. c. 278, § 33E, to reduce the

conviction of murder to a lesser degree of guilt or to order a

new trial.   For the reasons detailed below, we affirm the

defendant's convictions and decline to grant relief pursuant to

G. L. c. 278, § 33E.




     1
       The jury also convicted the defendant of the assault of
Christopher Busby by means of a dangerous weapon (knife), in
violation of G. L. c. 265, § 15B (b); armed robbery, in
violation of G. L. c. 265, § 17; and home invasion, in violation
of G. L. c. 265, § 18C. The jury found the defendant not guilty
of assaulting Busby with the intent to murder.
                                                                      3


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

found, reserving further details for our discussion of the

alleged errors.

    Shortly before Christmas in 2005, the defendant and William

Fields, who sold drugs together, discussed the possibility of

robbing an unspecified drug dealer in order to resolve a cash

flow problem.   One day when the two men were visiting the New

Bedford home of Fields's friend, Shannon Almeida, they asked her

if she knew anyone who had a gun.   Almeida responded that she

did, and she introduced them to Vincent Wadlington.     On the

evening of December 24, while at Almeida's house, the defendant,

Fields, and Wadlington discussed plans to commit a robbery.

They then drove to an apartment in Brockton, where Wadlington

retrieved a sawed-off rifle and some ammunition.     The three men

drove back to New Bedford, stopping at another house so the

defendant could get some dark clothes to wear.     At around 10

P.M., the defendant, Fields, and Wadlington returned to

Almeida's home, and, approximately ninety minutes later, they

decided that they were "ready to go and do this."     The three men

traveled in the defendant's motor vehicle to a multifamily home

on Hillman Street, parked nearby, put on gloves and masks,

walked to the house, and approached the back door.     Wadlington

was carrying the rifle.
                                                                     4


    That night, Christopher Busby was at home in that Hillman

Street residence, spending time with his friend, the victim.

The two men sold drugs from Busby's apartment, typically to

people they already knew.    They kept larger quantities of their

supply in the cellar, which was always locked.     The victim had

possession of the key that night.

    Sometime before midnight, Wadlington knocked on the

apartment's door.    In response to Busby's inquiry about who was

there, Wadlington replied that it was "Eddie," but neither Busby

nor the victim recognized the voice.    Busby told "Eddie" to step

near a window so he could see his face.    Wadlington complied

with the request, and he handed the rifle to the defendant.

Busby did not recognize "Eddie," told the man that he would not

sell him any drugs, and watched him walk away from the

apartment.   Several minutes later, Busby started to open the

door so he could look outside.    The defendant, Wadlington, and

Fields kicked the door and rushed into the apartment.

    The defendant fought with Busby.      As Busby tried to defend

himself, he felt someone striking him from behind, and he turned

to see Fields hitting him with a metal pipe.     Wadlington fought

with the victim.    Shortly after the altercation began, Fields

left the apartment, returned to the defendant's vehicle, drove

to a nearby house, knocked on the front door, and asked the man
                                                                    5


who answered to call the police because he had heard gunshots.2

Fields then drove the vehicle back to where the three men

originally had parked it, and he fled the scene on foot.

     Meanwhile, back at the apartment, Busby was stabbed

multiple times with a knife before collapsing and passing out.

When he regained consciousness, he heard men's voices in the

kitchen questioning the victim about the location of the drugs

and demanding the key to the cellar.   Busby quickly grabbed a

Samurai sword that was leaning against a wall in the kitchen,

swung it at the two assailants, and stabbed one of the men in

the leg.   After fighting with someone as he made his way down a

hallway, Busby managed to reach his bedroom, where he fell onto

the bed.   He had difficulty breathing and was bleeding.    Busby

still could hear voices from the kitchen, and he realized that

the victim had surrendered the key to the cellar when he heard

one of the men running down the cellar stairs and back up again,

asking, "Where are the drug[s]?   Where are the drugs, Ru?"

Busby then heard the sound of a gunshot and someone saying,

"It's only a .22 rifle."   The next thing Busby remembered was

being treated by a paramedic.

     2
       William Fields testified that he had not actually heard
gunshots, but that he said he did in the hope that emergency
personnel would respond to the scene more quickly. Fields
testified pursuant to a cooperation agreement by which, in
return for his testimony, the Commonwealth agreed to allow him
to plead guilty to lesser charges, and to receive a more
favorable sentence.
                                                                    6


    Shortly before 1 A.M. on December 25, New Bedford police

Officer Barry Pacheco and Sergeant Francis Rodriques arrived at

the Hillman Street residence.   After entering the apartment,

which was in complete disarray, they observed a man lying on the

floor, showing no signs of life.   They then heard yelling from

another room and discovered Busby lying face down on a bed,

covered in blood, saying that he had been stabbed.    Paramedics

soon arrived and determined that the victim was dead.    Busby,

who had puncture wounds all over his body, was transported to a

hospital and subsequently spent a week in a different hospital

recovering from numerous stab wounds.   State police criminalists

processed the crime scene, including the stairs and walls

leading down to the cellar, and collected evidence.

