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24-P-1472 Appeals Court
COMMONWEALTH vs. FREDERICK PINNEY.
No. 24-P-1472.
Hampden. April 3, 2026. – September 2, 2026.
Present: Grant, Walsh, & Brennan, JJ.
Homicide. Constitutional Law, Confrontation of witnesses.
Practice, Criminal, Required finding, Confrontation of witnesses, Motion to suppress, Instructions to jury. Evidence, Buccal swab. Deoxyribonucleic Acid.
Indictment found and returned in the Superior Court Department on April 29, 2014.
A pretrial motion to suppress evidence was heard by Edward J. McDonough, Jr., and the case was tried before Michael K. Callan, J.
Luke Rosseel for the defendant. William Thomas Joyce, Assistant District Attorney, for the Commonwealth.
WALSH, J. On March 23, 2014, TayClair Moore was found
deceased in the defendant's bedroom. The defendant was arrested
shortly thereafter and charged with murder in the first degree.
His first trial ended in a mistrial, and he was convicted of
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involuntary manslaughter after a second trial. The defendant now appeals from that conviction, asserting, among other things, that his confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights were violated by the admission of opinions from substitute analysts whose testimony heavily relied on the report of an absent analyst, concerning deoxyribonucleic acid (DNA) testing on evidence recovered from the scene. The Commonwealth concedes, and we agree, that the testimony was admitted in error. Because we further conclude that the admission of the evidence was not harmless beyond a reasonable doubt, we are compelled to vacate the defendant's conviction.
Background.1 1. Procedural history. The lengthy history of this case began in April 2014, when the defendant was indicted for the murder of Moore. His first trial, which took place in early 2016, ended in a mistrial caused by juror misconduct during deliberations.
In May 2018, prior to commencement of his second trial, the defendant filed a motion to suppress statements he had made to
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the police at his house and during an interrogation at the police station shortly after the discovery of Moore's body. Following an evidentiary hearing, a judge allowed the defendant's motion, finding that he had been subjected to custodial interrogation before being advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). In an order denying the Commonwealth's subsequent motion to reconsider, the judge clarified that the suppression order did not apply to a buccal swab that the defendant had voluntarily provided.
In May 2020, we affirmed the suppression order to the extent it suppressed the statements the defendant made at the police station, but we reversed the order suppressing statements the defendant made at his house. We also concluded that the defendant's buccal swab should have been suppressed as the fruit of an illegal arrest. The Commonwealth filed a new motion to compel the defendant to provide a buccal swab (second buccal swab), which a second motion judge allowed in October 2020. The defendant's subsequent motions to reconsider that order and to suppress the second buccal swab were unsuccessful.
The defendant's second trial was held over the course of eleven days in February and March 2023. On March 3, 2023, the jury returned a verdict finding the defendant guilty of involuntary manslaughter. The defendant received a sentence of
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from nine to ten years in State prison, and this appeal followed.
2. Factual background. a. Events leading up to Moore's death. On Saturday, March 22, 2014, Moore attended festivities taking place in the area surrounding the Holyoke Saint Patrick's Day road race with her boyfriend, Christopher Podgurski. Podgurski and the defendant worked together in construction and had known each other for several years. Just a few days earlier, Podgurski and Moore had moved from the Holyoke home of Podgurski's mother into the defendant's two-bedroom home in Springfield (Springfield residence).
At trial, Podgurski testified that he and Moore arrived in downtown Holyoke for the road race festivities around noon and spent two to three hours drinking alcohol and using marijuana and cocaine before meeting up with the defendant. After they met up, the defendant stated that he "was having an anxiety attack," which prompted the defendant, Podgurski, and Moore to travel to the home of Podgurski's mother, where they retrieved a prescription bottle of lorazepam and used cocaine. They later returned to the race area, where Podgurski provided the defendant with additional cocaine.
