MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant, Antonio Frazier, was convicted of murder in the second degree.
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He appeals, contending that evidence of deoxyribonucleic acid (DNA) and gunshot residue (GSR) was improperly admitted, the prosecutors closing argument was improper, and the judge erred in denying his renewed motion to sever. We affirm.
Background. The victim, Gustavo Perez, worked at a club in Lawrence where patrons gambled on horse races, dice, and poker games. He was responsible for collecting the money from the games for the club. On November 29, 2011, at approximately 4:30 p.m., the victim was standing outside of the club with a patron, Carlos Lora. Two men approached them; Lora described the pair as “a black guy” (later identified as the defendant) and an “Indian colored man” (later identified as the codefendant). The defendant and the codefendant grabbed the victim and pulled him into the street. The defendant pulled out a gun and shot the victim. As the victim fell to his knees, the defendant kept shooting; the defendant and the codefendant then ran from the scene.
Just prior to the shooting, Lawrence police Officer Joseph Padellaro, who was in his personal car, saw two men. One man (later identified as the defendant) was wearing a dark coat with a “reddish hood or something red.” Padellaro watched as this man gestured with his right hand. He then heard five to six gunshots. Padellaro followed the two men as they ran from the scene.
Shortly after the shooting, Lawrence police Officer Sean Burke saw the defendant. He noted that the defendant was sweating and out of breath. Burke approached the defendant, who gave several differing and inconsistent reasons as to why he was in Lawrence.
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As the two spoke, Burke noticed that there were leaves sticking out of the defendants shirt collar. At the defendants request, Burke removed the defendants cell phone from his back pocket. The cell phone was in two pieces: the phone and the battery. The back panel was not in the defendants possession.
Police officers found a number of items in bushes near the shooting, and along the defendants flight path, including a coat, a black sweatshirt with a red hood, and, notably, the back panel of a cell phone. A glove was found in the pocket of the sweatshirt. Officers also located a Volvo parked near the scene. It was registered to Priscilla Frazier. Pursuant to a search warrant, police found a receipt with the defendants name on it, mail addressed to the codefendant, a picture of the codefendant, and a wallet that contained the defendants identification in the Volvo. When the defendant was booked, a set of Volvo car keys were taken from him. At trial, the defendant argued that was he was not present at the shooting, that the police did an inadequate investigation, and that the defendant was misidentified by several witnesses.
Discussion. 1. DNA evidence. The defendant contends that it was error to permit the DNA analyst to testify to her conclusions about the two minor DNA profiles found in the glove that was found in the sweatshirt pocket.
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Because defense counsel withdrew his initial objection to this testimony, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).
The defendant claims that the two minor DNA profiles were incomplete and that their value was below the laboratorys reporting threshold. Accordingly, he posits that it was error to allow the analyst to testify to her conclusions drawn from them. Passing on the question whether the evidence was improperly admitted, “[t]he substantial risk standard requires us to determine ‘if we have a serious doubt whether the result of the trial might have been different if the error had not been made.’ ” Dirgo, 474 Mass. at 1016, quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005). “[W]e review the evidence and the case as a whole” in making this determination, and “consider the strength of the Commonwealths case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision.” Dirgo, supra, quoting Azar, supra.
Here, defense counsel thoroughly and effectively challenged the DNA evidence on cross-examination and forcefully addressed it in his closing argument. In addition, the prosecutor did not mention this evidence in her closing argument and did not rely on it to establish a link between the defendant and the glove (which tested positive for GSR). Moreover, the evidence that inculpated the defendant was strong and included eyewitness testimony, physical evidence at both the scene of the shooting and along the defendants flight path, and the defendants inconsistent statements to the police.
Given the totality of the evidence, we conclude that the admission of the DNA evidence did not create a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 395 (2009), quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986) (“Where evidence of guilt is strong and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice”).
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2. GSR evidence. The defendant next contends that the chemist was improperly permitted to testify that the negative GSR test result was “as an affirmative positive result.”
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The chemist explained the process of GSR testing including how “recovered particles” are used to determine whether they contain three components unique to GSR. He testified that the laboratory requires a minimum of three such particles in order to be considered a positive result. Any sample with less than three particles is considered a negative result. With this background, the chemist testified that the swab taken from the defendants hand tested negative for GSR because there were only “two separate particles containing all three components” in the swab.
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The chemist did not draw any conclusions connecting the defendant to the gun based on the GSR evidence. Rather, the testimony “provided the jury a precise and thorough analysis of the [GSR testing] ․ and left any inferences that might be drawn from it to [the jury].” Commonwealth v. Johnson, 463 Mass. 95, 108 (2012). The prosecutor did not mention the GSR particles found on the swab of the defendants hand in her closing argument, and did not suggest to the jury that they should use this evidence to find that the defendant was in close proximity to a fired gun. In addition, the defendant thoroughly tested this evidence on cross-examination of the chemist.
Passing on whether the admission of the GSR evidence was error, we conclude that its admission was not prejudicial nor did it create a substantial risk of a miscarriage of justice. Among other factors, we consider the other evidence against the defendant, discussed supra, the tempering effect of the defendants cross-examination and recross-examination of the chemist, the comparative brevity of the testimony within the context of the trial, the absence of argument regarding the “negative” GSR result in the prosecutors closing, and the judges instructions to the jury.
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3. Prosecutors closing argument. The defendant contends that the prosecutors closing argument impermissibly suggested a motive for the murder that was unsupported by the evidence.
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Because the defendant objected, we review for prejudicial error. See Commonwealth v. Morales, 461 Mass. 765, 784 (2012).