    Following the events at Busby's apartment, Fields

eventually returned to Almeida's home where he encountered the

defendant, who had a bloody cloth wrapped around his thigh.

When Fields asked the defendant what had happened to his leg,

the defendant replied, "Well, you know, this is what happened in

the house."   The defendant left Almeida's home at around 6 A.M.

on December 25.   That same day, an individual named "Derrick

Williams" was treated in the emergency room of Rhode Island

Hospital (hospital) for a laceration to his thigh.    A few days

later, Fields looked in the trunk of the defendant's car and saw

what appeared to be a Samurai sword, along with the clothes that
                                                                      7


the defendant had worn on the night of the assault.     The two men

drove to the docks located in the south end of New Bedford and

threw the items in the ocean.

    Dr. William Zane, a medical examiner for the Commonwealth,

performed the autopsy on the victim.     He testified that the

victim had a gunshot wound to his right cheek, lacerations to

his left upper eyelid and lower lip, contusions to his left

cheek and forehead, abrasions on his right cheek and jaw, a

gaping cut on the back of his left hand that went to the bone,

cuts to his right wrist and forearm, and an eight-inch deep stab

wound to his left buttock.   Dr. Zane concluded that the victim

died from the gunshot wound to his head, which penetrated his

brain.   He further concluded that a contributing factor in the

victim's death was the stab wound to his buttock, which

penetrated his lower abdominal cavity.

    2.    Admission of medical records, related testimony, and

instruction on consciousness of guilt.    The defendant first

contends that the judge should not have allowed medical records

from the hospital to be admitted in evidence because there was

no foundational showing that the defendant was the same person

who was treated at the hospital.   The defendant objected to the

judge's ruling, so we review any error in the admission of the

medical records under the prejudicial error standard.     See

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
                                                                    8


    General Laws c. 233, § 79, excepts certain hospital records

from the common-law rule against hearsay evidence.    See

Commonwealth v. Francis, 450 Mass. 132, 139 (2007); Bouchie v.

Murray, 376 Mass. 524, 527 (1978).    The statute provides that

"[r]ecords kept by hospitals . . . under [G. L. c. 111, § 70,]

shall be admissible . . . as evidence . . . so far as such

records relate to the treatment and medical history of such

cases."   G. L. c. 233, § 79.   See Mass. G. Evid. § 803(6)(B)

(2015).   Section 79 was enacted to relieve medical personnel

from "the hardship and inconvenience of attending court as

witnesses to facts which ordinarily would be found recorded in

the hospital books."   Commonwealth v. Gogan, 389 Mass. 255, 263

(1983), quoting Leonard v. Boston Elevated Ry., 234 Mass. 480,

482 (1920).   See Francis, supra.    "More importantly, however,

the statute allows admission of the substantive content of

hospital records because of the presumption of reliability which

attaches to statements relating to treatment and medical history

in these records.   This presumption of reliability . . . arises

primarily from the fact that entries in these records are

routinely made by those charged with the responsibility of

making accurate entries and are relied on in the course of

treating patients."    Bouchie, supra at 527-528.   A trial judge

has the discretion to exclude medical records in appropriate

circumstances.   See Doyle v. Dong, 412 Mass. 682, 687 (1992).
                                                                     9


     The medical records at issue here were for a patient named

"Derrick Williams," who was treated in the emergency room of the

hospital on December 25, 2005, for a laceration to his right

thigh.    According to these records, the patient stated that he

had been wrestling the previous evening when he fell to the

floor and onto a knife.    The medical records also specified that

"Derrick Williams" was born on November 15, 1979, and his

mother's name was "Esther."

     At a pretrial hearing, a nurse practitioner employed in the

hospital's emergency department testified that she was working

the 10 A.M. to 6 P.M. shift on December 25, 2005.    She stated

that she treated a dark-skinned male3 for a laceration on one of

his thighs.4   State police Lieutenant Keith Blaney testified at

trial that when he interviewed the defendant on January 11,

2006, he began by asking some biographical information.     The

defendant stated, among other things, that his date of birth was

November 15, 1979, that he lived in Rhode Island, and that his

mother's name was "Esther."    When Blaney asked the defendant

     3
         The defendant is African-American.
     4
       At the pretrial hearing, the nurse also testified that on
March 31, 2006, a State police trooper showed her one photograph
of an individual, and she recognized that individual as the
patient she had treated on December 25, 2005. The judge ruled
that the identification procedure was unnecessarily suggestive
and, therefore, not admissible. The judge indicated that the
nurse could testify at trial regarding what she recalled about
treating this individual, but she was not permitted to give any
identification testimony.
                                                                     10


whether he used any other names, the defendant responded that he

had used "Derrick Williams" in the past, although not on

Christmas Day.    In response to another inquiry from Blaney, the

defendant denied that he had a leg injury but, when he lowered

his pants, Blaney observed a wound to the defendant's right leg,

just above the knee, that was "still puffy and swollen."       The

defendant denied having gone to the hospital, first telling

Blaney that the wound had healed by itself, and then stating

that he had glued it.    When asked how he had sustained the

injury, the defendant gave Blaney several different

explanations, including that he had been wrestling.

