Commonwealth v. Cole (Lawyers Weekly No. 10-201-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-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. 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. 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 […]