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SJC-11812

              COMMONWEALTH   vs.    FAUSTINO DIAZ, JR.



      Hampden.     September 8, 2017. - December 8, 2017.

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


Homicide. Practice, Criminal, Argument by prosecutor, Capital
     case. Evidence, Chain of custody.



     Indictment found and returned in the Superior Court
Department on February 15, 2013.

    The case was tried before Constance M. Sweeney, J.


     Andrew S. Crouch for the defendant.
     Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.


    GAZIANO, J.   In January, 1991, the victim was found lying

across her bed, with her face covered in blood, at a housing

complex for the elderly in Springfield.     She had been sexually

assaulted and severely beaten.     An autopsy determined that she

had suffered numerous broken bones in her face, sternum, and

ribs, and that she died as a result of blunt force trauma.
                                                                   2


Police interviewed individuals who knew the victim and also

employees who worked at the complex, including maintenance,

nursing, and cleaning staff.    The defendant, who was a part-time

maintenance worker there, was one of those interviewed.    No

arrests were made, and no suspect was identified.

     In 2012, Springfield police reopened the investigation.

They sought to interview men, including the defendant, who had

had access to the housing complex and to collect

deoxyribonucleic acid (DNA) samples from them.     Investigators

visited the defendant at his place of employment, and he

consented to the taking of a DNA sample.    Approximately one

month later, test results indicated that the defendant's DNA

matched the DNA profile from sperm found in the victim's body.

The defendant was arrested and indicted on charges of murder in

the first degree and aggravated rape.1   At trial, the

Commonwealth proceeded on theories of deliberate premeditation,

extreme atrocity or cruelty, and felony-murder with aggravated

rape as the predicate felony.   A Superior Court jury found the

defendant guilty of murder in the first degree on all three

theories.

     On appeal, the defendant argues that the prosecutor


     1
       Approximately one week before trial, the trial judge
dismissed the indictment charging aggravated rape as time
barred. See Commonwealth v. Morin, 478 Mass.415, 430-431
(2017).
                                                                      3


presented arguments and asked the jury to draw inferences from

facts that had been excluded from their consideration; made

multiple misstatements of fact in her closing argument;

suggested that she had personal knowledge of the case beyond the

evidence that had been presented to the jury; argued in a manner

designed to appeal to the jury's emotions and inflame the jury;

and propounded medical theories based on facts that were not in

evidence and were, at best, entirely speculative.     The defendant

contends that, as a result, a new trial is required.      In

addition, the defendant maintains that his trial counsel was

ineffective for failing to object to the improper statements in

the prosecutor's closing.    The defendant also asks us to use our

extraordinary power under G. L. c. 278, § 33E, to reduce the

verdict.    For the reasons that follow, we affirm the conviction

and decline to exercise our authority to grant relief under

G. L. c. 278, § 33E.

    1.     Facts.   We recite the facts the jury could have found,

reserving some facts for later discussion of particular issues.

    a.     Discovery of the victim's body.   On Sunday,

January 20, 1991, the victim's daughter-in-law went to the

victim's apartment because the victim unexpectedly had not

attended church services.    The daughter-in-law entered the

apartment and called for the victim, but received no reply.

When she inserted her key in the front door lock, she noticed
                                                                     4


that the door felt unlocked.    After looking through the living

room, dining room, and kitchen, she also noticed that the back

door was ajar, being held open by the deadbolt that was touching

the doorjamb.

    In the bathroom, she found the victim's purse, wet, in the

sink, and a towel in the toilet.   Finally, she found the victim

dead in the bedroom.   The victim was lying face up with her head

at the foot of the bed; her face was covered in blood, and her

head was in a pool of blood on a pillow.    The victim's nightgown

had been pushed up above her waist; her lower body was naked and

her blood-stained underwear was on the floor near the bed.

    Crime scene investigators later found blood on the bathroom

wall, and blood spatters on the wall, dresser, and curtains in

the bedroom.    They also found evidence of blood in the drains in

the kitchen and bathroom sinks, and copious amounts of blood on

the victim's face and hands and on the bedding.

