NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-997
COMMONWEALTH
vs.
WARNER DONALDSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On January 26, 2024, after a jury trial, the defendant was
convicted of armed and masked robbery in violation of G. L.
c. 265, § 17, assault by means of a dangerous weapon in
violation of G. L. c. 265, § 15B (b), and larceny under $1,200
in violation of G. L. c. 266, § 30 (1).1 Following his
conviction, the defendant brought this appeal, contending that
(1) the defendant's motion to suppress the search warrant for
his home should have been granted, (2) the defendant's motion to
dismiss the indictments should have been granted, (3) the
1The defendant was sentenced to seventeen to twenty-three years in State prison for count one, with a five-to-seven-year sentence for count two and a one-year sentence for count three, each to run concurrently with count one. admission of canine tracking and deoxyribonucleic acid (DNA)
evidence was error, (4) the prosecutor deliberately misled the
jury during closing arguments, and (5) the trial judge erred in
denying defense counsel's motion to withdraw and the defendant
received ineffective assistance of counsel as a result of the
denial. We affirm and address each claim in turn.
Background. 1. The robbery and investigation. We
summarize the facts as found by the motion judge, supplemented
with "evidence from the record that is uncontroverted and
undisputed and where the judge explicitly or implicitly credited
the witness's testimony" (citation omitted). Commonwealth v.
Garner, 490 Mass. 90, 94 (2022). On February 28, 2021, shortly
after 8 P.M., a person wearing all black clothing and a black
and white face mask robbed the Kwik Pik convenience store.
After the robbery, the cashier notified the manager, who was
present but in the store's basement office at the time of the
robbery. The manager then waited fifteen minutes before calling
the Springfield police. The manager then reviewed security
camera footage of the robbery until police arrived.
Police arrived at the store at 8:42 P.M., and an officer
interviewed the cashier, who said that the robber wore a black
hoodie, black pants, black sneakers, latex gloves, and wore a
black and white mask covering everything except his eyes.
Detective Adam Provost interviewed the manager, who said, "I was
2 not in here," when the robbery occurred, but that he recognized
the robber based on the way he walked, his mannerisms, and the
sound of his voice. The manager also showed police the store's
silent security recordings of the robbery and of previous days
when the person he believed to be the suspect came to the store.
He also drove to the defendant's nearby address to confirm where
the person he suspected to be the robber lived while the
officers waited in the store. A police canine independently
tracked a route from the store to the same address where the
manager suspected the robber lived.2
The manager, but not the cashier, was taken back to the
police station where he was interviewed on camera and shown a
photograph array by Sergeant Eric Podgurski. The interview was
attended by Detective Provost. The manager immediately picked
out a picture of the defendant as the person who robbed the
store. During the interview, Podgurski spoke to the manager as
though he was the one who had been robbed and the manager
seemingly answered questions as though he had been present in
2 The grand jury heard testimony that Officer John Ruyffelaert, the canine police officer supervising the police dog, was not aware of the information provided by the manager and the clerk. The grand jury also viewed police body camera video footage. We note that the motion judge, in denying the defendant's motion to dismiss, agreed with the defendant that the video recording "does not show the dog tracking directly to" the address. At trial, the video recording showed the dog go off alert and begin chasing a rabbit at the address.
3 the room during the robbery.3 Following the interview, the
police applied for a search warrant for the defendant's home.
The police subsequently searched the defendant's home,
recovering black pants, a black jacket, black sneakers, black
gloves, a black and white mask, and two BB guns. The items were
submitted for DNA analysis.
A grand jury indicted the defendant on July 6, 2021. After
the defendant unsuccessfully moved to suppress evidence obtained
from the search of his home, and unsuccessfully moved to dismiss
the indictments, the matter proceeded to trial.
2. The trial. On the first day of trial, defense counsel
moved to withdraw from representing the defendant.4 The trial
judge denied the motion. At trial, the prosecution's evidence
included, inter alia, the canine tracking evidence and DNA
evidence indicating that the defendant's DNA was found inside
the black and white mask seized from the defendant's home.
