Commonwealth v. Warner Donaldson.

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

create a substantial risk of a miscarriage of justice.

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.

18