Berry
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Superior Court, the defendant was convicted of kidnapping, two counts of rape (digitally and by tongue), assault with intent to commit rape (anal), assault and battery (blow to mouth), and two counts of indecent assault and battery (hand on breasts; rubbing alcohol on vagina). On appeal, the defendant claims error with regard to certain deoxyribonucleic acid (DNA) evidence. We affirm.
The jury acquitted the defendant of two counts of rape (penis in vagina and penis in mouth), assault and battery (blow to left side of head), and indecent assault and battery (licking of breasts).
We begin by noting the limited nature of the factual dispute that was presented to the jury. The two key witnesses were the victim Beth (a pseudonym) and the defendant. Much of their testimony was consistent. Beth admitted that she went to the defendant's apartment to obtain 'crack' cocaine, and the defendant admitted that he engaged in a variety of sexual acts with Beth over an extended period of time. He also acknowledged that their encounter erupted in violence, with them -- in his words -- 'both exchanging punches.' He specifically admitted that at one point he struck Beth in the mouth hard enough to cause her to bleed and to dislodge two of her teeth. The principal dispute was over whether the sexual acts were consensual, with Beth stating that the defendant forced himself on her, and the defendant claiming that Beth agreed to have sex with him to secure the cocaine. In this manner, the case boiled down to a question of credibility, as the defendant's trial counsel expressly acknowledged in his closing argument.
The defendant denied ever inserting his penis into Beth's vagina, although at one point he admitted to having 'sexual intercourse' with her. In any event, the jury acquitted him of the rape charges that were based on penile insertion.
The Commonwealth presented its case as one based on actual force, and it did not argue that Beth's cocaine addiction rendered her incapable of consenting.
Counsel accurately told the jury that 'this whole case is about credibility,' later adding, 'this case is all about credibility.'
Against this background, we turn to the defendant's arguments on appeal, which all relate to DNA evidence taken from swabs that were done of Beth's external genital and anorectal areas. Each side presented an expert with respect to that evidence, and the two experts essentially agreed as to the meaning of the DNA results. They both acknowledged that -- as a result of the limited amount of DNA found and the particular analytic method used (Y-STR testing) -- the results provided limited information for identifying the source of the DNA, that the defendant could not be ruled out as a contributor to that DNA, and that many other men also would have DNA that matched the partial profiles derived from the samples. In simple terms, the experts agreed that the DNA evidence established that the defendant might have been its source, while providing little definitive proof that he was.
In fact, the Commonwealth's expert acknowledged that 'with Y STR testing, you can never, ever identify an individual.'
Both experts also acknowledged the possible presence of DNA from a second male.
The defendant did not challenge the admission of the DNA evidence at trial, and he claims not to be challenging its admissibility on appeal. Instead, he claims that '[t]he Commonwealth's failure to proffer DNA profile frequency statistics, accompanied by obfuscation of this required information, deprived the defendant of the due process of law.' Nevertheless, some of the contentions he does make sound in terms of admissibility. For example, citing to Commonwealth v. Mattei, 455 Mass. 840, 851-857 & n.35 (2010), the defendant argues that the prosecutor erred by failing to introduce statistical evidence as to the likelihood that other individuals in a given population would also match the partial profiles that were found (and thus also could not be excluded as a potential source of the DNA). In any event, such arguments would fail even to the extent they were properly before us. In Commonwealth v. Linton, 456 Mass. 534, 559-561 (2010), the Supreme Judicial Court left open the question whether the holding in Mattei applied to Y-STR testing. Assuming arguendo that it does, the defendant here is unable to point to anything approaching reversible error. For one thing, through cross-examination of the Commonwealth's expert and through the testimony of his own expert, the defendant was able to elicit statistical evidence to set the context for the DNA test results. The defendant does not argue that such evidence was insufficient to allow the jury to evaluate those results.
Instead, the defendant focuses on the fact that the defendant, not the Commonwealth, elicited such evidence. Especially in light of the fact that the defendant did not challenge the admission of the DNA evidence, the import of this argument is not clear.
More importantly, whether the DNA in fact came from the defendant was in the end beside the point. The defendant conceded that he had sexual contact with Beth in the areas where the swabs were taken, so whether the DNA found there was from him or someone else was ultimately of little, if any, moment. Compare Commonwealth v. Linton, supra at 560 (no substantial likelihood of a miscarriage of justice where the defendant was the victim's husband, and 'it was therefore of limited significance that small amounts of his DNA would be found beneath the fingernails of the victim's hand '); Commonwealth v. Carnes, 457 Mass. 812, 841-843 (2010) (no substantial likelihood of a miscarriage of justice where the DNA evidence was of marginal import). Instead, the case turned on whether the jury believed his claim that Beth consented. Thus, even if the defendant could demonstrate error with respect to the introduction of the DNA evidence, he cannot demonstrate prejudice. The same is true of the defendant's claims of prosecutorial misconduct in the use of the evidence.
Put differently, at least once the defendant admitted his sexual contact with Beth, the DNA evidence was of minimal inculpatory or exculpatory value. The prosecutor recognized this in his closing argument.
In Linton, 456 Mass. at 560, the Supreme Judicial Court assumed that the holding in Mattei applied to Y-STR testing, but found no reversible error even in the absence of statistical evidence about the likelihood of the DNA excluding other individuals. Here, there was some such evidence provided to the jury, and the DNA evidence was of even less significance to the Commonwealth's case than in Linton. In the same respects, the current case is also weaker than Carnes, 457 Mass. at 841-843.
For example, the defendant argues that the prosecutor exaggerated the strength of the DNA evidence in his opening argument by improperly suggesting that only the defendant's direct male paternal relatives (such as his father, grandfather, and brothers) could have been an alternative source of the DNA. Given that the jury subsequently heard detailed, consistent testimony from the two experts about the limited probative value of the DNA testimony, the defendant's arguments that the prosecutor overstated the evidence would appear to have little force even if the DNA evidence had been critical to the Commonwealth's case. But any force is further diminished by the fact that the DNA evidence was beside the point.
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Judgments affirmed.
By the Court (Berry, Meade & Milkey, JJ.),