3 For example, when Podgurski stated, "You're the manager at the Kwik Pik on Boston Road. This male went to your store this evening, had a handgun to you," the manager answered, "Yeah." Podgurski then asked, "And what did he say to you?" The manager answered, "Give him all the money."
4 The attorney stated that she was unable to control the defendant's outbursts, the defendant was not listening to her when she talked to him, and the defendant was swearing at her. Earlier during voir dire, the defendant held up a piece of paper that said, "they are liars," in front of the potential jurors.
4 Defense counsel did not object to the admission of either the
canine or DNA evidence.
The defendant testified in his own defense and during his
cross-examination, he testified that he would not have "robb[ed]
a store for $800 when [he] was making 2,000 every two weeks."
When prompted to repeat how much the store had been robbed for,
the defendant explained, "You all say it was $800." During
closing arguments, the prosecutor highlighted this exchange and
argued that she "[did]n't believe it was" a coincidence that the
defendant knew the amount stolen to be $800, implying that the
defendant knew the amount because he had in fact stolen the
money. The prosecutor also noted the strength of the DNA
evidence connecting the inside of the mask to the defendant.
Again, there was no objection from defense counsel. The jury
found the defendant guilty of all charges.
Discussion. 1. Motion to suppress. "In reviewing a
ruling on a motion to suppress evidence, we accept the judge's
subsidiary findings of fact absent clear error. . ." (citation
omitted). Commonwealth v. Daveiga, 489 Mass. 342, 346 (2022).
"We review independently the application of constitutional
principles to the facts found" (citation omitted). Id. In a
Franks hearing, such as the one held here to determine whether
suppression was warranted due to allegedly false statements in
the search warrant application, "the defendant must show by a
5 preponderance of the evidence that the false statement or
misimpression created by an omission was made either
intentionally or with reckless disregard for the truth."
Commonwealth v. Long, 454 Mass. 542, 552 (2009). See Franks v.
Delaware, 438 U.S. 154, 155-156 (1978). However, when probable
cause relies on misstatements that are the product of "good
faith but negligent conduct," the search warrant will not be
suppressed. See Commonwealth v. Nine Hundred & Ninety-Two
Dollars, 383 Mass. 764, 771-772 (1981).
Here, the defendant asserts that his motion to suppress
evidence recovered from the search of his home should have been
granted on the ground that the search warrant affidavit
intentionally or recklessly contained false statements, and
those statements were necessary to the finding of probable
cause. Namely, the defendant notes that the search warrant
affidavit states that the manager personally witnessed the
robbery and heard and recognized the robber's voice, even though
the manager was not present for the robbery itself and could not
have identified the robber's voice from the store's silent
security tapes. We are not persuaded.
The motion judge concluded that, "Although the police work
done in this investigation was less than stellar, there is no
evidence that any officer, including the affiant, knowingly or
intentionally made false statements. Nor does the evidence
6 prove the affiant's reckless disregard for the truth." We
agree. The motion judge's findings describe multiple reasons
for the police to reasonably believe the manager's account. The
manager was present at the store when the police arrived shortly
after the robbery and his account corroborated the account of
the cashier, who was present for the robbery. When police
presented the manager with a photograph array, the manager
immediately picked the picture of the defendant. The manager
showed the police the store's surveillance footage, which
further corroborated the cashier's and manager's accounts of
what happened during the robbery. The manager also drove to the
defendant's home to confirm where the man he believed was
responsible for the robbery lived, and a canine unit
independently tracked to the same address.
While the store's surveillance video recording is silent
and does not show the manager during the robbery, the police
watched the video recording only to observe the robber exiting
the store. At this juncture, it was reasonable that the police
would be focused on the appearance of the robber as opposed to
scanning the surveillance video recording for internal
contradictions in the manager's account. Additionally, while
the manager's answers during his interview with Podgurski
contradicted his earlier statement that "[he] was not in here,"
made when the police first questioned him at the store, the
7 manager had multiple opportunities to alert the police to their
apparent misapprehension that the manager was present, and did
not do so.5 At this point, the police had little reason to
believe that the manager was not answering their questions
accurately during the interview.