Podgurski testified that he asked the defendant to drive Moore home at approximately 3:30 P.M., giving him "a little bit of cocaine" in exchange. Podgurski gave differing explanations
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for this request, including that the next day was a "big day" because he and Moore would be celebrating their ten-year anniversary and attending the Holyoke Saint Patrick's Day parade, that Moore "wanted to go home" because she was intoxicated, and that he did not want to be around Moore because she had an upcoming drug test. Podgurski nonetheless acknowledged that he and Moore had already used cocaine earlier that day and that he had purchased ten bags of cocaine for the couple's anniversary celebration.
Podgurski reported that the defendant and Moore left, and he spent the rest of the day drinking alcohol and watching basketball, first at a friend's house and later at a bar. Cell phone records reflected communications between Moore and Podgurski that evening, including a 9:24 P.M. message from Moore stating, "I don't want you near me tonight"; a 10:28 P.M. message from Moore stating, "I love you baby" -- to which Podgurski responded, "Love u too"; two messages from Moore at 11:23 P.M. stating "I want to have some sex is that possible" and, "I am so proud to be your girl"; and two minutes later, a message from Moore that just said, "Hello." Podgurski stated that his cell phone battery died shortly after the last time he spoke with Moore, which was at approximately 10:30 or 11 P.M., when she called to say that she was going to bed and did not need him to bring food home. Moore's cell phone records also
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reflected numerous outgoing calls to Podgurski during the same period.
Podgurski testified that after leaving a bar at approximately 2 A.M on Sunday March 23, 2014, he visited his friend, Michael Ford; smoked marijuana with Ford; and then drove to his mother's nearby residence and fell asleep at approximately 3:30 A.M. Ford testified that Podgurski had indeed stopped by that night around 2 A.M. and stayed for approximately one-half hour. Ford stated that Podgurski appeared to have had "a couple of beers," but did not seem intoxicated.
Another friend of Podgurski, Robert Keitt, testified that he attempted to call Podgurski's cell phone at approximately 5 A.M. Sunday morning. When that call went to voicemail, Keitt called the home telephone of Podgurski's parents. Keitt testified that Podgurski's mother answered and told him that Podgurski was asleep. Keitt stated that he heard Podgurski snoring in the background and that Podgurski sounded "pretty drunk" when he came to the telephone.
Cell phone records reflected several text messages that the defendant had sent to Podgurski and Moore during the early morning hours of March 23, 2014. At 1:32 A.M., the defendant texted Moore, "U still up? I got a rip if you want, I'm anxious and can't sleep." At 4:25 A.M., the defendant sent Podgurski a
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text message stating "[t]he pill finally helped, thanks goidnight [sic]," followed one minute later by a message that said, "[g]o got Clair nice n call, she's fucked up and ain't saying ad work man [sic]."
b. Discovery of Moore's body. Podgurski testified that he returned to the Springfield residence at approximately 11:30 A.M. on March 23, 2014. Upon entering the home, he called out for Moore before going upstairs to the bedroom they shared, where he found Moore's cell phone and glasses. Podgurski stated that he answered an incoming call on Moore's cell phone and spoke to Moore's nephew, although the nephew testified that he had heard only breathing on the other end of the line. While he was upstairs, Podgurski could hear the defendant's snoring in his bedroom. After the call from Moore's nephew, Podgurski said that he went back downstairs, rolled a "blunt," and charged his cell phone in the kitchen while using Moore's cell phone to call a friend. After he finished smoking the blunt, Podgurski went back upstairs.
Podgurski gave differing accounts of the sequence of events that followed. In one version, Podgurski testified that he knocked on the defendant's door, stating, "[c]ome on, we got to go to work." He asked the defendant if he had seen Moore, and from behind the closed door, the defendant said that Moore "got mad and . . . left." After about fifteen to twenty minutes, the
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defendant opened the door with a knife in his hand. Podgurski alternately testified that he first interacted with the defendant while Podgurski was standing in the upstairs hallway and the defendant "snuck out" of his bedroom to use the bathroom, closing his bedroom door behind him. In this telling, Podgurski told the defendant that he was "not leaving [the] house" until he made sure Moore was not there. This prompted the defendant to go downstairs to retrieve a knife and a set of keys that he used to open his bedroom door. In both iterations, Podgurski testified that, as the defendant opened his bedroom door, the defendant said, "check it out, check it out."