    An autopsy showed that the victim died of blunt trauma from

multiple injuries to her head and chest.   Her nose was

dislocated and broken, and seven other bones in her face were

broken.   There was bleeding from a head injury under her scalp,

as well as injuries to her neck muscles that were not evident

externally; part of her larynx had been crushed, and there was

blood in her mouth and lungs.   She also had four broken ribs and

a broken sternum.   Her ribs had been broken by blunt force
                                                                    5


trauma.   There were hemorrhages in her eyes that were consistent

with strangulation.

     In addition, there was a tear in her vaginal wall caused by

blunt force and bleeding in her anal cavity.   The medical

examiner2 took samples from a vaginal swab, an anorectal swab,

and a perianal swab for an evidence collection kit.

     b.   Initial investigation.   Police found no sign of forced

entry into the apartment, and officers conducted the

investigation on the theory that either the victim knew her

assailant or the assailant had had a key.    They interviewed

people who had known the victim and employees at the apartment

complex and assisted living center.3   The defendant was on the

list of employees to be interviewed because he was a part-time

maintenance worker at the complex and had specific duties in the

victim's building.

     On January 21, 1991, officers went to the defendant's house

     2
       Due to his medical condition, the medical examiner who
conducted the autopsy did not testify at trial. An officer who
attended the autopsy testified as to his observations, and the
Commonwealth's chief medical examiner testified based on an
examination of the autopsy report and photographs taken during
the autopsy.
     3
       The four separate apartment buildings in the complex were
connected by a shared common basement. The kitchen door of the
victim's apartment opened into a hallway, which led to another
apartment, the basement, and the back door of the building.
Some members of the security staff, as well as the maintenance
supervisor, had been issued master keys to the building and the
apartments. The nursing staff had access to keys that were kept
in a locked box in their offices.
                                                                    6


and asked him if he would come with them to the police station

to assist with their investigation of a death of one of the

residents at the apartment complex for the elderly.   The

defendant agreed to accompany them to the police station and

speak with the officers; he was driven there in a police

cruiser.   When the officers informed the defendant of the

victim's death, without having told him the circumstances of

that death, the defendant broke down and cried for five minutes.

The defendant said that he did not have a master key to the

apartment units.   The defendant was not a suspect at the time he

gave his statement.

     A chemist from the State police crime laboratory (crime

lab) examined the items from the evidence collection kit and

found sperm cells on the vaginal swab, the vaginal smear, the

anorectal swab, and the anorectal smear.   He did not conduct DNA

testing on any of this evidence.   In 1991, the crime lab did not

conduct any form of DNA testing; at that time, such testing was

not commonly conducted in State police laboratories nationwide.4

     The crime lab began DNA testing in 2001.   In 2002, a State

police analyst performed DNA testing on the anorectal swab and


     4
       In 1991, restriction fragment length polymorphism (RFLP)
testing, an early method of DNA testing, was performed by the
Federal Bureau of Investigations and some private laboratories.
This method of DNA testing required a large sample to create a
genetic profile, and required a lengthy period of testing in
order to obtain the test results.
                                                                    7


developed a DNA profile for the sperm fraction of the sample

found on that swab.5

     c.   Reopened investigation.   In 2012, the office of the

Hampden County district attorney reopened a number of unsolved

homicides, including the victim's case.   Detectives reviewed the

case file and began the renewed investigation by interviewing

men who had worked at the victim's apartment complex or who

otherwise had been acquainted with her.   During the summer and

fall of that year, detectives interviewed between eight to

twelve men, and obtained DNA samples from them.    Because there

was no probable cause to seek a warrant to obtain the samples,

the officers relied on the men's voluntary agreement to provide

a sample.

     On November 27, 2012, police spoke with the defendant at

his workplace.   The interview was conducted in an employee break

room where the defendant suggested that they talk.     The

defendant and the officers sat at one of the tables.    The

defendant said that he remembered the victim, he remembered that

she had been killed, and he had worked at the housing complex

for the elderly at that time.

