COMMONWEALTH vs. AARON LESTER.

LOWY, J. This case arises out of the shooting deaths of Tyrone Lewis, Jr., and Adrian White. On March 29, 2005, a grand jury indicted the defendant on eight counts, including two counts of murder. [Note 2] On February 7, 2007, the Commonwealth proceeded to trial against the defendant, Aaron Lester, and two codefendants, Maurice Felder and Derrick Washington, under a joint venture theory. [Note 3], [Note 4] After trial, the jury found the defendant guilty on both indictments charging murder in the first degree. [Note 5] The defendant filed a notice of appeal on March 1, 2007. [Note 6] On November 5, 2018, the defendant filed a motion for a new trial, which the trial judge denied on December 20, 2018. We consolidated the defendant's appeal from that denial with his direct appeal.

On appeal, the defendant seeks reversal of his convictions, claiming that each of the following amounts to reversible error: (1) the judge's admission of a deoxyribonucleic acid (DNA) expert's testimony regarding a nonexclusion result; (2) the judge's admission in evidence of charts depicting DNA test results; (3) several of the prosecutor's closing argument statements;

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(4) the judge's jury instruction that prior inconsistent statements may not be considered substantively; and (5) the judge's denial of the defendant's motion for a new trial, asserting that court room closure during voir dire was unconstitutional. Following plenary review of the record pursuant to G. L. c. 278, § 33E, we affirm.

Background. 1. The murder. We recite the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Tavares, 484 Mass. 650, 651 (2020). After drinking to excess at a friend's Super Bowl party, on Sunday, February 6, 2005, Mark Young became very intoxicated. At about 2:15 p.m., Young's girlfriend, Vanessa Fulton, brought Young home, helped him into bed, and, after a couple of hours, left with plans to return later that evening. Around 9 p.m., Young awoke to the sound of an incoming telephone call from Felder, Young's acquaintance and a codefendant in this case, who said, "I'm downstairs." Young then went downstairs, opened the front door, and saw Felder with the defendant and Washington, the other codefendant. [Note 7] Young permitted all three men to enter.

Around 10 p.m., the three visitors asked Young to contact Lewis to buy "crack" cocaine. [Note 8] When Young refused, the defendant forced Young to telephone Lewis at gunpoint. The three assailants then forced Young to strip down to his boxer shorts, creating an excuse for Young to remain inside and thus ensuring that Lewis would enter Young's house once he arrived.

When Lewis arrived and entered the house about twenty minutes later, the three assailants beat him, forced him to strip down to his boxer shorts, and ordered him to contact his driver, White, and to tell White to come inside. When White entered the house, the three assailants forced him to strip down to his boxer shorts as well. [Note 9]

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Lewis offered to pay the three assailants $20,000 to release him and White. The assailants permitted Lewis to contact his girlfriend. After two telephone conversations with Lewis, Lewis's girlfriend handed a gift bag to an individual, whom she later identified as Felder, [Note 10] who arrived at her home in a "goldish" car. [Note 11] About twenty minutes later, Felder returned to Young's house, and Young then heard the assailants counting and dividing money in another room.

Shortly thereafter, the defendant asked Young to give him sheets and a pillow. After Young complied, the three assailants forced Young, Lewis, and White, at gunpoint, up to the attic and onto the floor, where the assailants used the bedding to restrain the victims. Specifically, the defendant used a pillowcase to tie up Young.

Each assailant carried his own handgun. According to Young, the defendant held a nine millimeter, Felder held a .22 caliber Ruger, and Washington held either a .45 or .40 caliber gun. The defendant stood over Young, Washington stood over Lewis, and Felder stood over White. The assailants decided to kill the victims simultaneously, and as the assailants counted down, Young turned his head slightly, heard gunshots, and felt something hot brush his left cheek. [Note 12] When Young opened his eyes, he saw that Lewis had been shot in the head. Young proceeded to "play dead." White then jumped up and ran down the stairs, the assailants chased him, and Young heard numerous gunshots coming from the stairwell.

