Opinion
13-P-30
12-05-2014
COMMONWEALTH v. CARTER C., a juvenile.
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
Following a jury trial in the Juvenile Court, Carter C., a juvenile, was found guilty as a youthful offender for possessing an unlicensed firearm, in violation of G. L. c. 269, § 10(a), and was found delinquent on the charge of unlicensed possession of ammunition, in violation of G. L. c. 269, § 10(m). On appeal, the juvenile claims that the evidence was insufficient to support the jury's verdict, that deoxyribonucleic acid (DNA) evidence was improperly admitted in evidence and improperly argued to the jury, and that he received ineffective assistance of counsel. We reject the juvenile's sufficiency of the evidence claim and decline to reach the ineffective assistance claim because we conclude that the manner in which certain DNA results were presented to the jury requires a new trial.
1. Sufficiency of the evidence. We summarize the relevant facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). Around 1:30 A.M. on May 30, 2010, members of the New Bedford police department were dispatched to a high crime, densely populated residential neighborhood after reports of a disturbance stemming from a house party. While still in their police cruisers, the officers approached a large, noisy group of people in the street. At that time a young man, later identified as the juvenile, was approximately four feet away from the officers. After taking notice of the police car, the juvenile turned and ran. An officer pursued the juvenile on foot, and the two ran into a nearby residential yard. The yard was not well lit, and the officer temporarily lost sight of the juvenile. About a minute and a half later, police noticed the juvenile standing in the street, approximately one block away from where they first encountered him. The officers approached the juvenile and a pat frisk revealed that he had on his person a single leather glove. The juvenile, who was fifteen years old at the time, was arrested for disturbing the peace. After the juvenile was placed in a police cruiser, the officer who conducted the foot chase returned to search the yard with a flashlight. A fence along one side of the yard had an open gate leading past a shed and into an adjacent property. Near the shed, the officer recovered a loaded Colt .45 semi-automatic firearm. The gun was resting on top of a paint can and the hammer of the weapon was pulled back in a cocked position. The Commonwealth's ballistics expert testified that the firearm was operative and contained eight bullets. One bullet was located in the chamber and the remaining seven were in the magazine.
The juvenile claims that the trial judge erred by denying his motion for required findings of not guilty and not delinquent for the following reasons. First, he contends that because the gun was cocked when it was recovered, it would have been impossible for him to either throw it or place it on the paint can when he was fleeing from the officer. Next, the juvenile asserts that the rust and water on the gun contradicted the Commonwealth's theory that he had discarded the gun while running from the police. Finally, the juvenile argues that the conclusions drawn from the DNA evidence failed to contribute to proof of guilt beyond a reasonable doubt.
When we review a denial of a required finding of not guilty, we inquire "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. at 677, quoting from Jackson v. Virginia, 443 US 307, 318-319 (1979). "Our consideration 'is to be measured upon that which was admitted in evidence without regard to the propriety of the admission.'" Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
The judge did not err in denying the juvenile's motion for required findings of not guilty. First, two police officers identified the juvenile as the young man standing several feet away from them when they pulled up to the crowded street. The juvenile's immediate flight upon seeing the officers could be interpreted, as the Commonwealth argued, as consciousness of guilt. The jury were not required to credit the testimony of the juvenile's friend, who said that she was with him at the party and never saw him run. Furthermore, the officers' testimony, that the juvenile did not run when the officers observed him a minute and a half after the initial chase is consistent with the Commonwealth's theory that the juvenile no longer had a reason to run or fear the police because he had just rid himself of the firearm.
The jury could also have found it significant that the same police officer who chased the juvenile returned to the yard and recovered the firearm soon after the juvenile was arrested. This, along with the location of the gun, which was resting on top of a paint can and was not buried or hidden, permitted the jury to infer that the juvenile threw the gun while fleeing. Additionally, the fact that the juvenile was found with a single leather glove could be interpreted, as the Commonwealth posited, as an effort to conceal fingerprints or other biological material. While the juvenile's mother testified that she bought her son the gloves to prevent injury to his hands when he was riding his dirt bike, this theory was undermined on cross-examination by the mother's testimony that the juvenile did not ride his bike to the party that night.
