Opinion
12-P-1168
05-04-2015
COMMONWEALTH v. CHRISTOPHER TODISCO.
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
Following a jury trial in the Superior Court, the defendant, Christopher Todisco, was convicted of rape of a child by force and indecent assault and battery. In this consolidated appeal, he claims error in the admission of independent expert opinion as to deoxyribonucleic acid (DNA) evidence, and in the denial of both his motion in limine to pierce the rape shield statute and his motion for new trial. We affirm.
The defendant was found not guilty of intimidation of a witness.
1. Admission of DNA expert testimony. Blood and hair samples were collected from the victim, as well as vaginal, anal, anorectal, and oral swabs. A buccal swab was obtained from the defendant. The samples and swabs were tested and analyzed by analysts in the State Police Crime Laboratory (crime lab). Based on the blood sample and buccal swab, analyst Nicole Walicki developed the DNA profile for the victim; Jessica Hart developed the profile for the defendant (known profiles). At the time of trial, Walicki was no longer employed by the crime lab and lived out of State. The technical reviewer of Walicki's work, analyst Sarah Hughes testified, in part based on her review of Walicki's work, to her independent conclusion that the victim's DNA profile was developed from a known blood sample.
A technical reviewer reviews the work of subordinate analysts to ensure that all procedures performed on a sample were correct, all paperwork is completed, all the standard operating procedures and protocols were followed, and all calculations are correct.
Analyst Kristine Higgins examined the victim's vaginal, anal, and anorectal samples, and detected both sperm and blood cells. Analyst Jennifer Maryanopolis developed DNA profiles from these unknown sperm and blood cells. Maryanopolis was no longer employed by the crime lab at the time of the trial. Brian Cunningham, a supervisor and the technical reviewer for Maryanopolis's work, testified to his independent conclusions, based on a review of Maryanopolis's work. He testified that the sperm fraction taken from the victim's anorectal swab and the sample taken from the victim's vagina both contained a mixture of DNA, with a major profile matching the known sample taken from the defendant. Cunningham further opined that the minor profile in the anorectal swab and the vaginal swab, derived from "carryover" non-sperm DNA, matched the victim's DNA profile.
By rearranging the plurality, concurring, and dissenting opinions in Williams v. Illinois, 123 S. Ct. 2221 (2012), the defendant contends that the testimony of Hughes and Cunningham violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. The circumstances of this case are controlled in all material respects by the reasoning and result in Commonwealth v. Greineder, 464 Mass. 580 (2013), which was decided subsequent to Williams. Indeed, Greineder observes that the evidentiary rules in Massachusetts afford defendants more protection than those at issue in Williams, in that on direct examination only the independent opinion of a substitute expert witness is permitted and not the underlying reports or conclusions of the nontestifying expert. Commonwealth v. Greineder, supra at 592-594. Moreover, as in Greineder, the expert opinion testimony here was subject to meaningful cross-examination on the risk of error in the testing upon which the expert relied, including the reliability of the underlying data. Id. at 595. Each expert was also employed by the crime lab, where the underlying tests were administered. Contrast Commonwealth v. Tassone, 468 Mass. 391, 399-402 (2014) (opinion testimony inadmissible where substitute expert had no affiliation with laboratory that conducted underlying testing). A director or supervisor is often in the best position to speak to the standardized procedures employed at the laboratory in question. Greineder, supra at 596-597. There was no error.
2. Rape shield. The defendant alleges that it was error for the judge to refuse to hold an in camera hearing before denying his motion in limine seeking to pierce the rape shield statute; that this error was compounded by denial of the defendant's motion for a new trial without an evidentiary hearing; and that trial counsel was ineffective to the extent his offer of proof was defective. The defendant sought to introduce evidence of the victim's sexual relationship with her boy friend, contending that the boy friend could share up to twenty-five percent of his DNA with the defendant, his uncle.
The rape shield statute was enacted to exclude the vast majority of evidence pertaining to a victim's sexual conduct. G. L. c. 233, § 21B. In the minority of cases where such evidence is allowed, admissibility shall be determined "only after an in camera hearing on a written motion for admission of same and an offer of proof." Ibid. Although an in camera hearing was not held in this instance, the result would have been the same because the defendant's written offer of proof and theory of admissibility were clearly lacking. See, e.g., Commonwealth v. Whitman, 29 Mass. App. Ct. 972, 974-975 (1990). The same is true of the defendant's motion for a new trial. The motions speculate that the boy friend "could potentially be a source of sperm and DNA," but offer no concrete, scientific support for the assertion that sexual conduct occurring over four days prior to the alleged rape could somehow render the test results here unreliable or inaccurate. The motions thus provide no real "evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim." G. L. c. 233, § 21B. Moreover, trial counsel was not ineffective where she repeatedly attempted to introduce evidence of the victim's alleged sexual relationship with her boy friend. She sought and was granted funds for a DNA expert and investigator. See generally Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant's motion in limine states: "The rape kit indicates that the complaining witness had 'consensual intercourse' ninety-nine hours earlier."
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Blake & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 4, 2015.