After he heard the assailants run down the stairs, Young got up, went to a window, and saw two people get into a car. Young then went downstairs himself and saw White at the bottom of the stairwell, still alive. Young fled to get help. After knocking at several

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houses, one neighbor finally answered. The neighbor testified that Young was barefoot, wearing only boxer shorts, shivering, and looking "very, very scared." Young told the neighbor that two of his friends had been shot and killed. They called the police.

2. The investigation. When the police arrived at Young's house shortly after midnight on February 7, they found White's body at the bottom of the attic stairs [Note 13] and Lewis on the attic floor, still tied up and alive. Lewis died later due to multiple gunshot wounds. From Young's house, the police recovered discharge cartridge casings from three different weapons, the types of which matched Young's testimony regarding the types of firearms the defendants possessed. [Note 14] The police observed a bullet hole next to where Young stated he had been lying down, which led through the attic floor and through the ceiling of the bathroom below. The police recovered one discharged nine millimeter cartridge casing from the attic, as well as one spent projectile that was consistent with the nine millimeter cartridge casing, from the bathroom floor.

Investigators tested several items and surfaces for DNA, including the pillowcase the defendant used to restrain Young. The pillowcase sample revealed DNA from multiple people, of which the defendant was a potential contributor. [Note 15]

In Young's statement to police, he initially lied and said he had been a victim of a home invasion by three masked intruders. After the district attorney agreed to dispose of Young's pending charges and assured Young that he could leave the Commonwealth, Young told the police the above described version of events. [Note 16]

During a routine traffic stop later that afternoon, the police arrested the defendant and Washington. The police subsequently recovered $5,907 in cash from the defendant's pocket and $6,702 in cash in Washington's pocket. The police had already arrested Felder earlier that morning, at the hospital, where he was seeking treatment for a gunshot wound to his hand. Inside Felder's pants

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pocket, the police found $7,000 in cash, divided into seven bundles of $1,000, each of which was folded and bound with a black band.

Discussion. 1. Pillowcase DNA. At trial, the Commonwealth's expert testified that with regard to the mixed DNA sample found on the pillowcase, the defendant was a potential contributor, but not a match, as it was impossible to discern a match from a mixed sample. We refer to such DNA evidence as a "nonexclusion" result, as opposed to an inconclusive result, the latter of which provides "no information whatsoever due to insufficient sample material, contamination, or some other problem" (quotations omitted and emphasis in original). Commonwealth v. Barnett, 482 Mass. 632, 639 (2019), quoting Commonwealth v. Mattei, 455 Mass. 840, 853 (2010). See Commonwealth v. Cameron, 473 Mass. 100, 106 (2015). The expert also testified that the "probability of a randomly selected unrelated individual having contributed DNA to [the pillowcase sample was] approximately . . . [one] in [twenty-one] of the African-American population." [Note 17], [Note 18]

As part of his report, the expert compiled four DNA charts (original DNA charts) illustrating the DNA analysis. [Note 19] For trial,

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the prosecutor both enlarged the original DNA charts and created new DNA charts by cutting and pasting parts of the original DNA charts onto two separate, smaller DNA charts (smaller DNA charts). [Note 20] The prosecutor displayed all six DNA charts during the expert's testimony without objection. After the expert's testimony, however, the judge admitted all six DNA charts in evidence over the three defendants' objections. [Note 21] The DNA charts did not include the expert's conclusions or any statistical analysis.

2. Admission of DNA charts in evidence. [Note 22] The defendant

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argues that the judge abused his discretion by admitting the DNA charts that contained the nonmatch results, over objection, without including the statistical analysis. We disagree.