Given the corroborating circumstances supporting the
manager's account, we agree with the motion judge that the
defendant failed to prove by a preponderance of the evidence
that the police recklessly or intentionally included false
statements in the search warrant affidavit, and that the police
were at most negligent in preparing the affidavit. See Long,
454 Mass at 552. Because the false statements in the affidavit
are adequately attributable to good faith errors, we cannot
conclude that the motion judge erred in denying the motion to
suppress. See Nine Hundred & Ninety-Two Dollars, 383 Mass. at
771-772.
2. Grand jury motion to dismiss. In order to obtain the
dismissal of his indictments due to the alleged impairment of
the grand jury proceedings, the defendant had to prove three
elements: "(1) the Commonwealth knowingly or recklessly
5 The motion judge also noted that "the court at times had difficulty understanding what the manager said," a factor that possibly contributed to the manager's reluctance to correct police on their misapprehension.
8 presented false or deceptive evidence to the grand jury; (2) the
evidence was presented for the purpose of obtaining an
indictment; and (3) the evidence probably influenced the grand
jury's decision to indict." Commonwealth v. Silva, 455 Mass.
503, 509 (2009). When a judge decides a motion to dismiss for
impairment of the grand jury following a nonevidentiary hearing,
our review is de novo. See Commonwealth v. Barlow-Tucker, 493
Mass 197, 204 (2024).
To be sure, the Commonwealth presented misleading evidence
to the grand jury by presenting the manager's statements that he
recognized the robber from the surveillance video recording
based on the sound of his voice, and by relating an account that
the manager recognized the robber's voice during the robbery and
came out from the back of the store to see the robber
personally.
As discussed supra, however, the false statements were not
included recklessly or intentionally in the search warrant.
Likewise, the bases for asserting that the false statements were
recklessly or intentionally presented to the grand jury are
largely the same as those for believing the search warrant
recklessly or intentionally contained false statements. We
therefore agree with the motion judge that the Commonwealth did
not recklessly or knowingly present a false version of events to
the grand jury. See Silva, 455 Mass. at 509 (dismissal of
9 indictment based on impairment requires finding Commonwealth
knowingly or recklessly presented false statements). We also
agree with the motion judge that it is unlikely that the
Commonwealth intentionally presented this evidence to obtain an
indictment where the Commonwealth presented the grand jury with
both the manager's interview and the security video footage,
which the grand jury could have seen contradicted each other,
and that "given the strength of the evidence before the grand
jury, it is highly unlikely that discrepancies influenced the
decision to indict" where the grand jury could connect the
defendant to the robbery based on the items seized from his
house and the images reflected in the security footage of the
robbery. See Silva, 455 Mass. at 509 (dismissal of indictment
based on impairment requires finding that evidence probably
influenced grand jury's decision to indict). The motion judge
therefore did not err by denying the defendant's motion to
dismiss.
3. Admission of DNA and canine tracking evidence.
"Evidence is relevant if (a) it has any tendency to make a fact
more or less probable than it would be without the evidence and
(b) the fact is of consequence in determining the action."
Commonwealth v. Mason, 485 Mass. 520, 533 (2020), quoting Mass.
G. Evid. § 401 (2020). "[R]elevant evidence is subject to
exclusion 'if its probative value is substantially outweighed by
10 a danger of,' among other things, 'unfair prejudice.'"
Commonwealth v. Correia, 492 Mass. 220, 228 (2023), quoting
Mass. G. Evid. § 403 (2023). "By design, all evidence is meant
to be prejudicial; it is only unfair prejudice which must be
avoided." Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188
(2013), quoting United States v. Rodriguez-Estrada, 877 F.2d
153, 156 (1st Cir. 1989). "Whether evidence is relevant in any
particular instance, and whether the probative value of relevant
evidence is outweighed by its prejudicial effect, are questions
within the sound discretion of the judge." Commonwealth v.
Dunn, 407 Mass. 798, 708 (1990). Because the evidence was not
objected to at trial, we review any error in admitting evidence
for "whether the error created a substantial risk of a
miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8,
13 (1999).
The defendant alleges that both the DNA evidence linking
the defendant to the mask and the canine dog tracking evidence
were improperly admitted because they were not relevant and
unfairly prejudiced the defendant. The claim is meritless.