Once the bedroom door was open, Podgurski saw "a pair of brown legs on the bottom of the bed." He "pretended like [he] didn't see anything" and went outside to call police.
Police captain Richard LaBelle testified that he responded to the Springfield residence at approximately 12:44 P.M. on Sunday March 23, 2014, and encountered Podgurski outside near the driveway. LaBelle testified that Podgurski seemed "very excited" and eager to get LaBelle's attention. LaBelle entered the residence and found the defendant in the kitchen. He saw blood on the floor and superficial lacerations on the defendant's arms and neck. The defendant told LaBelle that no one else was inside the home.
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After additional officers arrived, police conducted a search of the residence. Because the defendant's bedroom door was locked, officers forced entry and discovered Moore lying unclothed and unresponsive on the floor beside the bed. LaBelle noticed a green cord hanging off the headboard "right away." Emergency medical technicians arrived at the scene shortly thereafter and determined that Moore was deceased.
Two days later, police executed a search warrant at the Springfield residence and recovered one-half of a green electrical cord, as well as several belts and a drawstring, from a dresser drawer in the defendant's bedroom.
c. Medical evidence. Dr. Anna McDonald, a forensic pathologist, performed an autopsy of Moore's body. Dr. McDonald testified that Moore's injuries were concentrated in her head and neck area, including linear abrasions on the right side of her neck, petechial hemorrhaging on her lips and neck, hemorrhaging within her neck muscles, and hemorrhages indicative of blunt force injury on the back of Moore's head. Based on the linear abrasions, petechiae, and hemorrhaging on Moore's neck, Dr. McDonald concluded that Moore's cause of death was asphyxia caused by ligature strangulation.
Dr. McDonald also noted "foamy secretions from [Moore's]
nose," which she testified are "commonly seen in drug related" deaths. Toxicology testing revealed that Suboxone, cocaine,
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citalopram, marijuana, and alcohol were present in Moore's system at the time of her death. Dr. McDonald nonetheless opined that Moore's injuries "surpassed any sort of toxicologic evidence that may or may not be present."
Dr. McDonald further testified that if a cloth belt recovered from the defendant's dresser drawer were "folded a particular way," it "could correlate potentially with the abrasions" on Moore's neck. She similarly opined that the drawstring recovered from the defendant's dresser could potentially correspond to Moore's neck injuries if it had been "applied twice" or "simply rolled up the neck." Dr. McDonald additionally testified that, because of the presence of "too many variables," the time of Moore's death was an "open question."
Dr. Jonathan Arden, a forensic pathologist retained by the defense, disagreed with Dr. McDonald's conclusions and testified that the medical findings were not definitive of fatal strangulation and were more consistent with mixed drug intoxication.
d. DNA evidence. The results of DNA testing were presented though the testimony of two substitute experts, Kathleen Gould and Krista Lungren, employees of the Massachusetts State police crime laboratory (crime lab), who
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relied extensively on reports generated by Kira Snyder, a former crime lab employee who conducted the original DNA testing.
Gould testified that a red-brown stain found below Moore's right breast produced a DNA profile consistent with the defendant's DNA profile, and that the expected frequency of that profile is approximately one in 665 quadrillion unrelated individuals. Gould also testified that a swab of the green cord recovered from the headboard of the defendant's bed contained a mixed DNA profile that included Podgurski and excluded both Moore and the defendant. The DNA profile generated from scrapings of skin from under the fingernails of Moore's left hand was also consistent with Podgurski's profile and excluded the defendant.2 Lungren testified about the DNA profiles generated from the belts and drawstring recovered from the defendant's dresser drawer. Lungren testified that testing of the cloth belt that Dr. McDonald identified as a potential ligature contained a mixed DNA profile consistent with Moore and the defendant as possible contributors.3 Specifically, Lungren opined that it was
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"730 quadrillion times more likely that the DNA profile obtained" was from Moore and two unknown individuals than from three unknown individuals unrelated to Moore, and 4.7 million times more likely that one of the DNA profiles came from the defendant and two unknown individuals than from three unknown individuals not related to the defendant. Testing of the drawstring similarly yielded a mixed DNA profile that was "550,000 times more likely" to have come from Moore and two unknown individuals than from three unknown individuals unrelated to Moore.