It was undisputed that the gun contained rust, but there was no evidence presented to the jury that supported the juvenile's theory that the rust developed because it was left outside before the early morning hours of May 30, 2010. The Commonwealth's ballistics expert testified that the gun, even with the presence of rust, was operable. Similarly, the juvenile argued that the moisture on the gun was rainwater, but the jury were permitted to credit the Commonwealth's theory that, on a night characterized by high humidity, the moisture represented dew or condensation. Finally, while it was not overwhelming, the DNA evidence further supported the jury's determination that the juvenile possessed the firearm.
2. The DNA evidence. After the police recovered the firearm, they submitted it to the Massachusetts State police crime laboratory (crime lab) for testing. At trial, three forensic chemists from the crime lab testified as experts for the Commonwealth. The first chemist testified that the crime lab, consistent with "industry standard," analyzes DNA by testing a small portion of DNA markers, also referred to as alleles. Out of thousands of possible DNA markers, fifteen genetic markers and one sex determining gene are targeted. The crime lab has a certain threshold target of DNA that must be present in order to generate a DNA profile. The chemist explained how a full DNA profile will contain two numbers, one contributed from the mother and the other contributed from the father, at each of the fifteen genetic marker sites. A partial profile has less available DNA data. Each DNA profile is organized on a table, and the DNA table prepared from a piece of evidence (evidence sample) is then compared with the DNA profile of a known individual (known DNA sample).
The first chemist testified that, "when a complete profile cannot be generated . . . what ends up happening is you'll get a few numbers, then you'll get a few of those asterisks, which shows like a low amount of DNA, and then you'll get no DNA at . . . [other] locations."
The chemist further testified that the process of comparing the two DNA tables is a "side-by-side comparison." She explained that "if somebody has a [fifteen] in their known standard at one location, you look at the piece of evidence, that table, that location, to see if there's a [fifteen] there, and then you go all the way across, all the locations, and do that comparison."
Next, the second forensic chemist testified that she received and analyzed a known DNA sample from the juvenile. The sample was generated after the juvenile provided a buccal swab. The second chemist described how she performed the extraction, amplification, and separation steps necessary to create a full DNA profile for the juvenile.
Finally, the third forensic chemist testified about the DNA analysis she performed on the recovered firearm and ammunition. She testified that at some allele locations, there were more than two numbers generated, indicating the presence of more than one person's DNA. In order to assign a number on the DNA profile, the chemist explained that the amount of DNA from the allele site must fall above a baseline known as the calling threshold. DNA falling below the calling threshold, but above what is known as the noise threshold, is identified on the DNA table with an asterisk. According to this chemist, asterisks indicate a "very low level" of DNA that cannot be used when determining the statistical significance of the evidence sample. The chemist stated that the asterisks on the DNA tables are "given a number, but we cannot provide that, because it's not above our calling threshold." Asterisked results are not without value, however; the third chemist explained that they are used for determining if a person represented by a known sample is included or excluded as a match with an evidence sample.
The chemist stated that an asterisk on the DNA table "means that it is real DNA, but we're saying that it -- that it is not really reliable. But it's also because it's a low level profile, and if there was more template DNA, then it would get more amplified." She testified that the DNA represented by an asterisk cannot be used in statistical calculation because, "we're not sure if all the information is there."
This chemist also described the process of comparing the juvenile's known DNA profile with the DNA profile taken from the evidence in this case. She testified that only one allele location was used to create the statistical calculation, and that the juvenile was "included" or "not excluded" as a match with the DNA recovered from the evidence. When describing the juvenile as "included," the chemist initially testified that she could not provide the numbers below the calling threshold that corresponded with an asterisk. But, after the Commonwealth moved, without objection, to introduce the chemist's case file in evidence, the chemist read from her notes the allele numbers that corresponded with the asterisks on the sample DNA table. Finally, the chemist gave a statistical conclusion about the DNA sample, stating that "the probability of a randomly selected, unrelated individual having contributed DNA to this mixture is approximately one in ten in the Caucasian population, one in three in the African American population, one in nine in the Hispanic population, and one in seven in the Asian population."
The chemist testified that there were three allele locations in the sample DNA profile, D-8, D-19, and Amelogenin, "where all of the DNA was amplified . . . where we feel confident." However, only allele location D-8 was used in the statistical calculation. The reason for this appears to be crime lab protocol, but it is not clear from the record. The extent of the chemist's testimony on this point is: "We do not use D-19 and Amelogenin in our statistical calculation, so I was only use -- able to use one location for the statistical calculation."