     5
       At trial, the analyst described how a swab could contain
two DNA profiles: a sperm fraction and a nonsperm fraction. A
nonsperm fraction is present where a swab picks up the victim's
skin cells, which contain DNA. The analyst used differential
extraction, a process that relies on the different chemical
properties of sperm cells and skin cells, to isolate the DNA
from the sperm fraction.
                                                                    8


     The officers requested that the defendant provide a DNA

sample, and presented him with a consent form stating that he

agreed voluntarily to provide a sample through a buccal swab,

notwithstanding the absence of a court order requiring a sample.

Officers told him that they were collecting samples from former

employees for comparison purposes.   The officers placed the form

on the table where the defendant could see it, and then read it

aloud to him.6   Because the defendant was not then a suspect and

the interview was voluntary, the defendant was not provided

Miranda warnings and the officers did not discuss a right to

consult with counsel.   After listening to one of the detectives

read the form, the defendant consented to providing the DNA

sample and signed the waiver form.   Detectives obtained a buccal

swab and left the defendant's workplace shortly thereafter.7    The

sample was delivered to the crime lab for analysis.

     Analysts at the crime lab conducted DNA testing on samples

obtained from the defendant and five other men.   The defendant's


     6
       An officer testified that the defendant had a heavy
accent, but that he was able to understand what the defendant
said. The defendant also appeared to understand the officers.
     7
       The defendant moved to suppress the DNA evidence obtained
from the buccal swab taken at his workplace. After a hearing,
the judge denied the motion, finding that the employee break
room was not a coercive setting, in that the door to the room
had been open and employees were coming into the room and
leaving it during the interview. See Commonwealth v. Groome,
435 Mass. 201, 212 (2001). The judge found that the defendant
voluntarily provided the police with a DNA sample.
                                                                    9


DNA matched the DNA profile of sperm found on both the perianal

swab and the anorectal swab.   Statistical analysis, introduced

at trial by a different State police chemist, established that

the likelihood a DNA profile would match a randomly selected

individual was 1 in 2.064 quadrillion in the Hispanic

population, 1 in 1.531 quadrillion in the Caucasian population,

1 in 87.11 quadrillion in the African American population, and

1 in 61.58 quadrillion in the Asian population.   Police arrested

the defendant on January 21, 2013.

    The investigating officers interviewed the assistant

administrator for the complex, and also reinterviewed the man

who had been the complex's maintenance supervisor at the time of

the victim's death.   Each of them told police, for the first

time, that when the defendant returned to work, as scheduled, a

few days after the victim's death, he was not wearing the green

army fatigue jacket and work boots that he usually wore to work.

Instead, he wore a sport coat and shoes.   The defendant worked

for approximately a month after the victim's death, and then did

not return.   During that month, he did not wear the green army

jacket or the work boots.

    The complex's maintenance supervisor also told police

during this later interview that, approximately one month before

the victim's death, the supervisor told the defendant to stop

asking residents for money, and offered to lend the defendant
                                                                   10


money for the Christmas holiday.   When the supervisor confronted

the defendant, he agreed that he had been asking residents for

money, said that he would stop doing so, and accepted the

supervisor's offer of a loan.

    2.   Discussion.   In this appeal, the defendant challenges

several statements by the prosecutor during her closing

argument.   He contends that the statements misstated the facts;

made improper inferences based on facts not in evidence;

suggested that the prosecutor had personal knowledge of the case

beyond the evidence that had been presented to the jury;

improperly sought to inflame the jury's emotions and distract

them from making a reasoned determination based on the evidence;

and urged the jury to draw speculative inferences about the

defendant's background, in an effort to prejudice the jury

against him, without any basis in the evidence.   The defendant

maintains that these statements, and his trial counsel's failure

to object to them, require that he be granted a new trial.

    "When a defendant raises a claim of error regarding a

prosecutor's closing argument, we consider (1) whether the

defendant seasonably objected; (2) whether the error was limited

to collateral issues or went to the heart of the case; (3) what

specific or general instructions the judge gave the jury which

may have mitigated the mistake; and (4) whether the error, in

the circumstances, possibly made a difference in the jury's
                                                                    11


conclusions."   Commonwealth v. Kater, 432 Mass. 404, 422–423

(2000), citing Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).

