Opinion
11-P-699
01-14-2014
COMMONWEALTH v. ROBERT DICICCO.
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
In 1984, a jury convicted the defendant, Robert DiCicco, of aggravated rape. G. L. c. 265, § 22. In 2007 and 2008, the State police laboratory (State lab) and Orchid Cellmark, an independent laboratory (Orchid Cellmark), performed deoxyribonucleic acid (DNA) testing on the female victim's clothing. The defendant filed a motion for a new trial, Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), relying on the newly available DNA evidence. He proffered expert testimony of Eric J. Carita, a forensic analyst retained by him, who opined that the defendant was not a source of male DNA on the victim's pants. The Commonwealth contested the admissibility of this expert evidence. A Superior Court judge conducted a Daubert-Lanigan hearing. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (Daubert). Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994) (Lanigan). See Commonwealth v. Greineder, 464 Mass. 580, 601 n.24 (2013). Carita testified, as did the Commonwealth's expert witness, Christine E. Lemire, the analyst at the State lab who performed the DNA testing. Two key questions emerged: Were Carita's expert opinions the product of reliable empirical data, and was other, admissible DNA evidence sufficiently material to cast real doubt on the justice of the conviction. In essence, the judge concluded the answer to both was no. Based on written findings of fact and rulings of law, set forth in a twenty-five page decision, the judge denied the motion for a new trial. The defendant has appealed. We affirm the denial of the new trial motion. Facts. The facts as they properly could have been found by the jury are set forth in the motion judge's decision. A brief outline shall suffice here. Two men attacked the then eighteen year old female victim during the early morning (1:30 A. M.) of August 27, 1983, in a secluded and empty parking lot in Waltham. The victim later identified her assailants as the defendant and one Vincent Park.
See Commonwealth v. DiCicco, 19 Mass. App. Ct. 1115 (1985) (judgment affirmed on direct appeal).
We acknowledge the amicus brief submitted by the New England Innocence Project, which was filed with leave of the panel and without objection.
The defendant also appeals from the denial of his motion for additional State funds for work performed by Carita, in the sum of $4,500. For the reasons stated by the motion judge in her decision dated January 17, 2012, including but not limited to the fact that defense counsel did not obtain permission from the trial court to retain a second forensic expert, there was no abuse of discretion by the judge in denying the additional requested funds.
While Park pinned the victim to the ground by placing his knees on her shoulders, the defendant pulled her denim jeans and underwear down to her ankles. The defendant then raped the victim vaginally; while this was happening, Park attempted to get the defendant's attention, referring to him as Chick and complaining that it was his (Park's) turn to rape the young woman. A truck pulled into the lot, and its headlights illuminated the scene. The defendant got up, urinated on the victim, and then ran away. The victim provided a description of both men to the police. After she had been treated at a local hospital, she selected the defendant's photograph at the police station, identifying him as the rapist. On information received from a member of the defendant's family, the police arrested him at a local homeless shelter, where a manager confirmed that the defendant had not checked in that evening and had only appeared shortly before the police arrived (6:45 A. M.). Trial. The Commonwealth's case for guilt rested largely on the victim's description of the incident, her identification of the defendant in the photographic array, and the circumstantial evidence surrounding the crime. DNA evidence was not involved. The defendant did not testify. His defense was one of mistaken identity.
The victim recalled Park's words at trial.
She described the defendant as thin, with dark black combed-back hair and a dark moustache. She noticed he bore a strong scent of cologne.
For the rape kit evidence, the Commonwealth and defendant stipulated: Chemical tests for the presence of substances characteristically present in semen were positive in the stain . . . and the smear slide in the rape kit. However, semen could not be conclusively identified since no sperm cells were found.
Postconviction DNA testing. In 2007, when the State lab examined the denim jeans and underwear, representatives of the defendant, including his original expert, Thomas Fedor, were present. At the State lab, Lemire performed Y-STR testing on three samples. The defendant admits that the testing in this case was conducted properly in all respects. The results fall into two categories: sperm and nonsperm fractions. a. Sperm fractions. A sperm fraction -- identified as stain 13, sample 2-1.4 -- was extracted from the left interior knee area of the jeans. The State lab concluded there was insufficient DNA to yield a profile at one or more loci for Y-STR analysis for this sample, and, thus, it was inconclusive for comparison. The only result obtained was a single peak, a single potential allele, below the laboratory's mandated threshold for identifying a signal as a true allele. At the Daubert-Lanigan hearing, Lemire testified: [T]here's just not enough data there [for this sample] to generate any comparison. See Commonwealth v. Matthews, 450 Mass. 858, 864 (2008); Commonwealth v. Almonte, 465 Mass. 224, 238 (2013) (DNA test results are inconclusive if they provide no information to include or exclude a person because of an insufficient sample or some other reason). In 2008, for a similar cutting from stain 13, Orchid Cellmark detected no male DNA. No male DNA was recovered from the sperm fraction from stain 14. Both laboratories reported the respective sample was inconclusive. b. Nonsperm fractions. The State lab and Orchid Cellmark both concluded the defendant is excluded as the contributor of the nonsperm fraction from stain 13 (lab sample items 2-1.4 and 2-1.6).