     Following this testimony from Lieutenant Blaney, the judge

admitted the medical records, stating that the evidence was

sufficient to permit the jury to infer reasonably that the

defendant was the person who was treated at the hospital on

December 25.5    We agree.   The judge properly determined that an

adequate foundational showing for the admission of the medical

records had been made.

     The defendant next asserts that the judge erred in failing

to redact statements in the medical records that indicated how

     5
       The judge subsequently instructed the jury that they were
the ones who had to decide, based on the evidence and the
reasonable inferences that could be drawn therefrom, whether the
defendant was the patient to whom the medical records pertained.
The judge cautioned the jury that they should avoid guesswork,
and he also instructed that an individual's use of a different
name is not illegal.
                                                                   11


the person who was treated at the hospital was injured.     In the

defendant's view, these statements were statements of liability

and did not relate to the patient's treatment and medical

history.   In addition, he continues, even if the statements did

relate to the patient's medical history, they could not be

deemed reliable where these particular medical records were not

sufficiently linked to the defendant, and, consequently, the

individual who made the statements was unknown.    We disagree

with the defendant's arguments.

    The admissibility of medical records relating to "treatment

and medical history" is limited by the proviso that "nothing

therein contained shall be admissible as evidence which has

reference to the question of liability."   G. L. c. 233, § 79.

We have treated this proviso's reference to "liability" as

encompassing criminal culpability.   See Commonwealth v. Dargon,

457 Mass. 387, 394 (2010); Commonwealth v. Dube, 413 Mass. 570,

573 (1992).    We also have said that "a record which relates

directly and mainly to the treatment and medical history of the

patient, should be admitted, even though incidentally the facts

recorded may have some bearing on the question of liability."

Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998), quoting

Commonwealth v. Concepcion, 362 Mass. 653, 656 (1972).    See

Dube, supra.
                                                                  12


     Here, the statements in the medical records that, the

previous evening, the patient had fallen to the floor and onto a

knife while wrestling were relevant to his treatment by medical

personnel.   The amount of time that had elapsed since the

patient had sustained the wound, the exact nature of the wound,

and the circumstances of its occurrence, which could give rise

to concerns about infection, were all important factors that

would have a direct bearing on his treatment at the hospital.

Given that there was ample evidence for the jury to infer that

the medical records were those of the defendant, the statements

could be presumed to be reliable.   The judge properly determined

that there was no need to redact the challenged portion of the

medical records.   We conclude that the judge did not abuse his

discretion in admitting the medical records in evidence.

     Following the admission of the medical records, the nurse

subsequently testified at trial that at around 10 A.M. on

December 25, 2005,6 she treated a thin, dark-skinned man for a

laceration to his thigh, and that this patient had told her that

he was injured the previous evening when, as he was wrestling, a

knife fell off a counter and hit him in the leg.7   The nurse also


     6
       Although the prosecutor asked the nurse about her work on
December 26, 2005, the medical records clearly indicate that she
treated a patient with a leg laceration on December 25, 2005.
     7
       The judge again instructed the jury that they were the
ones who had to decide, based on the evidence and the reasonable
                                                                   13


identified her signature as the one appearing on the medical

records.   The defendant contends that because there was

insufficient evidence that he was this patient, the testimony of

the nurse constituted hearsay and should not have been admitted.

We disagree.   As already discussed, there was sufficient

evidence for the jury to reasonably infer that the defendant was

the patient who was treated by the nurse.   That being the case,

the testimony of the nurse was properly admitted because, as the

defendant recognizes, it was not hearsay in these circumstances.

See Commonwealth v. Marshall, 434 Mass. 358, 365 (2001)

(extrajudicial statements by party opponent not hearsay); Mass.

G. Evid. § 801(d)(2)(A) (2015).   We add that the testimony of

the nurse was relevant to when the defendant had sustained his

injury, how the injury purportedly had occurred, and where on

his body the laceration was located.   Accordingly, the judge did

not err in admitting the nurse's testimony in evidence.