    While prosecutors are entitled to argue "forcefully for the

defendant’s conviction," closing arguments must be limited to

the facts in evidence and the reasonable inferences that may be

drawn therefrom.    Commonwealth v. Wilson, 427 Mass. 336, 350

(1998).    Within this framework, however, a prosecutor may

attempt to "fit all the pieces of evidence together" by

suggesting "what conclusions the jury should draw from the

evidence" (citation omitted).    Commonwealth v. Burgess, 450

Mass. 422, 437 (2008).    Because the defendant did not object to

any of the challenged statements at trial, we consider his

arguments to determine whether there was error and, if so,

whether it created a substantial likelihood of a miscarriage of

justice.   Commonwealth v. Mello, 420 Mass. 375, 379-380 (1995).8

    a.     Defendant's reaction to news of victim's death.    The

defendant argues that the prosecutor relied on facts not in

evidence in describing the defendant's reaction in 1991 when the

investigating officers informed him of the victim's death:


    8
       The defendant argues that his counsel was ineffective for
failing to object to portions of the prosecutor's closing
argument. This claim is reviewed under the substantial
likelihood of a miscarriage of justice standard, which is more
favorable to the defendant than the standard for ineffective
assistance of counsel in other types of cases. See Commonwealth
v. Painten, 429 Mass. 536, 549-550 (1999), and cases cited;
Commonwealth v. Wright, 411 Mass. 678, 681-682 & n.1 (1992).
                                                                  12


         "Is it a coincidence that in this case when the police
    talked to him in 1991 about this case, the defendant cries
    uncontrollably? [A detective] described it extremely
    emotional, over the top. Was this a coincidence? [The
    detective] hadn't even told him how [the victim] had died.
    No other witnesses cried like this. He hadn't even told
    him how [the victim] had died.

         "He hadn't told him that she had been beaten to death
    and that she had been raped, that [the ninety]-year-old
    [victim], [four] feet [ten] inches and 110 pounds, that she
    had beaten to death and raped. But yet, yet, the defendant
    cries uncontrollably. Ask yourself why and what
    conclusions you can draw from that evidence.

         "I would suggest it's because the defendant didn't
    need to be told what had happened to [the victim], he knew.
    He knew what he had done on January 19th of 1991. He knew.
    He knew that he had beaten her to death and he knew that he
    had killed her, and he was scared that he was going to get
    caught."

    As the defendant points out, the trial judge sustained an

objection to part of the detective's testimony:

    The prosecutor: "And you indicated, and it's written in
    the statement, that the defendant became upset and began to
    cry?"

    The detective:    "That's correct."

    The prosecutor:    "Could you describe what this was like?"

    The detective: "It was -- he -- to me, he was over the top
    on the way he started crying. It was -- he was extremely
    emotional. Something I had not experienced before from
    similar witnesses in a case."

    Defense counsel:   "Objection, Your Honor."

    The judge:   "Sustained as to that observation."

The defendant's objection was sustained only as to the

detective's comparison of the defendant's reaction to that of
                                                                   13


similar witnesses.   Had the judge sustained the objection as to

the entire answer, she would not have limited her decision "to

that observation."   The detective's statements that the

defendant "was extremely emotional" and "was over the top on the

way he started crying" were not excluded.   The detective's

testimony thus supports the prosecutor's statement in closing

that the defendant's reaction to the news of the victim's death

was "extremely emotional, over the top."

    Further, on redirect, the prosecutor asked the detective,

"[I]n regards to the defendant breaking down and crying when you

were interviewing him, how many other witnesses did that that

you interviewed?"    The detective responded, "None."   The

defendant did not object.   This testimony supports the

prosecutor's statement that "[n]o other witnesses cried like

[the defendant]."