For a summary describing DNA testing, see Williams v. Illinois, 132 S.Ct. 2221, 2253-2255 (2012) (Breyer, J., concurring) (appendix). Also see 2 Giannelli, Imwinkelried, Roth, & Moriarty, Scientific Evidence § 18.04[b] (5th ed. 2012); 4 Faigman, Blumenthal, Cheng, Mnookin, Murphy, & Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony § 31.2, § 31:30 (2012-2013 ed.).
By all accounts, the victim's jeans were not preserved in pristine fashion or handled in accord with a proper chain of custody. Collection of the victim's clothing occurred in the 1980's. Prior to the 1990s when advances in DNA technology first made it possible to extract and analyze biological material from old pieces of evidence, rape kits and stained clothing had minimal use after the defendant was convicted and the litigation was concluded . . ., as was the case here. Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence under Innocence Protection Statutes, 42 Am. Crim. L. Rev. 1239, 1242 (2005).
The rape kit prepared at the hospital could not be located.
No sperm cells or seminal fluid residue were detected on the underwear. Close inspection with an ultraviolet light revealed stains on the jeans; the DNA test samples consisted of cuttings from those stains. Testing by the short tandem repeat (STR) process yielded no probative results.
A Y-STR test looks at DNA on the Y chromosome found in males. See Commonwealth v. Linton, 456 Mass. 534, 543 (2010); Commonwealth v. Mountry, 463 Mass. 80, 83 (2012); Commonwealth v. Issa, 466 Mass. 1, 4-5 (2013).
The signal must be of a certain strength, that is, the peak must be high enough to be interpreted before a laboratory will have enough confidence in the data to make an interpretation. United States v. Davis, 602 F.Supp.2d 658, 666 (D.Md. 2009), aff'd, 690 F.3d 226 (4th Cir. 2012), cert. denied, 134 S.Ct. 52 (2013).
The State lab and Orchid Cellmark concluded there was insufficient data to determine whether the defendant was a source of the mixture of male DNA found in the nonsperm fraction of stain 14 (lab sample items 2-1.5 and 2-1.7).
Of the two called alleles (i. e., those reaching the reporting threshold), one matched the defendant's profile at DYS393 and the other was inconsistent at DYS389I. Peaks, not called alleles by the State lab, were also observed. A potential allele at DYS389I was consistent with the defendant's profile as was another at DYS391. Two other potential alleles, below the threshold for reporting, at only 15RFUs above the noise level, were observed; neither was a match to the defendant at that locus, DYS458.
Expert opinions. Carita did not perform the DNA testing. He analyzed the results of the testing performed by the State lab. Carita testified that the defendant is excluded as the source of the sperm fraction (sample 2- 1.4) based on the single peak, the potential allele below threshold, and no other results. Carita also opined that the defendant is excluded as the contributor of the nonsperm fraction, the mixture of male DNA (see lab item 2- 1.5), based on two possible genetic markers below the State lab's reporting threshold. The judge ruled that Carita's expert testimony was unreliable, under the standard laid down by Commonwealth v. Lanigan, 419 Mass. at 25-26, and, hence, inadmissible. The judge also ruled that the other, admissble DNA evidence was not sufficiently material to cast[] real doubt on the justice of the conviction. Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Standard of review. We review a judge's determination to admit or exclude expert testimony under Daubert and Lanigan for an abuse of discretion. See Commonwealth v. Pytou Heang, 458 Mass. 827, 844 (2011); Commonwealth v. Vasquez, 462 Mass. 827, 844 (2012); Commonwealth v. Montanez, 55 Mass. App. Ct. 132, 144-145 (2002). See also General Elec. Co. v. Joiner, 522 U.S. 136, 138- 139, 146-147 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Deference is afforded to the trial court judge's decision. See Commonwealth v. Almonte, 465 Mass. at 238. We shall not reverse the judge's ruling if a reasonable basis appears for it. Commonwealth v. Pytou Heang, 458 Mass. at 845. We review the decision to deny a new trial motion for a significant error of law or abuse of discretion. Commonwealth v. Grace, 397 Mass. at 301. Discussion. a. Expert testimony. Under the standard set out in Daubert, [f]aced with a proffer of expert scientific testimony, . . . a judge must determine, at the outset, . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Daubert, 509 U.S. at 592. [T]o qualify as 'scientific knowledge,' an inference or proposed testimony must be derived by the scientific method. Id. at 590. A trial court judge must decide as the gatekeeper whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue. Id. at 592-593.