We have repeatedly acknowledged the importance of statistical analyses to explain DNA matches to the jury, concluding that the probative value of a DNA match is negligible without such analysis. See Commonwealth v. Cole, 473 Mass. 317, 327 (2015), quoting Commonwealth v. Tassone, 468 Mass. 391, 402-403 n.2 (2014) ("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'"). See also Commonwealth v. Barbosa, 457 Mass. 773, 789 (2010), cert. denied, 563 U.S. 990 (2011), quoting Commonwealth v. Lanigan, 419 Mass. 15, 20 (1994) (evidence of DNA match "is meaningless without evidence indicating the significance of the match"). As a result, we have held that admitting nonexclusion results without the accompanying statistical analysis risks misleading the jury and unfairly prejudicing the defendant. See Mattei, 455 Mass. at 852. That rationale, however, does not apply to the admission of DNA charts with the same force.

Here, the jury heard the expert's statistical analysis on direct examination, as well as on cross-examination and during the defendant's attorney's closing argument. "The expert's opinions were what mattered to the jury, who likely would have found the raw data incomprehensible without the accompanying" statistics. Commonwealth v. Seino, 479 Mass. 463, 471 (2018). We must trust that a reasonable juror would have understood the expert's thrice repeated testimony, no matter that they did not have the precise statistical analysis attached to the DNA charts during deliberation. While we conclude that the judge did not err in

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admitting the charts, we also note that the better course is to remind the jury that they must consider the charts in conjunction with the expert's testimony, including the expert's statistical analysis. See id., quoting Commonwealth v. McCowen, 458 Mass. 461, 484 (2010) (because "[t]he DNA charts merely displayed genetic locations, [and] not any information regarding a match or the statistical probability thereof," they alone "had no meaningful probative value"). [Note 23]

3. Prosecutor's closing argument. The defendant also argues that the prosecutor made several improper statements during her closing argument, which together or separately prejudiced the defendant and thus warrant a new trial. Specifically, the defendant argues that the prosecutor improperly (1) misstated DNA evidence, asserting that the defendant's DNA was on the pillowcase; (2) both defined reasonable doubt and urged the jury not to look for reasonable doubt; and (3) speculated that the defendant cooperated upon his arrest because he believed there were no living witnesses to the murders. Because the defendant objected to the first two allegedly improper statements, we review those for prejudicial error. See Commonwealth v. Alvarez, 480 Mass. 299, 305, S.C., 480 Mass. 1015 (2018) (no prejudicial error where error did not influence jury or had "very slight effect" on jury [citation omitted]). Because the defendant did not object to the third statement, should we conclude it was erroneous, "we review for a substantial likelihood of a miscarriage of justice." Commonwealth v. Andre, 484 Mass. 403, 417 (2020).

We consider statements made during closing argument "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Felder,

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455 Mass. 359, 368 (2009). Where the judge properly instructed the jury, "we must presume that the jury understood that instruction." Andre, 484 Mass. at 418, citing Commonwealth v. Kolenovic, 478 Mass. 189, 200 (2017).

a. Misstatements of DNA evidence. Despite the expert's testimony to the contrary, the prosecutor twice stated in her closing argument, over objection, that the defendant's DNA was on the pillowcase. [Note 24] The prosecutor erred in misstating the evidence. [Note 25] See Commonwealth v. Lao, 460 Mass. 12, 22 (2011), quoting Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (prosecutor "may not misstate the evidence" [quotation omitted]). See also Commonwealth v. Holley, 476 Mass. 114, 127-128 (2016) (error for prosecutor to ask jury to infer that DNA came from police officer when DNA results were inconclusive). The prosecutor's error, however, did not prejudice the defendant. See Alvarez, 480 Mass. at 305.

"We consider four factors in determining whether an error made during closing argument is prejudicial: '(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 conclusions.'" Id. at 306, quoting Commonwealth v. Silva-Santiago, 453 Mass. 782, 807 (2009). Here, the defendant timely objected and, as acknowledged by the Commonwealth, the prosecutor's misstatements pertained both to Young's credibility and to the defendant's identity; thus, they went to "a critical issue in the case." Commonwealth v. Taylor, 455 Mass. 372, 384-385 (2009).