    Finally, the defendant contends that the judge erred in

instructing the jury on consciousness of guilt because there was

insufficient evidence to support such a charge where, in the

defendant's view, the medical records and the testimony of the

nurse should not have been admitted.   During the charge

conference, the Commonwealth requested a consciousness of guilt



inferences that could be drawn therefrom, whether the patient
about whom the nurse testified was the defendant.
                                                                  14


instruction referencing use of a false name and false

statements.   The defendant objected, pointing out that the judge

already had given an instruction about the use of a false name,

see note 5, supra, and arguing that the jury could draw their

own inferences without any further instruction on consciousness

of guilt.   The judge disagreed, stating to counsel that if the

jury inferred that the patient who was treated at the hospital

was the defendant, then they could consider whether the

defendant had used a false name for the purpose of concealing

his identity.   The judge later instructed the jury on

consciousness of guilt in conformity with Commonwealth v. Toney,

385 Mass. 575, 585 (1982).   As part of his instruction, the

judge cautioned the jury that there may be numerous reasons why

an innocent person might use a false name or make false

statements, and that such conduct did not necessarily reflect

feelings of guilt.

    Because the consciousness of guilt instruction was given

over the defendant's objection, we review for prejudicial error.

See Flebotte, 417 Mass. at 353.   Such an instruction is

appropriate when the jury may draw an inference of guilt "'from

evidence of flight, concealment, or similar acts,' such as false

statements to the police, destruction or concealment of

evidence, or bribing or threatening a witness."   Commonwealth v.

Stuckich, 450 Mass. 449, 453 (2008), quoting Toney, 385 Mass. at
                                                                    15


584.    See Commonwealth v. Jackson, 419 Mass. 716, 730-731 (1995)

(misrepresentation of identity may reflect consciousness of

guilt).    "The giving of this instruction presupposes that there

is evidence of consciousness of guilt, communicates to the jury

the judge's belief that there is such evidence, and directs the

jury to decide whether to credit this evidence, and, if so, how

to factor it into their deliberations."    Commonwealth v. Vick,

454 Mass. 418, 424 (2009).    "It is within the trial judge's

discretion whether to instruct the jury regarding the evaluation

of evidence pertaining to consciousness of guilt."    Commonwealth

v. Morris, 465 Mass. 733, 738 (2013).

       We conclude that the judge acted within his discretion in

deciding to give an instruction on consciousness of guilt over

the defendant's objection.    Such instruction was not based on

inadmissible evidence.    To the contrary, it was based on

properly admitted evidence -- the medical records and the

testimony of the nurse -- from which the jury reasonably could

infer that "Derrick Williams," who was treated for a leg

laceration at the hospital on December 25, 2005, was, in fact,

the defendant.    If the jury found that the Commonwealth had

proved that the defendant had used a false name and made false

statements, then they properly could consider whether such

actions were indicative of consciousness of guilt.
                                                                     16


    3.   Admission of DNA statistical probabilities.     Amy Joy, a

chemist at the State police crime laboratory, performed DNA

analyses on several unknown samples that were recovered from

different pieces of evidence.    She targeted sixteen regions on

the DNA sequence, and then employed a four-step testing process

to generate individual profiles.     After she had completed her

testing, Joy compared each unknown profile to the eleven known

profiles of various individuals that had been generated by other

chemists at the crime laboratory.     Joy testified on direct

examination that, when making DNA comparisons, she generated

statistics to give more meaning to each item of evidence.

    After performing the four-step analysis on a swab of the

tip of a black-handled knife, Joy determined that the DNA

profile was mixed, meaning it contained the DNA of more than one

person, and that the major profile was consistent with that of

the defendant.   She testified that the probability of a randomly

selected, unrelated individual having a DNA profile that matched

the major profile on this item was approximately one in 163.8

trillion of the African-American population.     Joy also analyzed

a swab taken from a reddish-brown stain on a T-shirt found

underneath the victim's body at the crime scene.     Again, the DNA

profile from the swab was mixed.     Joy testified that the major

profile matched the victim, and the minor profile was consistent

with that of the defendant.     With respect to this minor profile,
                                                                    17


Joy stated that the probability of a randomly selected,

unrelated individual having contributed DNA to this mixture was

approximately one in 5.3 million of the African-American

population.   On cross-examination, Joy testified that once she

made her comparisons between the unknown and known DNA profiles,

she used a computer program called "Pop Stat" (Pop Stat) to

calculate the statistical probabilities.   She further stated

that she did not create the computer program.    Rather, it had

been supplied to the State police by the Federal Bureau of

Investigation.

    The defendant contends on appeal that Joy's testimony

concerning the probability statistics constituted hearsay, and

that the admission of this testimony, over his objections,

violated his right to confrontation under the Sixth and

Fourteenth Amendments to the United States Constitution and art.

12 of the Massachusetts Declaration of Rights.      We review any

error in the admission of this evidence under the prejudicial

error standard.   See Flebotte, 417 Mass. at 353.

