Commonwealth v. Santana, 477 Mass. 610

Background

On August 25, 2004 Rafael Castro was killed in a Lawrence apartment during a home invasion; Norma Cedeno survived and identified multiple assailants and described torture/threats during the incident.
Physical evidence recovered: rolls/pieces of duct tape (one with blood), a torn tape piece from bathroom trash with a DNA mixture matching Santana as the major contributor, and a latent fingerprint on a roll matched to Joonel Garcia.
Santana (defendant) spoke to his probation officer twice offering information about the shooting; he was later interviewed in jail on March 4, 2005 by Trooper LaBarge with Detective Cueva translating; parts of the interview were recorded; Santana waived Miranda in Spanish but asked that statements not be used in court.
At trial the jury convicted Santana of first‑degree murder (extreme atrocity or cruelty and felony‑murder with home invasion/armed burglary, assault on occupant predicates).
On appeal Santana challenged denial of suppression (voluntariness), admission of various hearsay/expert substitute testimony, denial of a DiGiambattista instruction for incomplete recording, denial of mistrial after repeated references to other arrests, and certain prosecutor closing remarks.

Issues

Issue	Commonwealth's Argument	Santana's Argument	Held
Voluntariness of March 4, 2005 statements (motion to suppress)	Warnings in Spanish, oral/written Miranda waiver, and explicit statements that cooperation could be shared with prosecutor/court dissipated any promise of confidentiality; totality shows voluntariness	Initial request that statements not be used in court plus imperfect/incomplete translation by Cueva rendered any assurance of confidentiality coercive and statements involuntary	Affirmed: statement voluntary; Miranda warnings and subsequent translations dispelled confidentiality assurance; suppression not required
DiGiambattista jury instruction for incomplete audio recording	Recording was incomplete in part because defendant requested it stopped, but DiGiambattista instruction not required here	Requested instruction because part of custodial interrogation was not fully audiotaped	Error to deny instruction, but error was nonprejudicial given partly exculpatory statements and defense strategy; conviction stands
Admission of hearsay (trooper testimony re: "bite mark" and accusation that defendant was in apartment)	Statements admissible for context and inferences; DNA and torn‑tape evidence supported prosecutor inferences about bite and transfer	Bite‑mark remark was hearsay (and testimonial); trooper's accusatory statements violated confrontation/hearsay rules	Bite‑mark remark was inadmissible hearsay but harmless (no miscarriage of justice); trooper's accusation admitted for context only (nonhearsay purpose) with limiting instruction, so no confrontation violation
Substitute medical examiner & expert reliance on nontestifying examiner's drawings	Substitute may rely on autopsy report/photographs and give independent opinion; witness cross‑examinable on foundation	Use of drawings by nontestifying pathologist deprived Santana of meaningful cross‑examination and violated Crawford/Greineder principles	Admission consistent with Reavis/Greineder because substitute offered independent opinion and was cross‑examined; limited stricken testimony handled appropriately

Key Cases Cited

Commonwealth v. DiGiambattista, 442 Mass. 423 (judicial instruction required when custodial interrogation not fully audiotaped)
Commonwealth v. Tremblay, 460 Mass. 199 (voluntariness standard and psychological coercion principles)
Commonwealth v. Baye, 462 Mass. 246 (assurances of confidentiality often coercive; totality analysis)
Commonwealth v. Reavis, 465 Mass. 875 (scope of substitute medical examiner testimony)
Commonwealth v. Greineder, 464 Mass. 580 (limits on substitute pathologist reliance on nontestifying examiner's findings and cross‑examination requirement)
Commonwealth v. Melo, 472 Mass. 278 (appellate review standards for mixed findings of fact and documentary evidence)