    The defendant also argues that the prosecutor's statement

that the detective "hadn't even told him how [the victim] had

died" before the defendant's emotional reaction is inaccurate;

at that point, the officer indeed had told the defendant that

the victim had been killed.   The officer did testify that he

informed the defendant that the victim had been killed.       He

testified also, in response to a question from the prosecutor

about whether the officer had mentioned "the manner in which

[the victim] had been murdered" or "the manner in which she was
                                                                     14


found," that he provided the defendant with "[n]o details" about

the victim's death.    Thus, the prosecutor's statement that the

officers had not told the defendant "how" the victim died before

the defendant began crying was a reasonable interpretation of

the detective's testimony.

    b.   Speculation about defendant's motive.    The defendant

contends also that a new trial is required as a result of the

prosecutor's speculation about his motive for the killing:

         "You can ask yourself why, why would someone do
    something like this? I don't know why. . . . Did he have
    a drug problem? I don't know. The medicine cabinet was
    open and left open in her bathroom."

    There was evidence that, when the victim was found, the

door of the medicine cabinet in the bathroom had been partially

open, and her purse had been upended in the bathroom sink.      As

the defendant points out, however, no evidence was introduced

that suggested the defendant used drugs or had any issues with

substance abuse.     This speculation on the defendant's possible

motive for the offense was thus improper, and should not have

been made.   Moreover, the speculative suggestion, without

evidentiary support, went to an issue that, while not an element

of the offense, might have been a significant question in the

minds of the jury:    what would have motivated such a brutal

attack on a ninety year old woman who stood less than five feet

tall.
                                                                    15


    Nonetheless, the prosecutor did clarify that she was

speculating in making this statement, commenting at the

beginning of these musings, "I don't know why [the defendant

would have done this]" and ending by repeating, "I don't know."

The prosecutor also explained, accurately, that motive "[is] not

an element that the Commonwealth has to prove.    The Commonwealth

doesn't have to prove why."     See Commonwealth v. Bois, 476 Mass.

15, 33 (2016).   In the circumstances here, given the strength of

the Commonwealth's evidence, and the brief and passing nature of

these statements, the improper speculative remarks would have

had but little, if any, effect on the jury's thinking.

    c.   Inferences to be drawn from victim's injuries.     The

defendant contends that the prosecutor also misstated the

evidence in presenting her argument in support of the

Commonwealth's theory that the manner of the victim's death was

extremely atrocious or cruel.    The prosecutor told the jury that

the victim "didn't die from the first blow . . . .     [H]ow else

would you explain blood on the palms of her hands and bruising

on the back of her hands, on her fingers. . . .     [The victim]

was alive.   She suffered.   She was trying to protect herself,

covering her bleeding head as the defendant struck her

repeatedly, bruising her hands as she covered her head."

    While the jury could have found, based on the medical

evidence, that the victim had been killed by the first blow to
                                                                   16


her head, as the defendant argues, the medical evidence amply

supports the prosecutor's assertions that the victim was alive

after repeated blows, and would have suffered from her numerous

injuries.   On cross-examination, the medical examiner testified

that one blow to the head of a ninety year old woman could

result in immediate death.   The medical examiner also testified,

however, that in his opinion, the cause of the victim's death

was "multiple blunt trauma" to the "head and chest."   He further

testified that there was physical evidence consistent with

"aspirating the blood that was in the pharynx," which meant that

the victim would have been alive and struggling to breathe after

the attempt at strangulation or after the multiple blows to her

face.   The medical examiner also testified that the victim's

broken bones, displaced nose, and other injuries would have been

painful.

    "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."   Commonwealth

v. Whitman, 453 Mass. 331, 343 (2009).   The defendant is correct

that the evidence here did not establish definitively at what

point during the attack the victim died.   One of the reasonable

inferences to be drawn from the evidence, however, was that the

victim was not killed by a single blow, and suffered during the

brutal attack.   Indeed, the medical examiner was inclined to
                                                                   17


that belief.   Therefore, this portion of the prosecutor's

statement was not improper.    See Commonwealth v. Andrade, 468

Mass. 543, 552 (2014) ("[T]he prosecutor did not misstate the

medical examiner's testimony.   Rather, he . . . asked the jury

to draw an inference [based on all of the evidence]").