We next turn to the judge's instructions, which we evaluate "as a whole and interpret . . . as would a reasonable juror." Andre, 484 Mass. at 416, quoting Commonwealth v. Kelly, 470 Mass. 682, 697 (2015). We agree that given the defendant's timely objection

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and the prosecutor's misstatements, a specific, curative instruction would have been the better course. However, the defendant's attorney did not request a specific, curative instruction, nor did he object to the judge's instructions as given. See Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979) ("No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, specifying the matter to which he objects and the grounds of his objection").

The judge's general instructions sufficiently mitigated the error: "if in the course of final arguments either attorney gave you an impression as to how they think you ought to find the facts, or expressed their own personal opinions to you about the facts, or talked to you about things that you didn't recall from the testimony, then ignore it, because it's your collective memory of the testimony that controls." The judge also provided three separate instructions that closing arguments were not evidence, including a thorough instruction just prior to closing arguments. Cf. Commonwealth v. Dirgo, 474 Mass. 1012, 1017 (2016) (new trial necessary where misstatements were not "offset by overwhelming evidence of . . . defendant's guilt" and judge's general instructions "did not specifically address, and were not enough to cure the cumulative effect of, the particular errors we have identified"). We must presume the jury understood all four instructions. See Andre, 484 Mass. at 418.

Finally, and mostly importantly, under these circumstances, we cannot say that the prosecutor's misstatements, which only comprised thirteen words of her thirty-three page closing argument, "possibly made a difference in the jury's conclusions." Alvarez, 480 Mass. at 306, quoting Silva-Santiago, 453 Mass. at 807. As stated above, the jury heard the expert's clear testimony that the defendant was a potential contributor to the pillowcase DNA sample, as well as the required explanation of the statistical analysis. Moreover, while closing arguments are not evidence, the defendant's attorney reiterated the expert's testimony during his closing argument.

This is not a case wherein the prosecutor referred to the DNA charts and "encouraged the jury to act as their own experts." Mattei, 455 Mass. at 856. Rather, the prosecutor briefly mentioned the DNA chart in reference to the expert's testimony. There was also significant evidence of the defendant's guilt, including Young's extensive eyewitness testimony, which was corroborated by the neighbor's testimony as to Young's demeanor

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and Young's statements on the night of the murders, the bullet hole in the attic floor where Young testified he had been lying down, the corresponding spent projectile discovered in the bathroom below, and the cash in the defendant's and in his coventurer's pockets upon arrest.

b. Improper discussion of reasonable doubt. During her closing argument, the prosecutor (1) appeared to define reasonable doubt and (2) urged the jury not to "look for doubt." [Note 26] We conclude that neither statement constituted error.

It is error for attorneys to provide their own definition of reasonable doubt in their closing arguments. To the extent that a prosecutor does so, that discussion must follow our uniform jury instruction on proof beyond a reasonable doubt. See Commonwealth v. Russell, 470 Mass. 464, 477 (2015). The prosecutor's discussion here, however, was not in error.

Regarding the prosecutor's first statement, while legal instruction falls squarely within the judge's province, see Commonwealth v. Szczuka, 391 Mass. 666, 674 (1984), S.C., 413 Mass. 1004 (1992), as both the prosecutor and the judge noted, the prosecutor's statements were not incorrect statements of law. She correctly explained that the concept of reasonable doubt is not "susceptible to quantification; it is inherently qualitative." Commonwealth v. Ferreira, 460 Mass. 781, 787-788 (2011), quoting Commonwealth v. Sullivan, 20 Mass. App. Ct. 802, 806 (1985).

As to the prosecutor's second statement, we conclude that the prosecutor did not err in encouraging the jury not to look for doubt. We have previously discerned no error where judges instructed the jury that they need not search for doubt. See Commonwealth v. Watkins, 425 Mass. 830, 836 n.9 & 839 (1997) (no error in instructing jury that "[a] reasonable doubt, for example, is not the doubt that might exist in the mind of a man or a woman

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searching for some doubt, for some excuse to acquit a defendant"); Commonwealth v. Randolph, 415 Mass. 364, 367 (1993), S.C., 438 Mass. 290 (2002) (no error in instructing, "[Y]ou're not to search for doubt").