    In a criminal trial, we will "not permit the admission of

test results showing a DNA match (a positive result) without

telling the jury anything about the likelihood of that match

occurring."   Commonwealth v. Curnin, 409 Mass. 218, 222 n.7

(1991).   See Commonwealth v. Mattei, 455 Mass. 840, 851 n.25

(2010) (DNA test results inadmissible without accompanying
                                                                    18


statistical interpretation); Commonwealth v. Daggett, 416 Mass.

347, 357 (1993) (Abrams, J., concurring) ("expert testimony

concerning a DNA match must be accompanied by some background

information indicating the probability that the match in

question might have occurred by chance").   The rationale for

such an approach is that evidence of a DNA match has little or

no value without expert testimony explaining the significance of

the match, namely, "the mathematical probability that another

person has this same DNA profile."    Commonwealth v. Tassone, 468

Mass. 391, 402-403 n.2 (2014).   See Commonwealth v. Rosier, 425

Mass. 807, 813 (1997); Commonwealth v. Lanigan, 419 Mass. 15, 20

(1994).

    As an initial matter, we conclude that Joy's testimony

concerning the probability statistics was not hearsay.   The

function of Pop Stat is to enable DNA analysts to calculate

statistical probabilities using population databases.    In the

absence of computer technology, DNA experts would be performing

statistical analyses by hand.    "We permit experts to base their

testimony on calculations performed by hand, [and] [t]here is no

reason to prevent them from performing the same calculations,

with far greater rapidity and accuracy, on a computer" (citation

omitted).   Commercial Union Ins. Co. v. Boston Edison Co., 412

Mass. 545, 549 (1992) (concluding that results of computer

program used to calculate building steam usage were admissible).
                                                                  19


See Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 326-327

(2009) (testimony regarding distance between two points that was

based on use of computerized map not hearsay).   See also

Commonwealth v. Sheldon, 423 Mass. 373, 377 (1996) (blood test

results presented through person who conducted test or attending

physician admissible).

    When Joy testified that she used Pop Stat to calculate

statistical probabilities for major and minor DNA profiles, the

relevant question was not whether her testimony was hearsay, but

whether the foundation was sufficient for the introduction of

the observed result.   See Whitlock, supra at 327.   The defendant

seems to suggest that because Joy did not create Pop Stat and

was not familiar with how the probability statistics were

derived, her testimony lacked an adequate scientific foundation.

To the extent that the defendant wanted to challenge the

scientific reliability of the Pop Stat program, he was required

to "file an appropriate pretrial motion stating the grounds for

the objections and request a hearing in accordance with the

principles set forth in Canavan's Case, 432 Mass. 304, 309-312

(2000), and Commonwealth v. Lanigan, 419 Mass. 15, 24-27

(1994)."   Commonwealth v. Sparks, 433 Mass. 654, 659 (2001).

See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-595

(1993).    See also Commonwealth v. Gaynor, 443 Mass. 245, 263,

268-270 (2005) (judge properly ruled on pretrial motion that
                                                                  20


database used by Cellmark Diagnostics Laboratories to make DNA

profile frequency calculations was adequate and common within

field); Galloway v. State, 122 So. 3d 614, 661 (Miss. 2013),

cert. denied, 134 S. Ct. 2661 (2014) (expert witness testified

that Pop Stat generally accepted and used by crime laboratories

having access to Combined DNA Indexing System database).

Because the defendant failed to request a Daubert-Lanigan

hearing to establish the reliability of the methodology

underlying Joy's testimony, we do not consider the matter

further.   See Commonwealth v. Fritz, 472 Mass. 341, 349 (2015)

(failure to request Daubert-Lanigan hearing to establish

reliability of methodology underlying expert firearms

identification testimony constituted waiver of issue).    See also

Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010), cert.

denied, 131 S. Ct. 2441 (2011) (where defendant fails to file

pretrial motion to challenge absence of foundational

requirements for expert testimony, such testimony may be

admitted in evidence).   Instead, we turn our attention to the

defendant's argument that the probability statistics generated

by the Pop Stat program violated the defendant's confrontation

rights.

    The Sixth Amendment, which is applicable to the States

through the Fourteenth Amendment, guarantees that "[i]n all

criminal prosecutions, the accused shall enjoy the right . . .
                                                                     21


to be confronted with the witnesses against him . . . ."       See

Pointer v. Texas, 380 U.S. 400, 403 (1965).     The right of

confrontation also is protected by art. 12, which provides that

in a criminal trial "every subject shall have a right to . . .

meet the witnesses against him face to face."    See Commonwealth

v. Arrington, 455 Mass. 437, 440 n.4 (2009).    The State

Constitution has been interpreted to provide a criminal

defendant more protection than the Sixth Amendment in certain

respects, see Commonwealth v. Amirault, 424 Mass. 618, 628-632

(1997), but when the issue involves the relationship between the

hearsay rule and its exceptions, on the one hand, and the right

to confrontation, on the other hand, "the protection provided by

art. 12 is coextensive with the guarantees of the Sixth

Amendment."   Commonwealth v. DeOliveira, 447 Mass. 56, 57 n.1

(2006).   But see Commonwealth v. Tassone, 468 Mass. at 404 n.3

(questioning whether protections remain coextensive in wake of

fractured plurality decision in Williams v. Illinois, 132 S. Ct.