We understand from the record that the juvenile is African American.
The juvenile claims that the third chemist's case file, along with her testimony about the asterisks and the "included" and "not excluded" results, were improperly admitted in evidence. He argues that those errors, which were not objected to, created a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011). The juvenile also contends that he was further prejudiced during the Commonwealth's closing argument when the prosecutor referenced the prejudicial DNA evidence and mischaracterized the statistical significance of the DNA results. The Commonwealth concedes the error in the closing argument and asserts that the juvenile is entitled to a new trial because the Commonwealth cannot make the necessary showing that the error "did not influence the jury, or had but very slight effect." Commonwealth v. Dargon, 457 Mass. 387, 399 (2010), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). After reviewing the record, including a close reading of the third chemist's testimony and the prosecutor's closing argument, we conclude that compounded errors pertaining to the DNA evidence, under any standard of review, require a new trial.
The admissibility of DNA results is determined on "a case-by-case basis." Commonwealth v. Nesbitt, 452 Mass. 236, 253 (2008). "A trial judge's determination of the relevance of DNA test results is no different from other evidentiary decisions, and we will afford that decision substantial deference." Ibid., quoting from Commonwealth v. Matthews, 450 Mass. 858, 872 (2008). In Commonwealth v. Mattei, 455 Mass. 840, 848 (2010), the Supreme Judicial Court ruled on the admissibility of expert testimony that referenced whether the victim and defendant were "included" or "could not be excluded" as potential sources of DNA. The court concluded that a new trial was warranted because the "testimony concerning the nonexclusion results should not have been admitted without accompanying statistical explanation of the meaning of nonexclusion," and because the prosecutor emphasized the importance of the evidence in her closing argument and "encouraged the jury to act as their own experts." Id. at 855-856.
We disagree with the Commonwealth's assertion that the third chemist "testified to the statistical significance of the nonexclusion evidence." The third chemist repeatedly stated that the only data used to determine the statistical conclusion that "the probability of a randomly selected, unrelated individual having contributed DNA to this mixture is approximately . . . one in three in the African American population" was taken from allele location D-8. When asked about making the statistical calculation, the third chemist testified that she could not use asterisked data, "because we're not sure if all the information is there." The first chemist testified similarly, explaining that "you can't do a statistic on [asterisked data]. So you can only do a statistic on the locations where there's [sic] numbers and you can do a direct comparison, and that's an industry standard."
The nonexclusion results here were not "matches" akin to the match at allele location D-8. None of the chemists specifically described how the nonexclusion results influenced the statistical calculation. As in Mattei, there was no testimony "as to the probability that an individual randomly selected from the population would also 'not be excluded' by these tests," nor was there "any other indication as to the meaning of a 'not excluded' result." Id. at 849.
We acknowledge that our cases hold that a forensic chemist may be capable of using data that falls below the calling threshold to interpret whether a known sample is included or excluded as a possible match to an evidence sample. In Commonwealth v. Bizanowicz, 459 Mass. 400, 406 (2011), a small and degraded blood sample found under one of the victim's fingernails yielded a partial match to the defendant's DNA. The Commonwealth's expert testified that the defendant "could not be excluded from that partial DNA profile" and also told the jury that "99.6 per cent of the general Caucasian population could be excluded as contributors to the sample." Ibid.
This "random match probability statistic was calculated using a confidence interval to extrapolate from a database of 4,004 samples." Id. at 406 n.10.
In this case, however, there was no guidance regarding the import of the match. "[E]xpert testimony that DNA tests could not exclude the [juvenile] as a potential source of DNA found at the crime scene, absent testimony regarding statistical findings explaining the import of such a result, was likely to confuse and mislead the jury such that any probative value of the test results was substantially outweighed by their prejudicial effect." Mattei, supra at 842. Moreover, while not dispositive, we note that the jury requested a transcript of the third chemist's testimony.
Our reading of the record leaves us with the conclusion that the third chemist's testimony that "the probability of a randomly selected, unrelated individual having contributed DNA to this mixture is approximately . . . one in three in the African American population" was based only on one allele location match and was not representative of the nonexclusion data. Accordingly, "[w]ithout reliable accompanying evidence as to the likelihood that the test could not exclude other individuals in a given population, the jury have no way to evaluate the meaning of the result." Mattei, 455 Mass. at 852. See Commonwealth v. Almonte, 465 Mass. 224, 240 (2013). Where, as here, the DNA evidence was central to the case against the defendant and the evidence was not overwhelming, we must conclude that the admission of the nonexclusion evidence data, absent any testimony concerning its statistical significance, warrants a new trial.