Discussion. 1. Sufficiency of the evidence. The defendant first challenges the sufficiency of the evidence underlying his conviction, asserting that the jury's decision to convict him of involuntary manslaughter rather than murder demonstrates that they rejected the Commonwealth's theory that Moore died from ligature strangulation.4 The defendant argues that the only remaining cause of death supported by the evidence was a drug overdose, and the Commonwealth did not establish the additional facts necessary to impose criminal liability for an
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overdose death. See Commonwealth v. Carrillo, 483 Mass. 269, 274 (2019). When reviewing a claim of insufficient evidence, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Such inferences "need only be reasonable and possible; [they] need not be necessary or inescapable." Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014), S.C., 480 Mass. 231, cert. denied, 586 U.S. 1054 (2018).
"A verdict of involuntary manslaughter is warranted 'only where the defendant caused an unintentional death (1) during the commission of an act amounting to wanton or reckless conduct, or (2) during the commission of a battery.'" Commonwealth v. Degro, 432 Mass. 319, 331 (2000), quoting Commonwealth v. Brooks, 422 Mass. 574, 578 (1996). Under the first theory, the Commonwealth was required to show "intentional conduct that create[s] a high degree of likelihood that substantial harm will result to another person." Commonwealth v. Ferguson, 497 Mass. 199, 206 (2026), quoting Commonwealth v. O'Brien, 494 Mass. 288, 297 (2024). Under the second theory, the Commonwealth was required to show a battery "which the defendant knew or should
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have known endangered human life." Commonwealth v. Moseley, 483 Mass. 295, 303 (2019), quoting Commonwealth v. Tague, 434 Mass. 510, 518 (2001), cert. denied, 534 U.S. 1146 (2002).
Viewing the evidence in the light most favorable to the Commonwealth, the jury could have reasonably concluded that the defendant engaged in conduct that involved a high degree of likelihood of substantial harm and that such conduct caused Moore's death; and, for that matter, that he committed a battery that he knew or should have known endangered human life. Cell phone records and Podgurski's testimony permitted an inference that the defendant was alone with Moore during the time period when she died. Dr. McDonald's testimony established that Moore died as a result of ligature strangulation, an act that inherently involves a risk of fatal injury. The jury could also rely on forensic evidence linking the defendant and Moore to the belt identified as the likely instrument of death. The drop of the defendant's blood found below Moore's right breast further supports an inference of close physical contact between the defendant and Moore at or near Moore's time of death.5 Finally, the jury could consider evidence of the defendant's conduct
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after Moore's death as indicative of consciousness of guilt. The defendant told Podgurski that Moore got mad and left, and he was reluctant to open his bedroom door while Moore's body lay inside, even locking it before police arrived.6 The defendant's reliance on Moseley, 483 Mass. at 303, in support of his contention that ligature strangulation, if proven, establishes an intentional killing rather than an unintentional death, is unavailing. In Moseley, supra, the Supreme Judicial Court considered whether an involuntary manslaughter instruction was warranted where the evidence established that the defendant had pulled "a ligature around the victim's neck" for several minutes, "until the victim had stopped struggling." The court concluded that an involuntary manslaughter instruction was unwarranted because the defendant's conduct "created a 'plain and strong likelihood that death would follow.'" Id., quoting Degro, 432 Mass. at 331. The court in Moseley, supra, did not hold that ligature strangulation establishes an intentional killing as a matter of law, nor did
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it create a presumption regarding a defendant's mental state.7 Rather, it addressed only whether the evidence in that case supported an involuntary manslaughter instruction.