2221 [2012]).

    "The confrontation clause bars the admission of testimonial

out-of-court statements by a declarant who does not appear at

trial unless the declarant is unavailable to testify and the

defendant had an earlier opportunity to cross-examine him."

Commonwealth v. Simon, 456 Mass. 280, 296, cert. denied, 562

U.S. 874 (2010).   See Crawford v. Washington, 541 U.S. 36, 53-54
                                                                  22


(2004).   Whether a particular statement is "testimonial" lies at

the core of this analysis.    See Davis v. Washington, 547 U.S.

813, 823-824 (2006).   In deciding whether an out-of-court

statement is testimonial, "[f]irst, we determine whether the

statement is testimonial per se," that is, whether it was "made

in a formal or solemnized form (such as a deposition, affidavit,

confession, or prior testimony) or in response to law

enforcement interrogation."    Simon, supra at 297, citing

Commonwealth v. Gonsalves, 445 Mass. 1, 13 (2005), cert. denied,

548 U.S. 926 (2006).   "[I]f a statement is not testimonial per

se, we consider whether the statement is nonetheless testimonial

in fact."   Simon, supra, citing Gonsalves, supra at 12.     "A

statement is testimonial in fact if 'a reasonable person in the

declarant's position would anticipate the statement's being used

against the accused in investigating and prosecuting a crime'"

(emphasis added).   Simon, supra, quoting Gonsalves, supra at 12-

13.

      We conclude that the probability statistics are not

testimonial.   With respect to the first part of the inquiry,

they are not statements made in a "formal or solemnized form" or

"in response to law enforcement interrogation."    Simon, 456

Mass. at 297, citing Gonsalves, 445 Mass. at 13.    As to the

second part of the inquiry, the creator of Pop Stat would not

anticipate that the probability statistics would be used to
                                                                     23


prosecute this particular defendant.     See id.   See also United

States v. Pritchard, 993 F. Supp. 2d 1203, 1213 (C.D. Cal. 2014)

(Pop Stat software used by DNA expert not testimonial, and

statistical testimony given in reliance on such software did not

violate confrontation clause).    Statistical analyses can be

performed for many reasons with respect to any number of

individuals, wholly unrelated to the defendant in this case.

Significantly, as we have discussed, when expert testimony is

presented regarding a DNA match, it must include explanatory

probability statistics so the jury can understand the

significance of the match.    See Lanigan, 419 Mass. at 20;

Curnin, 409 Mass. at 222 n.7.    Concluding that testimony

concerning probability statistics violates a defendant's

confrontation rights would be inconsistent with our well-

established case law on the requirements for the admission of

DNA evidence.    Moreover, the defendant here was afforded, and

took full advantage of, the opportunity to cross-examine Joy on

the reliability of the probability statistics about which she

testified.    The defendant cannot claim a violation of his

confrontation rights where he had the opportunity to expose

flaws in the basis of Joy's testimony.    See Barbosa, 457 Mass.

at 785-786.   Accordingly, the admission of the probability

statistics did not violate the defendant's confrontation rights.
                                                                   24


    4.   Admission of T-shirt.   Maureen Hartnett, a chemist at

the State police crime laboratory when the murder in this case

occurred, testified that she had arrived at the crime scene at

around 3 A.M., spent several hours processing the scene,

collected a T-shirt from underneath the body of the victim, and

brought it back to the laboratory for analysis.    When the

Commonwealth moved to admit the T-shirt in evidence, defense

counsel objected, asserting that he had never received

Hartnett's photographs of the T-shirt or a report indicating

that she had placed it under a so-called "hood" to dry it out.

The judge overruled the defendant's objection and admitted the

T-shirt in evidence.   However, the judge stated that Hartnett

would remain in the court room during the lunch recess so that

she could show and explain the photographs and any reports to

defense counsel.   The judge also stated that defense counsel

would have the opportunity to recall Hartnett the following day

if he did not feel that he had had sufficient time for cross-

examination.   Following the lunch recess and his cross-

examination of Hartnett, defense counsel stated:   "I did have

the opportunity to meet with Ms. Hartnett during lunch and she

showed me her photographs and I went through her notes.    And I

was satisfied with the documents that were provided."

    The defendant contends on appeal that, due to the

Commonwealth's discovery violation, the judge should not have
                                                                  25


admitted the T-shirt in evidence.    We review any error in the

admission of this evidence under the prejudicial error standard.