    The defendant also challenges the prosecutor's statement in

closing that the victim fought to defend herself and had been

trying to protect her head with her hands when her hands were

bruised.   The defendant argues that the Commonwealth presented

no evidence from which the jury could determine that the bruises

on the back of the victim's hands were defensive wounds.     As the

defendant asserts, the Commonwealth did not introduce any expert

testimony to support this theory.   See Commonwealth v. Cyr, 425

Mass. 89, 96-97 (1997) (medical expert may testify that injuries

were defensive wounds).   The defendant notes that there were no

other injuries to the victim's hands and arms, such as

scratches, cuts, or abrasions, and no biological material was

found under her fingernails.    Nonetheless, the nature of the

assault and the number of blows inflicted on the victim could

have supported an inference that she bruised her hands in some

manner attempting to ward off her attacker.   To the extent that

the evidence did not allow the prosecutor to argue that the

victim sustained these wounds "as she covered her head," the

brief comments did not create a substantial likelihood of a
                                                                      18


miscarriage of justice, given the overwhelming evidence of the

brutality of the attack against a particularly vulnerable

victim.

    d.      Suggestion that the defendant disposed of blood

evidence.    The defendant claims also that the prosecutor's

suggestion that the defendant needed to remove blood from his

person before leaving the apartment, or that he had gotten blood

on his clothes, was improper.     The prosecutor's suggestions to

this effect, however, were inferences the jury properly could

have drawn from the blood spatter on the walls, the curtains,

and the furniture in the bedroom; the blood on the wall in the

bathroom; the victim's wet purse in the sink; the towel found in

the toilet; the evidence of blood in the drains in the bathroom

and kitchen sinks; and the testimony that, after the victim's

death, the defendant never wore the jacket and work boots to

work that he previously had worn routinely.

    e.      Relief pursuant to G. L. c. 278, § 33E.   At trial, the

defendant argued that certain items of physical evidence had

been mishandled and some pieces of evidence had been lost, thus

giving rise to reasonable doubt about his guilt.      Although the

defendant did not raise any arguments on appeal concerning the

handling of the evidence, because the record does indicate

issues with respect to specific items, we consider these issues

as part of our duty pursuant to G. L. c. 278, § 33E.
                                                                     19


     The crime lab analyst who tested the anorectal swab in 2002

testified that, in February, 2003, she wrote a note that "[t]he

original case file cannot be located at this time."   The

"original file" referred to the forms presented when the sample

was submitted to the crime lab in 1991.   The anorectal swab

itself was not lost; the crime lab returned the sample to the

Springfield police in 1995, and the Springfield police

resubmitted the sample to the crime lab in 2001.9   "Alleged

defects in the chain of custody usually go to the weight of the

evidence and not its admissibility."   Commonwealth v.

Viriyahiranpaiboon, 412 Mass. 224, 230 (1992).   Where the judge

allowed the defendant to argue that "the Commonwealth has not

proven this case, has not connected the dots" because of the

assertedly defective chain of custody, there was no error.     See

id. at 230-231.

     We have carefully reviewed the entire record, pursuant to

our duty under G. L. c. 278, § 33E, and discern no reason to set

     9
       Similarly, the defendant argued in his closing that other
physical evidence was "lost" because it had been found in the
Springfield police department evidence room the week before
trial. An officer testified that Springfield police believed
they had produced all of the evidence, only to discover an
additional box that had the case label on a side that had not
initially been visible to them. At trial, the defendant made
use of this situation to argue to the jury that the evidence had
been lost, notwithstanding that the defendant had received
information about the evidence a week prior to trial, and, on
appeal, does not make any claim of prejudice from the late
disclosure. Accordingly, there is no error. See Commonwealth
v. Viriyahiranpaiboon, 412 Mass. 224, 230-31 (1992).
                                                        20


aside the verdict or to reduce the degree of guilt.

                                   Judgment affirmed.