Although the jury were instructed to return a verdict on the highest offense proved beyond a reasonable doubt, that the jury found the defendant guilty of involuntary manslaughter does not necessarily warrant the inference that the jury rejected the ligature strangulation theory, as the defendant asserts. The jury were free to credit the evidence that Moore died from ligature strangulation while harboring reasonable doubt that the Commonwealth proved the mental state required to convict the defendant of murder.
To that end, there was ample evidence from which the jury could have found that the defendant was significantly intoxicated and impaired at the time of Moore's death. Based on that evidence, the jury could have concluded that the Commonwealth had failed to meet its burden to establish that the defendant was capable of forming the intent or knowledge to commit murder while nevertheless finding that he engaged in
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conduct that created a high degree of substantial harm.8 See Commonwealth v. Salazar, 481 Mass. 105, 114 (2018), quoting Commonwealth v. Carter, 475 Mass. 512, 524 (2016) ("Because the defendant's intoxication may have been probative of a lack of capacity to formulate the intent necessary to prove murder by deliberate premeditation, the jury could have found the defendant guilty of a lesser offense . . . had they determined his level of intoxication to be 'debilitating'"); Commonwealth v. Montrond, 477 Mass. 127, 134 (2017) (evidence of intoxication "could have undercut the Commonwealth's theory that the shooting was intentional"); Commonwealth v. Sama, 411 Mass. 293, 298 (1991) ("Under the third prong of malice, the Commonwealth must establish the guilty knowledge of the defendant beyond a reasonable doubt, and evidence of a defendant's intoxication should be considered by the jury"). Additionally, the
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Commonwealth did not present any evidence of motive or animosity between Moore and the defendant. Although not dispositive, the jury could consider the apparent absence of motive, together with the evidence of severe intoxication, in their determination whether the Commonwealth had proved an intentional killing beyond a reasonable doubt. See Commonwealth v. McCauley, 355 Mass. 554, 560-561 (1969) (to determine whether homicide was unintentional rather than intentional, jury could consider "the degree and nature of the acquaintance" between victim and defendant, "the relationship of amiability to the time of the shooting, and the total absence of any reason for hostility" between them).
2. Substitute analysts. Next, the defendant contends that the Commonwealth violated his confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights by eliciting testimony from substitute analysts regarding DNA testing performed by a nontestifying analyst. At the time of the defendant's trial, controlling precedent permitted such testimony. See Commonwealth v. Greineder, 464 Mass. 580, 603, cert. denied, 571 U.S. 865 (2013). However, while this appeal was pending, the Supreme Judicial Court ruled in Commonwealth v. Gordon, 496 Mass. 554, 574-575 (2025), that testimony from a substitute expert that depends on the truth of testimonial hearsay from a
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nontestifying expert violates the confrontation clause. The Supreme Judicial Court stated that this result was dictated by the decision of the United States Supreme Court in Smith v. Arizona, 602 U.S. 779 (2024), and instructed that its holding "applie[d] prospectively and retroactively to those cases that were active or pending on direct review as of the date of the issuance of Smith." Gordon, supra at 587-588. The Commonwealth concedes -- and based on our independent review of the evidence we agree -- that the testimony of the substitute analysts, Gould and Lungren, depended on the findings and report of the original analyst, Snyder, who did not testify.9 Accordingly, their testimony violated the defendant's confrontation rights.
"Where, as here, the defendant's rights were preserved through objection at trial, . . . 'we evaluate the admission of constitutionally proscribed evidence to determine whether it was harmless beyond a reasonable doubt.'" Gordon, 496 Mass. at 584- 585, quoting Commonwealth v. Rand, 487 Mass. 811, 814-815 (2021). "The 'essential question' in analyzing harmlessness
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beyond a reasonable doubt is 'whether the error had, or might have had, an effect on the [fact finder] and whether the error contributed to or might have contributed to the [findings of guilty]." Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010), quoting Commonwealth v. Perrot, 407 Mass. 539, 549 (1990).
"As an appellate court, we ask whether 'on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the [fact finder] and did not contribute to the [fact finder's findings]."