The juvenile also claims that the third chemist's testimony about the asterisked data was improper because it was "scientifically unreliable" and "inconclusive." The Commonwealth contends that the expert in Mattei provided the jury with the same data and the practice was not proscribed. See Mattei, supra at 848-849 ("The expert explained that . . . 'not excluded' meant that 'the numbers that are present in those profiles are also present in the [sample profile] being compared'"). We leave it to the discretion of the trial judge to determine how the case file containing the asterisked data may be characterized or presented to the jury if there is a second trial.
3. Closing argument. Turning to the prosecutor's closing argument, the Commonwealth concedes that the argument was erroneous and serves as an independent ground for vacating the judgment and adjudication. First, given the overwhelming amount of data below the calling threshold, the prosecutor should not have stated, generally, that "[the juvenile's] profile matched," even if this remark served an introductory purpose. Next, the prosecutor stressed the fact that at each allele location, "[the juvenile's] profile was not excluded." Most significant is the prosecutor's impermissible attempt to combine the nonexclusion data with the "one and three" statistic, and then misstating the statistic by arguing that "it's one in three people who happen to have fit that profile and are not excluded. It's not one in three in the universe. It's one in three who match the profile." As we are left to wonder about the practical or scientific significance of these comments, it is likely that the jury did too.
The challenged remarks are as follows:
"Excluding means that, nope, not this person. And, as you heard, the exclusion, one number off, excluded. Fifteen locations, and [the juvenile] is not excluded.
"She told you the statistics. And the statistics are not particularly high, but it doesn't mean, as [defense counsel] would have you believe, that, well, one in three black males would leave that same DNA print on there. That's not what the testimony was. You heard what the testimony was.
"First of all, [the juvenile's] profile matched, and you'll compare the two profiles -- the sample, the hand[l]er, and [the juvenile's] -- and you'll see where it matches, but you also remember the testimony concerning what the asterisk means. There was one locus, the second one, where there was no result, and that's only one. In every other locus -- location, they obtained a result, but they included an asterisk. Why? Because their internal protocol says they can't log that into the table, but as [the third chemist] testified, she can look at that to determine whether or not someone is excluded. For each one of those locations, [the juvenile's] profile was not excluded.
"So, those statistics are different, because it's one in three people who happen to have fit that profile and are not excluded. It's not one in three in the universe. It's one in three who match the profile."
We do not intend to suggest that the prosecutor intentionally misstated the evidence. After failing to object to the admission of the nonexclusion evidence during trial, defense counsel filed a motion in limine to prohibit the prosecutor from commenting upon that evidence in his closing argument. That motion was denied, and the prosecutor proceeded to comment upon it in his closing argument. As the Commonwealth notes in its brief, none of the three chemists explained why the asterisked data was not reliable enough to be part of the statistical calculation, but was permitted to contribute to the determinations that the juvenile was not excluded. Nevertheless, we agree with the juvenile that the prosecutor's comments in closing argument about the juvenile being "not excluded" could be perceived as an attempt to bolster the relative weak "one and three" statistical conclusion. The closing argument at best confused, but likely skewed, the meaning of this statistic in the minds of the jurors. Here, the prosecutor's emphasis in closing argument on the importance of the nonexclusion evidence, like in Mattei, 485 Mass. at 855-857, was sufficiently prejudicial to warrant a new trial.
4. Ineffective assistance of counsel. The juvenile argues that trial counsel was ineffective for failing to object to the admission of the nonexclusion evidence and the admission of the case file. The juvenile also contends that it was error for trial counsel not to file a motion to suppress the glove. In light of our conclusion that the juvenile is entitled to a new trial, we need not address the merits of the juvenile's claim of ineffective assistance of counsel. Any alleged deficiencies in counsel's performance may be remedied during future proceedings.
4. Conclusion. The judgment on the charge unlawful possession of a firearm is reversed and the verdict is set aside. The adjudication of delinquency on the ammunition charge is reversed and the verdict is set aside. The case is remanded to the Juvenile Court for a new trial.
So ordered.
By the Court (Vuono, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 5, 2014.