Opinion
No. 10–P–692.
09-30-2014
COMMONWEALTH v. Ronjon CAMERON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, convicted in 2003 of two counts of rape in violation of G.L. c. 265, § 22(b ), appeals from the denial of his second motion for a new trial by a judge of the Superior Court, and from the denial of his “motion to amend and reconsider his motion for new trial based upon newly available DNA evidence” by the same judge (collectively motion or motion for new trial). , The defendant's motion argued that newly-available deoxyribonucleic acid (DNA) evidence warranted a new trial, and that the new DNA evidence further supported a finding that trial counsel had been ineffective for failing to challenge the Commonwealth's then-existing DNA evidence. The defendant also argued that trial and prior appellate counsel were ineffective for failing to bring forth, following trial, an electronic mail message (e-mail) correspondence between trial counsel and a putative witness, Kim Grievson. We affirm.
The defendant's convictions were affirmed on his direct appeal, as was the denial of his first motion for new trial. See Commonwealth v. Cameron, 69 Mass.App.Ct. 741 (2007).
The motion judge was not the trial judge, who had passed away prior to the filing of the motion.
We review the denial of the defendant's motion for new trial for an abuse of discretion. Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). “The decision [on] a motion for a new trial rests soundly within the judge's discretion and will not be reversed unless it is manifestly unjust or ... the trial was infected with prejudicial constitutional error.” Commonwealth v. Garuti, 454 Mass. 48, 56 (2009) (quotation omitted). Where, as here, the motion judge was not the trial judge, we consider ourselves in as good a position as the motion judge to review the trial record. See Commonwealth v. Raymond, 450 Mass. 729, 733 (2008).
In a motion for a new trial based on new evidence, the defendant must show that the evidence is “newly discovered,” and that it “casts real doubt” on the justice of the defendant's conviction. Commonwealth v. Grace, 397 Mass. 303, 305 (1986).
1. Newly discovered DNA evidence. There have been several recent cases addressing the admission of inconclusive or nonexclusive DNA results in criminal cases, and we briefly review those cases to inform our analysis of this issue.
In Commonwealth v. Mathews, 450 Mass. 858 (2008), the Supreme Judicial Court stated that the admissibility of DNA evidence should be determined on a case-by-case basis, focusing on the relevance of the evidence. Id. at 871–872 & n. 15. The court specifically stated that such evidence is appropriate where the defendant challenges “the integrity of the police investigation.” Id. at 872.
In Commonwealth v. Nesbitt, 452 Mass. 236 (2008), the court considered whether inconclusive DNA evidence was improperly admitted, and, if so, whether its admission created a substantial likelihood of a miscarriage of justice under G.L. c. 278, § 33E. Id. at 252–253. At trial, the Commonwealth's DNA expert testified that blood found on one handlebar of a bicycle had “insufficient DNA” to analyze, and a test of blood on the other handlebar yielded “no results.” Id. at 242. The DNA expert proceeded to testify that she was “not able to exclude [the victim] or [the defendant] as being potential contributors to [the] very low level mixture [of blood]” found on one of the handlebars. Id. at 242.
The court suggested that admission of this evidence was improper because it was much more prejudicial than probative, as the DNA expert mischaracterized inconclusive results as nonexclusion results. Id. at 254. Nevertheless, the court held that admission of the evidence did not create a substantial likelihood of a miscarriage of justice because “[t]he weight of the DNA evidence was thoroughly and effectively challenged on cross-examination ... and even the prosecutor in his closing argument stated that the DNA was from ‘such a contaminated sample, it could be you, me, anybody associated with this case, or anybody else.’ “ Id. at 254–255.
The DNA expert stated that the defendant could not be excluded as the donor, but the court noted that “the reality” was that, because of the poor nature of the sample, it could have been said that the DNA “c[a]me from anyone.” Nesbitt, 452 Mass. at 254.
Next, in Commonwealth v. Mattei, 455 Mass. 840 (2010), the court reiterated that there is a distinction between inconclusive DNA test results, which provide no information due to insufficient sample material or other causes, and nonexclusion results, whereby the defendant cannot be included or excluded as a donor. Id. at 848, 853–854.