The DNA evidence recovered from the mask was clearly
relevant because the evidence made it more probable that a mask
potentially matching the mask appearing on the store's security
footage belonged to the defendant. See Mass. G. Evid. § 401
(2025). The dog tracking evidence was likewise relevant because
11 it made it more probable that someone had recently traveled from
the store to the defendant's home. See Mass. G. Evid. § 401
(2025). Although the fact that the police dog began chasing a
rabbit after tracking to the defendant's home might reduce the
strength of the canine tracking evidence, it is the jury's role
to determine the evidence's persuasive value. See Commonwealth
v. Lao, 443 Mass. 770, 779 (2005) ("If, from the evidence,
conflicting inferences are possible, it is for the jury to
determine where the truth lies, for the weight and credibility
of the evidence is wholly within their province").
We also see no unfair prejudice in the evidence presented
where the jury had the opportunity to weigh the strength against
the weaknesses of the DNA and canine tracking evidence. See
Kindell, 84 Mass. App. Ct. at 187-188 (noting only unfair
prejudice must be avoided). Because the contested evidence was
relevant and not unfairly prejudicial, its admission did not
create a substantial risk of a miscarriage of justice.
4. Prosecutor's closing argument. "[W]here the defendant
failed to object to the prosecutor's argument, our review is
limited to whether there was a substantial risk of a miscarriage
of justice." Commonwealth v. Dirgo, 474 Mass. 1012, 1016
(2016). "[A] prosecutor may argue zealously in support of
inferences favorable to the Commonwealth's case that reasonably
may be drawn from the evidence." Commonwealth v. Carriere, 470
12 Mass. 1, 22 (2014). "Remarks made during closing arguments are
considered in the context of the whole argument, the evidence
admitted at trial, and the judge's instructions to the jury."
Commonwealth v. Felder, 455 Mass. 359, 368 (2009).
As relevant here, during closing arguments, the prosecutor
drew attention to the defendant's testimony that the store was
robbed for $800 when the amount taken from the store had not
been entered in evidence during the government's case in-chief.
The prosecutor also emphasized the strength of the DNA evidence
linking the mask to the defendant. The defendant did not object
to either of these arguments at trial.6 The defendant now argues
that the prosecutor misled the jury by implying that the
defendant knew that $800 had been stolen because he himself
stole it. The defendant also asserts that the prosecutor argued
that the DNA evidence showed that the mask found in the
defendant's home had been used in the robbery and that the
prosecutor was shifting the burden of proof to the defendant to
prove that the mask had not been used in the robbery. The claim
merits little discussion.
6 Although not dispositive, the absence of an objection from trial counsel is some indication that, in context, the prosecutor's words were more innocuous than now argued. See Commonwealth v. Mello, 420 Mass. 375, 380 (1995).
13 It was fair for the prosecutor to highlight the defendant's
statements regarding the $800 stolen. See Carriere, 470 Mass.
at 22. The amount stolen was not in evidence when the defendant
testified that $800 had been stolen, so the jury could have
reasonably inferred that the defendant had personal knowledge of
the amount stolen because he was guilty of the robbery. While
the defendant's learning the amount stolen during pretrial
discovery was also a reasonable inference,7 the defendant never
testified as such. It is well settled law that the Commonwealth
is permitted to highlight the reasonable inferences that are
favorable to its case. See id. As such, there was no error.
With respect to the DNA evidence, the defense attempted to
cast doubt on whether the mask found in the defendant's home
belonged to him by having the defendant's friend testify that
other people used the basement where the defendant lived and
where the mask was discovered for storage. It was therefore
proper for the prosecutor to comment on the relative strength of
the defense's and prosecution's versions of events. See
Commonwealth v. Grier, 490 Mass. 455, 473 (2022) (allowing
prosecutor to comment on weakness of defense's case even where
7 The manager stated that the robber took $890 during his interview with Podgurski, and another police report states that the clerk estimated the amount stolen at $500 to $700. Neither the report nor the interview was entered in evidence at trial.