Ultimately, however, the judge's proper reasonable doubt instruction ameliorated any possible confusion or prejudice caused by the prosecutor's statements. See Commonwealth v. Morales, 461 Mass. 765, 784 (2012), citing Szczuka, 391 Mass. at 673-674.

c. Improper speculation. During the routine traffic stop, during which the defendant and Washington were arrested, a police officer asked if there was anything in the car about which the officer should know. The defendant responded that he had $5,700 in his pocket. During closing argument, the prosecutor posited that the defendant only cooperated by telling an officer about the cash in his pocket because the defendant believed Young was dead. [Note 27] On appeal, the defendant argues that this constituted improper speculation. We disagree.

The prosecutor's assertion was a reasonable inference based on the evidence admitted. See Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018), quoting Kozec, 399 Mass. at 516 ("a prosecutor may argue 'forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence'"). Young testified that he pretended to be dead after the defendant stood directly over him and shot at his head, and the location of the bullet hole was consistent with his testimony. A police officer also testified that on the night of the murders, Young stated that "the suspects assumed he was dead."

Moreover, the prosecutor directly responded to, and offered a different interpretation of, the defendant's attorney's closing argument that the defendant's cooperation was indicative of consciousness of innocence. See Commonwealth v. Preziosi, 399 Mass. 748, 753 (1987) (prosecutor's rebuttals of defense's suggestion that police cooperation demonstrated consciousness of innocence "were within the proper realm of suggesting opposing inferences which could be drawn from the evidence"). See also Fernandes, 478 Mass. at 741, quoting Commonwealth v. Smith, 404 Mass. 1, 7 (1989) ("prosecutor entitled to point out the weaknesses of the defendant's case and 'make a fair reply to the defendant's closing argument'"). Finally, as stated above, the judge made it abundantly clear that closing arguments were not

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evidence. There was no reversible error.

4. Prior inconsistent statements instruction. The defendant next argues that the judge erred in instructing the jury, sua sponte, that they may only consider prior inconsistent statements in relation to a witness's credibility, and not as substantive evidence. [Note 28] The defendant further argues that this error prejudiced his defense because his attorney had sought to use the statement Fulton, Young's girlfriend, made to the police and adopted shortly after the murders, which differed from her trial testimony, to discredit Young's testimony. We agree that the judge's instruction as it related to Fulton's adopted statement to the police was erroneous, but the error did not prejudice the defendant as to require a new trial. Commonwealth v. Odgren, 483 Mass. 41, 46 (2019) (where defendant's attorney objected, we review for prejudicial error).

At trial, Fulton testified that she observed three men outside Young's house around the time of the murders. In her adopted statement to the police, however, Fulton stated that she had observed four men; the three men she mentioned at trial and one more man sitting in the gold car outside of Young's house. [Note 29] As

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both parties now agree, the judge properly admitted Fulton's adopted statement to the police in evidence, over the Commonwealth's objection, under the past recollection recorded exception to the rule against hearsay. See Commonwealth v. Evans, 439 Mass. 184, 189, cert. denied, 540 U.S. 923 and 540 U.S. 973 (2003) (describing factors to admit statement under exception); Mass. G. Evid. § 803(5) (2020) ("A previously recorded statement may be admissible if [i] the witness has insufficient memory to testify fully and accurately, [ii] the witness had firsthand knowledge of the facts recorded, [iii] the witness can testify that the recorded statement was truthful when made, and [iv] the witness made or adopted the recorded statement when the events were fresh in the witness's memory"). The evidence, therefore, had a dual relevancy. The statement was admitted both for its truth and to impeach Fulton's in-court testimony.