In 2011, the court again applied a substantial likelihood of a miscarriage of justice standard under G.L. c. 228, § 33E, where inconclusive DNA results had been introduced at trial. Commonwealth v. Cavitt, 460 Mass. 617, 633 (2011). The court held that the DNA evidence was improperly admitted because it was not relevant. Id. at 635. However, the court determined that the evidence was neutral toward the defendant, not prejudicial, because “no conclusions could be drawn from the DNA evidence.” Id. at 635–636. The court also cited to defense counsel's “effective” cross-examination of the DNA expert, and the fact that “the prosecutor did not misuse or misrepresent” the evidence in closing argument. Id. at 636.
Here, in the first instance, the DNA evidence entered at trial is properly classified as inconclusive. See Mattei, 455 Mass. at 853. Although the DNA expert stated that the defendant could neither be included, nor excluded, as the donor of the secondary sample, the underlying reasons for such—namely, the presence of a primary sample and the victim's DNA, both of which complicated the testing of the secondary sample—strongly suggest that this evidence was, in fact, inconclusive.
Next, we agree with the judge's finding that, in light of the aforementioned recent case law, this DNA evidence was improperly admitted because it was not relevant. However, the admission of the DNA evidence, when viewed in light of the parties' arguments concerning this evidence, was not prejudicial to the defendant. First, the defendant was known to the victim and, thus, the DNA evidence did not provide a crucial link between the two where other evidence had failed to do so.
Defense counsel did not object to admission of the DNA evidence, so its relevance was not discussed at length or ruled on by the trial judge. However, the trial judge at one point sua sponte inquired about its relevance, and the Commonwealth responded, unconvincingly in our view, that it was relevant because of the presence of the secondary sample.
Second, as in Nesbitt, supra, the DNA expert here somewhat mischaracterized an inconclusive DNA test result as a nonexclusion DNA test result, thereby creating a potentially prejudicial scientific tie between the defendant and the victim where DNA evidence had not proven one. However, as in Nesbitt, we agree with the motion judge's determination that any prejudicial testimony offered by the Commonwealth's DNA expert was cured by defense counsel's cross-examination of the expert witness, defense counsel's closing argument, and the prosecutor's concession in closing argument. See Nesbitt, 452 Mass. at 254–255.
We note that in this case, the DNA expert agreed with defense counsel's assertion that the secondary source could include or exclude any male in the world, the prosecutor conceded in closing that the DNA evidence was a “wash,” and defense counsel characterized the DNA evidence as exculpatory for what it did not prove: the certain presence of the defendant's DNA on the victim's underwear. Additionally, the prosecutor did not “misuse or misrepresent” the DNA evidence in closing. See Cavitt, 460 Mass. at 636. In light of the foregoing, we cannot conclude that admission of the DNA evidence created a substantial risk of a miscarriage of justice.
The defendant also argues that the new DNA evidence, if admitted at trial, would have been a real factor in the jury's deliberations. However, the new DNA evidence falls far short of exonerating the defendant. Rather, the evidence, at best, would have served to impeach the victim's testimony that the defendant ejaculated during the rapes. Importantly, the victim, during her trial testimony and in prior statements, was somewhat equivocal on this point. Additionally, impeachment evidence is generally insufficient to warrant a new trial. See Commonwealth v. Sleeper, 435 Mass. 581, 607 (2002).
Moreover, the new DNA evidence did not render the inconclusive DNA results entered at trial incorrect. Compare Commonwealth v. Sullivan, 469 Mass. 340, 352–353 (2014) (affirming order granting defendant's motion for new trial in light of new DNA evidence establishing that DNA evidence at trial, which provided positive link between victim and defendant, was incorrect). Accordingly, the defendant has not met his heavy burden of demonstrating that the judge abused his discretion in denying his motion on this ground.