Vasquez, supra, quoting Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). In conducting this analysis, "we examine factors such as 'the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.'"
Commonwealth v. Ramsey, 466 Mass. 489, 494 (2013), quoting Commonwealth v. Mendes, 463 Mass. 353, 359 (2012). The Commonwealth bears the burden of demonstrating that the error was harmless, and we "resolve all ambiguities and doubts in favor of the defendant." Gordon, supra at 585, quoting Commonwealth v. Vardinski, 438 Mass. 444, 452-453 (2003).
At trial, the Commonwealth proceeded on the theory that the defendant was despondent about his failing marriage, and after a day of drinking and using cocaine he "snapped" and strangled
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Moore before attempting to take his own life.10 The defendant's theory was that Podgurski killed Moore and later moved Moore's body into the defendant's bedroom while he was sleeping. The testimony of the substitute analysts provided critical forensic support for the Commonwealth's theory. The central issues at trial were whether Moore died from ligature strangulation and, if so, who caused her death. The challenged DNA evidence bore directly on both issues. Through the testimony of the substitute analysts, the Commonwealth established that a drop of blood recovered from Moore's body matched the defendant's DNA profile; that a belt identified as a potential ligature contained DNA consistent with both the defendant and Moore; that a drawstring identified as a potential ligature contained DNA consistent with Moore; and that Podgurski's DNA was not on either item. The substitute analysts' testimony therefore provided scientific support for the Commonwealth's contention that Moore died by ligature strangulation at the hands of the defendant rather than Podgurski.
The Commonwealth emphasized the significance of the DNA evidence throughout trial. During his opening statement, the prosecutor expressly stated that DNA evidence would show that
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the defendant's blood was found on Moore's body, that DNA consistent with the defendant and Moore was found on a potential ligature, and that Podgurski's DNA was absent from the belt and drawstring that were identified as potential ligatures. The prosecutor made the same points during his closing argument, stressing that the DNA evidence was proof that the defendant, rather than Podgurski, killed Moore.
The DNA evidence also provided the most significant evidentiary corroboration of the Commonwealth's theory, which otherwise relied principally on the testimony of Podgurski, whose credibility was subject to substantial impeachment. Among other things, evidence was presented that Podgurski testified pursuant to an immunity agreement bearing on his potential criminal exposure and therefore had an incentive to minimize his personal involvement. The jury also heard evidence that Podgurski had strangled Moore on several occasions over the course of their ten-year relationship, suggesting a possible motive to deflect suspicion and undermining the objectivity of his account by showing he had previously engaged in conduct similar to that theorized to have caused Moore's death. The jury could properly consider this evidence in weighing Podgurski's testimony, rendering forensic corroboration of his account particularly significant.
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On this record, we cannot conclude beyond a reasonable doubt that the testimony of substitute analysts did not contribute to the verdict. Although the DNA evidence was not, by itself, dispositive of Moore's cause of death or the identity of the person who caused it, it provided objective forensic corroboration of the Commonwealth's theory of the case and directly countered the defense's contention that Podgurski was the perpetrator. Given the significance of that evidence to the Commonwealth's case-in-chief, the prosecutor's repeated emphasis on it during opening and closing arguments, and the shortcomings of Podgurski's testimony, the properly admitted evidence was not so overwhelming that the erroneously admitted testimony could not have influenced the jury's resolution of the contested issues. See Tyree, 455 Mass. at 704 n.44. For these reasons, we cannot say that the erroneously admitted evidence was harmless beyond a reasonable doubt. Accordingly, the defendant's conviction must be vacated. We will address the other claims the defendant has raised, as they are likely to recur in the event of a retrial.
3. Buccal swab. As set forth above, before the defendant's second trial, we affirmed an order suppressing statements the defendant had made during a custodial police interrogation; we further held that the buccal swab the defendant had consented to during the same interrogation should
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have also been suppressed. See Commonwealth v. Pinney, 97 Mass. App. Ct. 392, 393 (2020). We explained, inter alia, that although the motion judge had stated it was "probable" the Commonwealth would have eventually obtained the buccal swab, the record did not support a conclusion that discovery was "certain as a practical matter," insofar as there was no prior motion before the judge explaining the buccal swab's relevance or basis for obtaining a sample independent of the unlawful collection. Id. at 401-402.
