Commonwealth v. Cole, 473 Mass. 317

Background

On Dec. 24–25, 2005 three men (defendant Cole, William Fields, Vincent Wadlington) planned and executed an armed home invasion/robbery of an apartment in New Bedford; victim Rudolph Santos was shot and killed and occupant Christopher Busby severely stabbed. Fields cooperated with the Commonwealth at trial pursuant to a deal.
Police processed the scene; investigators recovered a black-handled knife and a T-shirt found under the victim. DNA testing produced mixed profiles with major/minor components consistent with Cole and others. Pop Stat software produced statistical match probabilities.
Shortly after the crime Cole was seen with a thigh wound; a man using the alias "Derrick Williams" (same DOB and mother’s name as Cole) was treated at a Rhode Island hospital on Dec. 25 for a thigh laceration. Hospital records and nurse testimony described the injury and the patient’s statement about wrestling with a knife.
Evidence also included witnesses placing Cole at planning meetings and at the scene, Fields’s testimony about the robbery, physical injuries and items later discarded, and the autopsy establishing cause of death (gunshot to head; stab contributed).
Cole was convicted of first‑degree murder (premeditation, extreme atrocity/cruelty, and felony‑murder), armed robbery, home invasion, and assault with a dangerous weapon; he appealed raising evidentiary, Confrontation Clause, discovery, prosecutorial‑misconduct, and sufficiency issues.

Issues

Issue	Commonwealth’s Argument	Cole’s Argument	Held
Admission of hospital medical records and nurse testimony	Foundation sufficient (DOB, mother’s name, alias, officer’s observation of wound) to admit under G. L. c. 233, § 79; records pertain to treatment	Records not shown to be Cole’s; statements in records are hearsay and about liability and should have been redacted	Admitted: foundation adequate; statements about cause/circumstances related to treatment and not excluded as liability; nurse testimony admissible as party‑opponent evidence
Consciousness of guilt jury instruction (use of false name/false statements)	Instruction appropriate where evidence permitted inference Cole used alias and gave false statements/denials which could indicate concealment	No sufficient evidence to support such an instruction if records/testimony excluded	Instruction proper; judge acted within discretion and cautioned jury about innocent explanations
DNA statistical probabilities and Pop Stat use (Confrontation Clause and hearsay)	Expert may rely on Pop Stat to compute frequencies; such computational results are non‑testimonial and foundational challenge required pretrial (Daubert/Lanigan)	Stats/admissions were hearsay/testimonial and violated right to confront out‑of‑court declarants; expert lacked foundation about Pop Stat	No confrontation violation; statistics are non‑testimonial; expert testimony not hearsay; defendant waived Daubert/Lanigan challenge by not moving pretrial
Admission of victim’s T‑shirt after alleged discovery violation	Commonwealth produced the chemist and allowed defense to inspect photos/reports during trial; judge afforded time to review and recall witness	Failure timely to produce photos/reports was a discovery violation requiring exclusion of T‑shirt	No prejudicial error: judge’s remedy (inspection, chance to recall) was within discretion and defense said satisfied
Prosecutor’s opening/closing remarks	Comments set the scene and fairly argued the inferences from evidence; closing comments responded to defense and urged verdict based on proof	Some statements appealed to emotion (Christmas references) or overstated DNA location/causation and equated guilty verdict with justice	Remarks mostly permissible; isolated yuletide flourish regrettable but not prejudicial; DNA/location statements fair inferences; no reversal
Denial of motion for required findings (sufficiency)	Evidence (Fields’s testimony, hospital records linking alias, DNA, physical evidence) sufficient to allow jury to find guilt beyond reasonable doubt	Evidence weak: cooperating witness incentive to lie; DNA ambiguous/inconsistent; insufficient to convict	Evidence viewed in light most favorable to prosecution was sufficient; judge properly denied motion

Key Cases Cited

Flebotte v. Commonwealth, 417 Mass. 348 (prejudicial‑error standard for preservation) (discusses standard of review)
Bouchie v. Murray, 376 Mass. 524 (hospital records admissible under §79) (foundational reliability of hospital entries)
Gogan v. Commonwealth, 389 Mass. 255 (purpose of hospital‑records exception) (relieve medical personnel from testifying)
DiMonte v. Commonwealth, 427 Mass. 233 (admit records mainly relating to treatment even if bearing on liability) (treatment exception scope)
Toney v. Commonwealth, 385 Mass. 575 (consciousness‑of‑guilt instruction) (when instruction appropriate)
Curnin v. Commonwealth, 409 Mass. 218 (DNA match must be accompanied by probability evidence) (statistical context required)
Lanigan v. Commonwealth, 419 Mass. 15 (requirements for admitting DNA evidence and statistical interpretation) (foundation and explanation of match probabilities)
Canavan’s Case, 432 Mass. 304 (Daubert/Lanigan pretrial hearing requirement) (procedure to challenge scientific methodology)
Crawford v. Washington, 541 U.S. 36 (Confrontation Clause principles) (testimonial‑statements rule)
Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review) (view evidence in light most favorable to prosecution)