2. Ineffective assistance with respect to DNA evidence. To establish ineffective assistance of counsel, the defendant must show that counsel's conduct fell “measurably below that which might be expected from an ordinary fallible lawyer” and that, as a result, the defendant was “likely deprived ... of an otherwise available, substantial ground of defen[s]e.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “The defendant's trial counsel [is] under a duty ... to conduct an independent investigation of the facts, including an investigation of the forensic, medical, or scientific evidence on which the Commonwealth intended to rely to prove the defendant's guilt.” Commonwealth v. Baker, 440 Mass. 519, 529 (2003).
As an initial matter, the defendant has not submitted, pursuant to his instant motion, evidence establishing that the DNA test used by his own expert was available at the time of his trial in 2003. The defendant's DNA expert's report can be read to suggest the opposite. Additionally, the defendant's new DNA evidence was classified by the judge, with no apparent dispute by the defendant, as newly discovered evidence, again suggesting that this new DNA evidence was not available in 2003. Therefore, we cannot conclude, based on the record before us, that defense counsel could have obtained these new DNA results if he had investigated the DNA issue prior to trial, and that therefore, defense counsel performed unreasonably in failing to so investigate.
To the extent that the defendant argues that counsel was ineffective for failing to seek to exclude the DNA evidence at trial, the cases discussed above, including Mathews, 450 Mass. at 858, and Nesbitt, 452 Mass. at 236, were not available to guide the trial judge at the time. We decline to conclude that trial counsel performed ineffectively for failing to foresee these changes in the law. Moreover, with respect to any claims by the defendant that relate to whether DNA evidence was admitted in error, because the defendant did not object to the admission at trial of the DNA evidence, we review the evidence to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). “An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not materially influence[ ] the guilty verdict. In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error, and whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision.” Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (citations and quotations omitted).
The Supreme Judicial Court has stated that Mathews, issued in 2008, “set forth a guidepost for future cases” concerning the admission of DNA test results. See Nesbitt, 452 Mass. at 253.
See Commonwealth v. Randolph, 438 Mass. 290, 295–296 (2002) ( “Our recent opinions have ... equat[ed] the ineffective assistance of counsel standard to the substantial risk standard in cases where waiver stems from an omission by defense counsel. See Commonwealth v. Azar, [435 Mass. 675, 686 (2002) ] ). See also Commonwealth v. Peters, 429 Mass. 22, 31 n. 12 (1999) (“These two doctrines, in a case like this, are virtually coextensive”). Thus, when a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel, as this defendant has, we do not evaluate the ineffectiveness claim separately. If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice—ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregard it if it did not.
The defendant also argues that trial counsel's performance was constitutionally defective because he failed to subject the DNA expert to a more rigorous cross-examination, or investigate or introduce evidence concerning the statistical significance of the DNA evidence admitted at trial. While we agree that there was testimony from the Commonwealth's expert that was vulnerable to a more penetrating examination had counsel had the benefit of a DNA expert with whom to consult, as previously mentioned, counsel did succeed in eliciting testimony that any male could have been the donor of the secondary source. In addition, in closing argument, counsel framed the DNA evidence as exculpatory. In short, his conduct did not fall “measurably below that which might be expected from an ordinary fallible lawyer.” See Saferian, 366 Mass. at 96.
3. Ineffective assistance concerning Grievson's 2003 e-mail. We discern no error or abuse of discretion in the judge's denial of the motion on this ground. In the order denying the first motion for new trial, the judge found that Grievson's affidavit was not credible, and inconsistent with her prior statement to the police. The defendant argues that Grievson's e-mail clarifies her affidavit and “corrects” her statement to the police. We agree with the judge that Grievson's e-mail does not assist the defendant—it does not add to the credibility of Grievson's affidavit, and it is noticeably inconsistent with the statement she made to the police.
Specifically, although Grievson asserted in her e-mail to trial counsel that she never mentioned the defendant's name while providing her statement to police, the statement, which had been memorialized, contained more than a half-dozen references to the defendant. Moreover, Grievson initialed, signed, and dated her statement to police, thereby vouching for the accuracy of such.
Order dated March 22, 2010, denying motion for new trial affirmed.
Order dated July 31, 2013, denying motion to amend and reconsider motion for new trial affirmed.