See Flebotte, 417 Mass. at 353.

    Pursuant to Mass. R. Crim. P. 14 (a) (1) (A) (vii), as

amended, 444 Mass. 1501 (2005), the Commonwealth is obligated to

"permit the defense to discover, inspect and copy . . .

[m]aterial and relevant police reports, photographs, tangible

objects, all intended exhibits, reports of physical examinations

of any person or of scientific tests or experiments, and

statements of persons the party intends to call as witnesses,"

provided that such items are relevant to the case and are within

the control of the prosecutor.    When a party fails to comply

with its discovery obligations, Mass. R. Crim. P. 14 (c) (2), as

amended, 442 Mass. 1518 (2004), confers on a judge the

discretion to exclude evidence based on the party's

noncompliance.   We are mindful of the fact that discovery

sanctions "are remedial in nature" and "should be tailored

appropriately to cure the prejudice resulting from a party's

noncompliance and to ensure a fair trial."    Commonwealth v.

Carney, 458 Mass. 418, 427 (2010).

    Here, the judge gave defense counsel the opportunity to

review Hartnett's photographs and report concerning the T-shirt.

Defense counsel indicated that he was satisfied with the judge's

approach.   We conclude that the judge acted within his
                                                                   26


discretion, and that there has been no showing of prejudicial

error.

     5.    Prosecutor's opening statement and closing argument.

The defendant maintains that several of the prosecutor's remarks

during her opening statement and her closing argument were

improper, thus violating his due process rights and denying him

a fair trial.   The defendant first contends that the

prosecutor's references to Christmas in her opening statement

were an improper appeal to the jury's emotions.8    He acknowledges

that he did not object to the remarks, but nonetheless argues

that they created a substantial likelihood of a miscarriage of

justice.   See Commonwealth v. Wright, 411 Mass. 678, 682 (1992).

We disagree.

     While it is improper for the prosecutor to play on the

jury's sympathy or emotions, see Commonwealth v. Kozec, 399

Mass. 514, 516-517 & n.5 (1987), "the prosecutor is entitled to

set the scene."     Commonwealth v. Santiago, 425 Mass. 491, 497

(1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied, 525

U.S. 1003 (1998).    Given that the murder took place in the

     8
       At the beginning of her opening statement, the prosecutor
made the following remarks: "Christmastime, a time that we
gather with our families and friends to plan how we are going to
spend our holidays. Christmas time 2005, three men in New
Bedford were planning. They were planning a home invasion and
an armed robbery." Then, at the end of her opening statement,
the prosecutor said, "There was no peace on earth or good will
towards men that Christmas day at [the apartment on] Hillman
Street."
                                                                   27


minutes between Christmas Eve and Christmas Day, the

prosecutor's references to Christmas in her opening statement

merely set the scene with rhetorical flourish.    See Commonwealth

v. Mejia, 463 Mass. 243, 255 (2012) (prosecutor's rhetorical

flourish not ground for reversal).   Although her unnecessary

remarks about "peace on earth" and "good will towards men" would

have been better left unsaid, their impact was not such that it

created a substantial likelihood of a miscarriage of justice.

See, e.g., Commonwealth v. Gentile, 437 Mass. 569, 580 (2002).

We ascribe "a certain measure of sophistication" to juries, and

a bare modicum of sophistication was all that was needed to

discount the prosecutor's yuletide comments.     Commonwealth v.

Wilson, 427 Mass. 336, 350 (1998).

     The defendant next argues that the prosecutor's statements

in her closing argument regarding the location of DNA evidence

were a distortion of the evidence,9 and that another statement by


     9
       During her closing argument, the prosecutor first stated,
"And you heard that, I would suggest to you, the DNA of Vincent
Waddington [sic] was on those stairs and that the DNA of Vincent
Waddington [sic] is in the Chevy Lumina. . . . We also have, I
would suggest to you, this defendant's DNA found at the scene."
Shortly thereafter, the prosecutor stated, "[The dog] didn't
contaminate the scene, he didn't cause this defendant's DNA to
show up. [The defendant's] DNA is there because he was there."
The prosecutor later stated, "I would suggest to you that Mr.
Fields tells you that on New Year's Eve he's at, he sees this
defendant, 81 Mill Street, I believe, and he's got that same
Chevy Lumina, the get-away car, the one that has Vincent
Wadlington's DNA in it, even though this defendant says he
doesn't know him."
                                                                   28


the prosecutor improperly equated a guilty verdict with

justice.10   Because defense counsel objected to these statements,

we review for prejudicial error.    See Flebotte, 417 Mass. at

353.    Remarks made during closing arguments are considered in

the context of the whole argument, the evidence admitted at

trial, and the judge's instructions to the jury.    See

Commonwealth v. O'Connell, 432 Mass. 657, 659 (2000), quoting

Commonwealth v. Christian, 430 Mass. 552, 564 (2000).