To the extent that judges provide a jury instruction, like the one provided here, that states that prior inconsistent statements made during the trial are admissible only to impeach and not as substantive evidence, that instruction, in some circumstances, may be incorrect. In some trials, at least some prior inconsistent statements are also admitted as substantive evidence. [Note 30]

It is unrealistic to expect that during the course of a trial, the judge is going to be able to catalog every out-of-court statement, and then give an appropriate final instruction as to whether each out-of-court statement was admitted substantively or to impeach in the absence of a request from counsel. Moreover, because out-of-court statements, like the one here, often have a dual relevancy -- they are admissible for their truth and to impeach -- the party concerned about the purpose for which the prior inconsistent statement is admitted has the burden of requesting the appropriate instruction from the judge at the time the statement is admitted. It is better practice for judges to instruct the jury at the time of the statements' admission as to the purpose for which they were admitted. Where no request is made, that does not

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mean that the evidence was not admissible substantively in the absence of a sustained objection. It just means that the proponent of the evidence may not be heard to object during the final instructions as to the instruction on the limited use of prior inconsistent statements. [Note 31]

The defendants' trial strategy centered on discrediting Young, including his testimony that there were only three assailants -- the defendants. Thus, the defendant argues that by preventing the jury from considering Fulton's adopted police statement substantively, a statement in which Fulton contradicted Young's trial testimony, the judge effectively bolstered Young's credibility. We disagree.

While all three defense attorneys pointed to Fulton's statement as a reason to doubt Young's testimony, the attorneys also put forth ample evidence, both substantive and impeachment, separate from her statement, which was designed to discredit Young. The defense attorneys elicited testimony from Young on cross-examination regarding his inconsistent statements as to the alleged injury to Young's face and whether his assailants were wearing masks. The defense attorneys later bolstered these inconsistencies through testimony and evidence from the officers who interviewed Young on the night of the murders. [Note 32] The attorneys also highlighted the deal Young made with the Commonwealth in exchange for identifying the defendants. Moreover, the defense attorneys spent the majority of their thorough closing arguments describing the multiple reasons why the jury should not trust Young's testimony.

As such, Fulton's adopted statement to the police was one relatively small part of the defense's over-all strategy to discredit Young and the adopted statement maintained its relevance for that purpose. Moreover, the defendant's attorney, in his closing argument, used this statement for its truth. Thus, we cannot say that "there is a reasonable possibility that the error might have contributed

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to the jury's verdict." See Odgren, 483 Mass. at 46, quoting Commonwealth v. Wolfe, 478 Mass. 142, 150 (2017).

5. Public trial. The defendant finally renews the argument he made in his motion for a new trial, claiming that he is entitled to a new trial because the court room was closed during voir dire, violating his right to a public trial. In support of his motion, the defendant included a portion of the trial transcript referencing court room closures and affidavits from himself, his mother, and his trial attorney, among others. The defendant did not object at trial. The motion judge, who was also the trial judge, denied the motion.

Here, the judge explicitly stated: "I remember the trial well. The courtroom was not closed to the public. I do not credit the affidavits that the defendant's motion and friend [included] to the contrary." Nothing in the record indicates that the judge erred. The portion of the transcript that the defendant included with his motion reflects a conversation between the prosecutor and the judge in which the prosecutor explicitly asked about closed court rooms "just for edification" and, notably, the judge responded that the court room will not be closed. Moreover, neither attorney who submitted an affidavit -- the defendant's attorney or Washington's attorney - recalls any court room closure, and a judge need not credit a defendant's affidavit. See Commonwealth v. Leng, 463 Mass. 779, 787 (2012). See also Commonwealth v. Sanchez, 476 Mass. 725, 742 (2017) ("judge may consider the affiant's self-interest or bias").

6. Review under G. L. c. 278, § 33E. We have reviewed the entire record of this case pursuant to our responsibilities under G. L. c. 278, § 33E. We conclude that there is no basis for reducing the defendant's sentence on the murder conviction or ordering a new trial. We affirm the defendant's convictions and the order denying his motion for a new trial filed on November 5, 2018. [Note 33]

So ordered.