14 it might prompt collateral reflection that defendant did not
produce certain evidence). The prosecutor did not rely on the
DNA evidence to shift the burden of proof to the defendant to
show that the mask was not the one used in the robbery but
instead to buttress the connection between the mask and the
robbery by noting the similar "distinctive pattern" of the mask
appearing on the store's surveillance video recording. The
prosecutor's reference to the DNA evidence simply closed the
inferential chain that the defendant used the mask in the
robbery by connecting the mask to the defendant. Accordingly,
we conclude that the prosecutor's closing arguments did not
5. Motion to withdraw. "We review the denial of a motion
to withdraw counsel for abuse of discretion." Commonwealth v.
Melo, 472 Mass 278, 304 (2015). "[T]he trial judge should
balance the movant's need for additional time against the
possible inconvenience, increased costs, and prejudice which may
be incurred by the opposing party if the motion is granted"
(citation omitted). Commonwealth v. Chavis, 415 Mass. 703, 711
(1993). "The ultimate question is whether the defendant likely
would be denied the effective assistance of counsel if counsel
is not removed." Commonwealth v. Britto, 433 Mass 596, 601
(2001). "Where, as here, the defendant's ineffective assistance
of counsel claim is based on a tactical or strategic decision,
15 the test is whether the decision was manifestly unreasonable
when made" (quotations and citation omitted). Commonwealth v.
Kolenovic, 471 Mass. 664, 674 (2015).
On the first day of trial, between jury selection and
swearing the jury in, the defendant's attorney made an oral
motion to withdraw, claiming she was unable to control the
defendant's outbursts at trial and the defendant would not
listen to her when she talked to him. The trial judge denied
the motion. The defendant and his attorney repeated the request
that she be allowed to withdraw throughout the trial based on
the fact that the defendant directed his attorney to make
specific objections during witness testimony, making it
difficult for the attorney to hear the witness's testimony. The
trial judge also denied these motions. The defendant contends
that these denials were an abuse of the judge's discretion that
deprived the defendant of a constitutionally effective defense.
We are not convinced.
The judge correctly noted that defense counsel had worked
with the defendant for two and a half years and the issues she
was raising did not impact her role as effective counsel. See
Britto, 433 Mass. at 600 ("The Sixth Amendment guarantees the
right to effective assistance of counsel, but it does not
invariably require a meaningful attorney-client relationship"
[quotations and citation omitted]). Likewise, the judge acted
16 squarely within his discretion to deny the mid-trial requests to
withdraw based on the defendant's demands for counsel to make
specific objections. See id. at 601.
These denials also did not result in defendant receiving a
constitutionally deficient defense where defense counsel's
actions at trial were not manifestly unreasonable. First, as
discussed supra, the canine tracking and DNA evidence were
admissible. Objecting to this evidence would have been futile.
See Commonwealth v. Collins, 470 Mass. 255, 261 (2014)
("[D]efense counsel was not ineffective for failing to make an
objection that would have been futile under the prevailing case
law"). Second, further examining the defendant regarding how he
came to the $800 figure as the amount stolen without knowing
what the defendant's answer would be risked the defendant making
further arguably inculpatory statements. See Kolenovic, 471
Mass. at 674. The defendant had provided an explanation that
ambiguously referred to either of these possibilities, stating,
"You all say it was $800." Finally, although the manager's
statements to the police and the police's failure to press him
on inconsistencies in his early statements was troubling,
importantly the manager did not claim at trial to have
personally witnessed the robbery. Impeaching the manager for
his prior false statements was risky and might only have had
limited effect on the value of his testimony. See Commonwealth
17 v. Bart B., 424 Mass. 911, 916 (1997) ("In general, failure to
impeach a witness does not prejudice the defendant or constitute
ineffective assistance"). Because defense counsel's decisions
at trial were not manifestly unreasonable, these decisions do
not support the defendant's claim that he received ineffective
assistance of counsel. See Kolenovic, 471 Mass. at 674.
Judgments affirmed.
By the Court (Blake, C.J., Desmond & Singh, JJ.8),
Clerk
Entered: November 19, 2025.
8 The panelists are listed in order of seniority.