His expert qualifications are not at issue.
When, as here, the motion judge did not preside at trial, we defer to that judge's assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record. Commonwealth v. Grace, 397 Mass. at 307.
To assess its reliability, the judge may look to whether the expert's theory or methodology (a) has been subject to peer review or publication, (b) has been tested, (c) has a known or potential error rate, and (d) has been generally accepted in the scientific community. Daubert, supra at 593-594. [W]hether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine. Kumho Tire Co. v. Carmichael, 526 U.S. at 153. The defendant's brief does not discuss the Daubert factors.
The defendant asserts that Y-STR is a scientifically valid testing method, that it is proper to use alleles below threshold for exclusion, and that the Y-STR test on the sperm fraction produced a *13 (potential) allele, below the State lab's reporting threshold, whereas the defendant is a 16 allele at this same location. According to the defendant, [w]hat is left is a debate purely over the interpretation of data (potential alleles) that both sides accept as scientifically valid and worthy of confidence. This line of argument misses the heart of the Daubert-Lanigan analysis. The validity of the Y-STR test is not at issue. It is the methodology or reasoning employed by Carita that is in dispute. It was the defendant's burden, as the proponent of the expert evidence, to demonstrate, by a preponderance of the evidence, that Carita's opinions were the product of reliable empirical data and scientific methodology. The judge reasonably concluded the defendant did not meet his evidentiary burden. The data underlying the expert opinions -- one or two potential alleles, below the reporting threshold mandated by the State lab -- was not reliable empirical data, particularly for a low template sample, where DNA material had not been preserved in a pristine fashion. There was insufficient data to support the expert's opinions. And, for a DNA mixture, it is generally accepted in the scientific community that interpretation is complex and should be done carefully, incorporating all possible combinations, adhering to established laboratory protocols, and being conservative in interpreting the results . . . . Kobilinsky, Liotti, & Oeser-Sweat, DNA: Forensic and Legal Applications 111 (2005) (citation omitted). The judge reasonably concluded there was simply too great an analytical gap between the data and the proffered opinion. See General Elec. Co. v. Joiner, 522 U.S. at 146. Carita's opinion relying on potential alleles to the exclusion of any other empirical data does not possess the hallmarks of valid scientific methodology. The law does not require a judge to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. Ibid. [T]he courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it. Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) (Posner, J.). In short, DNA testing alone does not always resolve a case. District Attorney's Office for the Third Judicial Dist. v. Osborne, 129 S.Ct. 2308, 2316 (2009). Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. Ibid., citing House v. Bell, 547 U.S. 518, 540-548 (2006).
We should not confuse the process of validation with the inferences that the evidence permits. Berger, Expert Testimony in Criminal Proceedings: Questions Daubert Does Not Answer, 33 Seton Hall L. Rev. 1125, 1129 (2003).
The judge specifically found that the denim jeans had been stored in plastic bags for more than twenty years. [B]iological evidence should not be kept in plastic bags. ABA Standards for Criminal Justice: DNA Evidence, commentary to standard 16-2.5(a), at 54 (3d ed. 2008). See Michaelis, Flanders, & Wulff, A Litigator's Guide to DNA Evidence 62 (2008): [E]ven a dry piece of evidence can become moist due to the condensation that can occur inside a warm plastic bag. Warmth itself will foster degradation of the DNA.
[T]rial judges may evaluate the data offered to support an expert's bottom-line opinions to determine if that data provides adequate support to mark the expert's testimony as reliable. Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998).
b. Materiality of admissible DNA evidence. The judge concluded that the laboratory reports of the State lab and Orchid Cellmark, confirming the defendant was not a donor of the stain 13's epithelial cells, were not sufficiently material because there was no scientific method by which to determine whether the epithelial cells were left at the crime scene or added sometime later in the handling of the denim jeans at trial or in its aftermath. It was not an abuse of discretion to rule as much. Newly available evidence must be material, credible, and carry a measure of strength in support of the defendant's position to warrant a new trial. Commonwealth v. Grace, 397 Mass. at 305. See Commonwealth v. Brown, 378 Mass. 165, 170-171 (1979). Since there is no way of determining when epithelial cells were left on the jeans, this newly available DNA evidence was not probative, one way or another, of whether the defendant in fact did or did not urinate on the victim. The evidence, like the State chemist's report (note 6, supra), is also inconclusive in character. Conclusion. The orders of the Superior Court denying the motion for a new trial and the motion for additional funds are affirmed.
The motion judge noted that in the early 1980's barrier gloves were not used when clothing was handled by police, prosecution and defense attorneys, clerks, or jurors; thus there is no way to determine when the epithelial cells were deposited or by whom.
--------
So ordered.
By the Court (Graham, Grainger & Sikora, JJ.),