On remand, the Commonwealth filed a new motion to compel a DNA sample, which a second motion judge granted. The defendant's subsequent attempts to suppress the second buccal swab were unsuccessful. The defendant argues that the second buccal swab should have been suppressed, asserting that the Commonwealth's request for a second buccal swab was tainted by its exposure to the first, illegally obtained swab. We are not persuaded.
"The proper inquiry is not whether the prior illegality can be undone, but whether the subsequently seized evidence has been obtained 'by means sufficiently distinguishable to be purged of the primary taint.'" Commonwealth v. Carvajal, 496 Mass. 490, 495-496 (2025), quoting Commonwealth v. Frodyma, 393 Mass. 438, 441 (1984). The defendant suggests that because the Commonwealth possessed and tested the initial, unlawfully
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obtained buccal swab, it used knowledge gained from the suppressed sample to justify seeking the second swab. This contention, however, is belied by the record, which reveals that the Commonwealth's second motion to compel rested on separate evidentiary bases, including DNA profiles generated from other sources, results from a sexual assault evidence kit, the presence of both the defendant and Podgurski at the crime scene, the presence of wounds on both the defendant and Moore, and the presence of blood in common areas of the Springfield residence.
The defendant's additional arguments, concerning the timing of the motion to compel, the sequence of the investigation, and the Commonwealth's continued possession of the suppressed swab, do not alter this conclusion. "[T]he constitutional exclusion of one item of evidence does not bar the Commonwealth from later obtaining similar evidence through lawful means, provided it is supported by an independent and sufficient evidentiary basis. . . . [I]t bars only the use of evidence that exploits that initial illegality." Carvajal, 496 Mass. at 497. This is not, as the defendant suggests, a case where the challenged evidence derived directly from unlawful police conduct. See Commonwealth v. Lugo, 102 Mass. App. Ct. 170, 181 (2023) (illegally obtained statements should be suppressed where "misconduct was committed expressly to acquire the statements, and the conduct, more importantly, constituted a 'protocol' of the Springfield police
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department that promoted unconstitutional investigative detentions"). Because the second buccal swab was obtained pursuant to a court order supported by independent probable cause, untainted by the prior illegality, the exclusionary rule does not require its suppression.
4. Additional evidentiary and trial errors. We last turn to the defendant's arguments challenging (1) the trial judge's exclusion of a September 2015 e-mail message that the trial prosecutor sent to the Massachusetts Office of the Chief Medical Examiner (e-mail); (2) the denial of the defendant's motion to disqualify the trial prosecutor; and (3) the trial judge's failure to recuse himself.
a. Exclusion of the e-mail. At trial, the defendant sought to introduce the e-mail to show bias and impeach Dr. McDonald's testimony. The e-mail, sent by the trial prosecutor to the attention of a different medical examiner11 and later found in Dr. McDonald's case file at the chief medical examiner's office, stated in relevant part:
"Defense is going to point to the fact that boyfriend and victim have a history of domestic incidents (3 prior charges that coincidentally are all manual strangulation cases). Also, DNA from victim's fingernail scrapings comes back to boyfriend, not the defendant. There is also a potential ligature in defendant's bedroom (a green electrical cord tied to his headboard) which has boyfriend's DNA on it but not the defendant's or victims 11The record is unclear as to the precise nature of the other medical examiner's involvement in the autopsy of Moore.
