Opinion
16-P-1095
04-24-2017
COMMONWEALTH v. Jesse R. QUINERLY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1991, a Superior Court jury convicted the defendant of one count each of kidnapping, armed robbery, and assault by means of a dangerous weapon, and three counts of aggravated rape. The charges were based on the victim's testimony that the defendant, a stranger, approached her as she was getting into her car, threatened her with a gun, took off with her in the car, stole various items from her (including the car itself), and forced her to perform fellatio on him three times. She eventually escaped as the car slowed at a toll booth, where she flagged down another driver who, upon seeing that she was upset, injured, and wearing only nylons, took her to a police station. The defendant subsequently was found in possession of the car and the other stolen items. We affirmed his convictions on direct appeal in an unpublished memorandum and order issued pursuant to our rule 1:28. Commonwealth v. Quinerly, 37 Mass. App. Ct. 1121 (1994). Before us now is the defendant's appeal from the denial of his motion for new trial based on the Commonwealth's failure to turn over allegedly exculpatory evidence, the negative results of testing that was performed on swabs taken from the victim's mouth for sperm and related substances. We affirm.
The Commonwealth emphasizes that this is the defendant's fifth postconviction motion for relief. However, given that this particular motion was based on information that the Commonwealth did not turn over until 2015, the defendant cannot be faulted for tardiness in raising this matter.
It is uncontested that the defendant specifically requested the pretrial disclosure of "[s]cientific test reports," that the results of the testing of the oral swabs fits that category, and that the Commonwealth failed to disclose this information. If the results had potential exculpatory value, and there is "a reasonable possibility that the nondisclosed evidence would have made a difference," the defendant is entitled to a new trial. Commonwealth v. Laguer, 448 Mass. 585, 594 (2007).
The defendant maintained at trial that, although he was in the car with the victim, the rapes did not occur, and that negative test results would have provided at least some support for that defense. However, as is uncontested, the oral swabs were done after the victim was taken to the hospital, vomited, drank coffee, and ate candy. To be sure, as the Commonwealth has brought to our attention, there is a case in which testing revealed the presence of sperm despite the victim having vomited and drunk liquids after the rape. Commonwealth v. Fowler, 431 Mass. 30, 33-34 (2000). Notably, the Fowler court observed that the jury there reasonably could have inferred that the victim "had ingested a large amount of semen and that some of it lingered despite her vomiting." Id. at 34. In the case before us, the victim testified at trial, and has consistently maintained, that the defendant never ejaculated in her mouth. It may be true, as the defendant maintains, that there are some instances where semen could be detected in a rape victim's mouth even in the absence of ejaculation. However, the defendant has not provided any authority to support his counterintuitive position that mere pre-ejaculate semen will remain after someone vomited, ate, and drank.
The defendant cites People vs. Adams, No. C055162 (Cal. Ct. App. Jan. 6, 2009), an unpublished decision, which references testimony by an expert witness that it was scientifically possible to detect sperm or seminal fluid on a victim of oral rape even if the perpetrator did not ejaculate. As it is unnecessary to our resolution of this case, we pass over the propriety of relying on expert testimony referenced in a different case.
More importantly, even if we assumed that a positive test result was a theoretical possibility, there is no evidence before us as to its likelihood. In the absence of such a showing, we are confident that the jury would not have found the negative test results to be of any appreciable significance. See Commonwealth v. Lykus, 451 Mass. 310, 326 (2008) (burden of showing prejudice rests with defendant).
Although the defendant did not have the negative test results in hand at trial, he was able to make use of the fact that the oral swabs had been taken without the Commonwealth's offering the results of any testing at trial. The judge also gave the jury the missing evidence instruction that the defendant requested. While we agree with the defendant that absent test results are not equivalent to negative test results, the evidentiary value of the actual results was so limited that the defendant's ability to focus on their absence arguably placed him in a better position than had he had the results in hand. In any event, his ability to press the absence of the test results at a minimum helped mitigate any prejudice from the Commonwealth's nondisclosure.
A police witness testified that while she knew that a rape kit had been done for the victim, she was not aware whether the crime lab had sent back the test results.
As is generally true in rape cases, the convictions here depended largely on whether the jury credited the victim's testimony about the rapes. The victim testified at length, and the jury had a full opportunity to assess her credibility, including during the crucible of cross-examination. The victim's testimony also was corroborated by the testimony of the other driver, who stated that when he encountered the victim at the toll booth, she was wearing only a turtleneck and nylons, had injuries to her hands, and was "screaming hysterically."
In sum, even if the test results are seen as having some theoretical exculpatory value, we are confident that the jury's verdict would not have been different had the Commonwealth disclosed the negative test results from the oral swabs. Compare Commonwealth v. Healy, 438 Mass. 672, 680-681 (2003) (in murder case where victim was found nearly naked and Commonwealth's theory was "that the murder was the product of a homosexual encounter gone awry," undisclosed evidence of negative tests for sperm was not of sufficient materiality to warrant new trial). The motion judge therefore committed no error in denying the defendant's motion for new trial.
The cases on which the defendant relies are readily distinguishable. For example, in Commonwealth v. Gallarelli, 399 Mass. 17, 18-20 (1987), the undisclosed evidence that a knife found on the defendant just after the victim had been stabbed showed no traces of blood was of obvious materiality.
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Order denying motion for new trial affirmed.