The prosecutors argument was a permissible inference that could be drawn from the evidence. See Commonwealth v. Roy, 464 Mass. 818, 829 (2013) (prosecutors entitled to marshal evidence and suggest inferences that jury may draw from it). “[I]nferences need only be reasonable and possible.” Id. We do not consider a remark during closing argument in isolation, but rather in the context of the entire closing argument. See Commonwealth v. Foxworth, 473 Mass. 149, 161 (2015).
Assuming without deciding that the challenged portion of the prosecutors closing argument was error, “[it] was limited to the collateral issue of motive. ‘Evidence of motive was not a necessary element of proof.’ ” Commonwealth v. Perez, 444 Mass. 143, 152 (2005), quoting Commonwealth v. Lucien, 440 Mass. 658, 666 (2004). See Commonwealth v. Resende 476 Mass. 141, 155 (2017) (“Motive is a collateral issue, and an impermissible inference with respect to motive does not necessarily amount to reversible error”). It was also a fair response to the defendants closing argument wherein he stressed that the defendant had no motive to kill. “In the circumstances here, given the strength of the Commonwealths evidence, and the brief and passing nature of these statements, the [challenged] speculative remarks would have had but little, if any, effect on the jurys thinking.” Commonwealth v. Diaz, 478 Mass. 481, 490 (2017). Moreover, the judges instructions cured any possible prejudice as the jury were instructed three times that closing arguments were not evidence. See Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018) (juries are presumed to follow judges instruction that closing arguments are not evidence).
4. Severance. The defendant claims that the judge abused his discretion in denying his motions to sever his trial from that of his codefendant. “[S]everance is usually a matter within the sound discretion of the trial judge.” Commonwealth v. Moran, 387 Mass. 644, 658 (1982). There is a presumption in favor of joint trials where the allegations against codefendants “arise out of the same criminal conduct ․ or series of criminal episodes so connected as to constitute parts of a single scheme, plan, conspiracy, or joint enterprise.” Mass. R. Crim. P. 9 (b), 378 Mass. 860 (1979).
“Generally, severance will not be granted unless the defenses of the codefendants conflict to the point of being ‘mutually antagonistic and irreconcilable.’ ” Commonwealth v. Masonoff, 70 Mass. App. Ct. 162, 167 (2007), quoting Moran, 387 Mass. at 659. “[D]efenses are mutually antagonistic and irreconcilable where the ‘sole defense of each [is] the guilt of the other.’ ․ Severance is not required where the defendants merely assert inconsistent trial strategies.” Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011), quoting Commonwealth v. Stewart, 450 Mass. 25, 31 (2007).
“[I]t is not enough that the defendants are hostile to one another or that one defendant would have a better chance of acquittal if tried alone․ Rather, severance is mandated only if their defenses conflict to the point of being mutually antagonistic and irreconcilable.” Commonwealth v. McAfee, 430 Mass. 483, 486 (1999). Here the defendant asserted he was not the shooter, while the codefendant argued he was present at the scene but was unaware a shooting was going to occur. Such defenses are not mutually antagonistic or irreconcilable. See e.g., id. (defenses not mutually antagonistic where defendants primary defense was misidentification while codefendant testified unidentified companion was shooter); Commonwealth v. Cordiero, 401 Mass. 843, 853 (1988) (codefendants defenses to rape “of ‘mere presence’ and consent, while inconsistent,” were not “mutually antagonistic or irreconcilable”). Here, the defenses did not contradict one another and did not present a scenario where the jury were forced to choose one defendants guilt at the expense of the other. And, the defendants claim that he had a better chance of acquittal if he had been tried alone is not a ground for severance. See Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 206 (1998).
Judgment affirmed.
FOOTNOTES
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. The defendant and a codefendant, Scott Brown, were indicted for murder in the first degree. Brown was convicted of the lesser included offense of assault and battery.
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. The reasons included that he was a rapper who was at a studio with his producer; he met some girls at the studio and did not know where they were or where he was going; and he was from Boston and was at a bar that he could not name.
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. The analyst testified that the DNA profile taken from the glove yielded inconclusive results for comparison with the victims DNA. The analyst testified that inconclusive means “theres just not enough DNA” to make a comparison. The analyst also testified that the codefendant could be excluded from the minor DNA profile found in the glove, but that the defendant could not be excluded because of the labs threshold for conducting statistical analyses.
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. In addition, because the defendant failed to show that admission of the DNA evidence created a substantial risk of a miscarriage of justice, defense counsel was not ineffective for withdrawing his objection to the admission of the DNA evidence or his treatment of it on cross-examination. See Commonwealth v. LaChance, 469 Mass. 854, 858 (2014).
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. The Commonwealth contends that the defendants motion to strike this evidence was untimely and therefore this claim of error was not preserved. The defendant counters that he timely moved to strike the testimony and therefore we should review this claim for prejudicial error. We need not resolve this dispute because, even if error, its admission did not create a substantial risk of a miscarriage of justice, let alone prejudice.
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. The defendants claim that the glove tested positive for GSR based on only four component particles is not supported by the record.
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. Additionally, because there was no prejudice, the defendants claim of ineffective assistance of counsel fails. See LaChance, 469 Mass. at 858.
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. The defendant points specifically to the prosecutors statement: “Thats the guy [the victim] who runs the gaming room. The gaming room where thousands of dollars moves through, card games and dice, where up to twenty thousand dollars could be won or lost on the roll of a set of dice. The kind of money, ladies and gentlemen, the kind of chance that can make people very angry, that can make enemies, that can make someone angry enough to kill or angry enough to hire someone to kill for them.”