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[sic]. We have not been able to identify what instrument may have been used to kill victim. . . . I would like to establish that the marks on victim's neck are from a ligature as opposed to being from hands." Although the e-mail was not admitted in evidence, the trial judge permitted defense counsel to cross-examine Dr. McDonald about it. She testified that she had seen it, and sometime thereafter concluded Moore's cause of death was ligature strangulation. Having permitted cross-examination regarding the e-mail, the judge could properly exclude the e-mail itself. See Commonwealth v. Allison, 434 Mass. 670, 681 (2001), quoting Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995) (where bias has been established, additional evidence of bias may be excluded as redundant). The trial judge could have also properly concluded that the e-mail was of little value where there was no evidence that Dr. McDonald relied on the e-mail (1) in forming her opinions, and (2) when she provided an independent evidentiary foundation for her conclusions, including determining Moore's cause of death based on autopsy findings such as the patterns and distribution of Moore's neck injuries. See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187 (2013) (trial judge has discretion to exclude evidence "of no more than marginal value to the party conducting the cross-examination").
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Because the jury were presented with the substance of the e-mail and objective bases for Dr. McDonald's conclusions, the trial judge acted within his discretion in concluding that the e-mail itself was not necessary for the jury to assess the reliability of her conclusions. See Commonwealth v. Souza, 492 Mass. 615, 626 (2023) (decision to admit or exclude evidence reviewed for abuse of discretion).
b. Motion to disqualify. Next, the defendant argues that "[b]y failing to record the interviews with Podgurski at which the other witnesses' memories faltered," and by sending the 2015 e-mail to the medical examiner's office, the trial prosecutor "effectively made himself a material witness." The defendant refers to two meetings with Podgurski, on September 15, 2015, and December 9, 2015, that the prosecutor failed to record despite defense counsel's request for him to do so. After each meeting, however, the prosecutor sent defense counsel a summary. At trial, Podgurski and a detective who was present at the meetings either did not recall portions of the meetings or remembered things differently. The defendant argues that the trial judge should have disqualified the prosecutor and allowed the defendant to call him as a witness, and that the trial judge further erred by excluding the detective's notes from evidence.
Where a defendant seeks to call the prosecutor as a witness, "he must make a satisfactory offer of proof as to the
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need for the prosecutor's testimony" and "show that the prosecutor had personal knowledge of relevant factors bearing on the credibility of [other witnesses] that could not be elicited by other means." Commonwealth v. Blaikie, 375 Mass. 601, 609 (1978). The defendant has failed to make that showing here. Defense counsel extensively cross-examined Dr. McDonald regarding the e-mail and questioned Podgurski and the detective about the interviews and their recollections of what was said. More significantly, the defendant has not identified what material testimony the prosecutor possessed that was unavailable through those witnesses. In these circumstances, the trial judge acted within his discretion in declining to disqualify the prosecutor or allow the defendant to call him as a witness.
c. Motion to recuse. The defendant last argues that the trial judge improperly denied his motion seeking the judge's recusal. This argument lacks merit. The defendant has neither established that the trial judge failed to consider whether he could "remain impartial under the circumstances," nor shown that "a disinterested observer, informed of all the circumstances, [would] reasonably believe that the judge's impartiality may have been compromised." Commonwealth v. Mitchell, 496 Mass. 66, 80 (2025), quoting Commonwealth v. Cousin, 484 Mass. 1042, 1045- 1046 (2020). The defendant's speculative assertion that the trial judge improperly rushed the case to trial following a
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public statement by the district attorney for the Hampden District, regarding the defendant's pretrial release and the delays in retrying him, not only lacks record support but is undermined by the fact that the trial judge rebuked the district attorney's statement in open court during the defendant's final pretrial conference.12 Accordingly, there was no error.
Conclusion. The judgment is vacated, the verdict is set aside, and the case is remanded to the Superior Court to allow the Commonwealth to retry the defendant if it so chooses.
So ordered.
12The defendant also claims for the first time on appeal that several adverse evidentiary rulings suggest the trial judge was biased against him. This claim is without merit, as "[t]he mere fact that a party suffers adverse rulings during litigation does not establish lack of judicial impartiality." Clark v. Clark, 47 Mass. App. Ct. 737, 739 (1999). Insofar as the defendant disagreed with certain rulings, those rulings were reviewable through the ordinary appellate process.