By the Court (Cypher, Massing & Sacks, JJ.), Clerk
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of one count of rape, claiming error in the admission of certain testimony by the deoxyribonucleic acid (DNA) analyst as well as an improper closing argument by the prosecutor. We affirm.
Background. The defendant was charged with two counts of rape, one alleging vaginal rape and one alleging oral rape. A sexual assault examination performed on the victim recovered sperm from a vaginal swab. Testing of the sperm sample generated a biological profile that was compared to a profile generated from a known sample taken from the defendant. The DNA analyst testified that the DNA from the sperm fraction of the vaginal swab sample matched the DNA profile of the sample taken from the defendant. The analyst's testimony included the statistical probability that a randomly selected, unrelated individual would generate a DNA profile matching that of the sample.
During her testimony, the analyst also mentioned that saliva was detected on the victim's vaginal swab sample, although the analyst did not testify that any DNA testing was performed on the saliva fraction of the sample. The defendant's initial objection was sustained, and at sidebar, defense counsel argued that (1) the testimony was hearsay, (2) it was irrelevant because the saliva sample was not tested for DNA, and (3) in any event, it would be improperly admitted in the absence of statistical data on random match probabilities, as required by Commonwealth v. Mattei, 455 Mass. 840, 852 (2010). The prosecutor was instructed to rephrase her question, the analyst repeated that both sperm and saliva were detected during the sexual assault examination, and defense counsel renewed his objection on hearsay grounds only.
After the close of the Commonwealth's case, the defendant took the stand. His defense was one of consent, as he admitted to both performing oral sex on the victim and to having intercourse. The defendant also testified that he initially lied to the police and to his friends about what had happened. During the prosecutor's closing argument, she emphasized repeatedly that the defendant had lied, told a "tall tale," and that his story was a "Hail Mary," a "last ditch effort," and "baloney."
A jury convicted the defendant of the oral rape count and acquitted him of the vaginal rape count.
Discussion. Testimony about saliva sample. As a general matter, where evidence of a DNA match is admitted, it must be accompanied by an explanation of the statistical relevance of the result and its random match probabilities. See Commonwealth v. Curnin, 409 Mass. 218, 222 n.7 (1991); Mattei, supra at 851-855. The defendant is correct that, in the absence of interpretive statistical data, it would have been error to admit DNA evidence that he was a potential contributor to the saliva recovered from the victim. See id. at 855. See also Mass. G. Evid. § 702, illustrations at 232 (2016). However, that is not what occurred here. The testimony of the DNA analyst was focused on comparing the profile of the sperm sample and that of the defendant's known biological sample. At no point did she suggest that the defendant's DNA matched the profile of the saliva; indeed, the saliva was never tested for DNA. Because no evidence was admitted with respect to any saliva match, there was no statistical analysis required to accompany it. Moreover, in a case where the defendant admitted to having oral sex with the victim, the fact that saliva was discovered on the victim's vagina is of no consequence and could not have prejudiced his defense.
If we were to view the admission of this evidence without statistical interpretation of DNA evidence as error, which we do not, we would review under the substantial risk of a miscarriage of justice standard, since the defendant did not preserve that issue, but only a hearsay objection, which he does not now press. As we discern no error, it follows that there was no such substantial risk. We add that we are not persuaded by the defendant's argument that, absent the testimony about saliva, he could have testified that he had consensual intercourse, leaving out his description of how he began by performing oral sex on the victim. The victim testified that the defendant performed oral sex on her during the incident, and it was inevitable that, even with no mention of saliva, the defendant would have been cross-examined on that issue.
Prosecutor's closing argument. A prosecutor may base her closing argument on facts in evidence and fair inferences drawn from those facts. See Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978). In this case, the prosecutor's comments merely reflected the defendant's own testimony that he lied to his friends and to the police about what took place on the night of the victim's rape. The prosecutor did not imply that she had personal knowledge of the veracity of any witness's testimony. Her statements were within the scope of proper argument. See Commonwealth v. Murchison, 418 Mass. 58, 60 (1994) ("With a basis in the record and expressed as a conclusion to be drawn from the evidence and not as a personal opinion, counsel may properly argue . . . that a witness is lying").
Judgment affirmed.
By the Court (Cypher, Massing & Sacks, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: December 1, 2016.