       "A prosecutor must limit comment in closing statement to

the evidence and fair inferences that can be drawn from the

evidence."    Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).

See Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992) ("A

prosecutor may, . . . in closing argument, analyze the evidence

and suggest what reasonable inferences the jury should draw from

that evidence").    Contrary to the defendant's assertions, the

prosecutor's statements concerning the DNA evidence were neither

a distortion of Joy's expert testimony nor statements of

personal belief.    Rather, they reflected reasonable inferences

that could be drawn from Joy's testimony concerning the results

of her DNA analyses and the related statistical probabilities.

They also encompassed a proper response to defense counsel's

       10
       At the end of her closing argument, the prosecutor
stated, "And after, ladies and gentlemen, you consider all the
evidence, it is the Commonwealth's belief you will come to one
true and just verdict and that this defendant is guilty of all
charges."
                                                                   29


argument that the DNA samples could have been contaminated.       See

Commonwealth v. Miranda, 458 Mass. 100, 116 (2010), cert.

denied, 132 S. Ct. 548 (2011).    Similarly, the prosecutor's

statement regarding "one true and just verdict" amounted to a

fair comment on the strength of the Commonwealth's case and

constituted appropriate advocacy.   See Kozec, 399 Mass. at 516

(prosecutor allowed to make forceful arguments for conviction

based on evidence); Commonwealth v. Johnson, 374 Mass. 453, 459

(1978) (prosecutor expected to argue for decision in favor of

Commonwealth).   We conclude that there was no error in the

prosecutor's closing argument.

    6.    Motion for required findings of not guilty.   At the

close of the Commonwealth's case, defense counsel moved for

required findings of not guilty as to all of the charges, which

the judge denied.    Defense counsel informed the judge that he

did not intend to introduce any evidence, and he stated that he

again would move for required findings of not guilty after he

rested his case.    The judge responded, "I'll preserve it."

    The defendant contends on appeal that the evidence was not

sufficient to convict him of any crime, and, therefore, the

judge erred in denying his motion for required findings of not

guilty.   He asserts that because Fields, the only witness who

placed the defendant at Busby's apartment, testified pursuant to

a cooperation agreement, Fields had every incentive to minimize
                                                                       30


his own involvement in criminal activity.     The defendant argues

that the only evidence that directly linked him to any crime was

questionable DNA evidence.   He points out that Joy's testimony

that his DNA was consistent with the major profile found on a

knife at the scene was inconsistent with Busby's account of

having stabbed one of the intruders in the leg with a sword.          In

the defendant's view, his motion should have been allowed.       We

disagree.

    When reviewing the denial of a motion for a required

finding of not guilty, we consider "whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt."     Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 318-319 (1979).     The inferences drawn by

the jury from the evidence "need only be reasonable and possible

and need not be necessary or inescapable."     Commonwealth v.

Longo, 402 Mass. 482, 487 (1988), quoting Commonwealth v.

Casale, 381 Mass. 167, 173 (1980).   Moreover, evidence of a

defendant's guilt may be primarily or entirely circumstantial.

See Corson v. Commonwealth, 428 Mass. 193, 197 (1998);

Commonwealth v. Donovan, 395 Mass. 20, 25 (1985).    "If, from the

evidence, conflicting inferences are possible, it is for the

jury to determine where the truth lies, for the weight and
                                                                     31


credibility of the evidence is wholly within their province."

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.

215 (2007).   See Commonwealth v. Merry, 453 Mass. 653, 662

(2009) (existence of contradictory evidence not sufficient basis

for granting motion for required finding of not guilty).

    Here, the defendant has marshaled the evidence, or the

purported lack thereof, in the light most favorable to himself.

This is not the proper lens through which to view the evidence.

The Commonwealth presented testimony from Fields that the

defendant was actively involved in the planning and execution of

the armed robbery and home invasion that resulted in the

victim's murder and Busby's severe injuries.    The Commonwealth

also presented evidence showing that a man using the same alias

that the defendant had used in the past, having the same date of

birth as the defendant, and having a mother with the same name

as the defendant's mother, was treated at the hospital on

December 25, 2005, for a leg injury akin to the one that Busby

had described inflicting on one of the intruders.     In addition,

the Commonwealth presented testimony suggesting that DNA

evidence recovered from a knife and from the victim's T-shirt

was consistent with that of the defendant.     The evidence and the

reasonable inferences that could be drawn therefrom were

sufficient to warrant findings that the defendant was guilty of

the crimes alleged in the indictments.   The judge properly
                                                                  32


denied the defendant's motion for required findings of not

guilty and left the assessment of the weight and credibility of

the evidence for the jury.

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

reviewed the entire record and the briefs on appeal and see no

reason to order a new trial or reduce the degree of guilt.

                                   Judgments affirmed.
