Opinion
09-P-1674
10-14-2011
COMMONWEALTH v. ALEXIS MIDDLETON (and twenty-five companion cases ).
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
The defendants, Alexis Middleton and Donnell Nicholson (collectively, defendants), were each convicted in Superior Court of home invasion, in violation of G. L. c. 265, § 18C, aggravated rape, in violation of G. L. c. 265, § 22(a), and armed assault in a dwelling, in violation of G. L. c. 265, § 18A; two counts of indecent assault and battery, in violation of G. L. c. 265, § 13H; four counts of kidnapping, in violation of G. L. c. 265, § 26; and four counts of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A.
The defendants appeal from these convictions, arguing that their right to confrontation under both the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights was violated when Commonwealth expert Cailin Lally Drugan recited verbatim reports of two nontestifying deoxyribonucleic acid (DNA) analysts, and was allowed to display chalks of said reports to the jury at trial. The defendants further argue that Drugan's testimony to her own independent opinion on the information contained in the reports was inadmissible. The defendants claim that the admission of this evidence also violated their right to confrontation, and requires reversal of their convictions.
The defendants also argue that Drugan never in fact offered her own independent opinion on the probability of a DNA match between Middleton and the swab taken from the mouth of one of the victims. This, the defendants argue, increases the likelihood that the erroneous admission of the DNA reports constituted prejudicial error, the standard of review for wrongfully admitted hearsay evidence.
Nicholson alternatively appeals his home invasion conviction, arguing that the trial judge erred in denying his motion for a required finding on that charge on the grounds that one of the elements of the offense was not met, namely, the requirement that Nicholson knew or should have known that occupants were present in the house before he entered it. Nicholson also challenges the jury instruction given for the home invasion charge on the grounds that the judge did not adequately explain the required elements of the offense.
Discussion. The defendants argue, and the Commonwealth concedes, that Drugan's recitation of reports of other analysts was inadmissible hearsay. See Commonwealth v. Barbosa, 457 Mass. 773, 785-786 (2010). So too were the chalks presented to the jury during Drugan's testimony. Ibid.
Drugan's independent opinion on the DNA results, however, was admissible. 'An expert may give opinion testimony based on hearsay when the particular hearsay would be independently admissible if presented by the 'right witness' or with a proper foundation, and if it is the type of evidence on which experts customarily rely as a basis for opinion testimony.' Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 343 (2011), citing Barbosa, 457 Mass. at 784-785. Furthermore, '[e]xpert testimony by a laboratory supervisor concerning the statistical probability that another individual's DNA would match the DNA profile in question does not violate the confrontation clause, even when the opinion is based on test data not properly admitted in evidence.' Ibid. Such is the situation here.
Nicholson argues that because Drugan did not precisely state that she agreed with DNA analyst Rachel Chow's probability analysis directly after reciting those results, Drugan did not express her own opinion on the likelihood of the match. However, taking Drugan's testimony as a whole, it is evident from the record that she expressed agreement with all of Chow's conclusions, including those regarding the statistical likelihood of the match. When asked what her conclusions were after reviewing Chow's findings, Drugan answered: 'I agreed with her conclusions.' This statement was admissible. See ibid. See also Barbosa, 457 Mass. at 784-785.
The expert testimony was objected to on hearsay grounds, and the chalks were not. As such, we review the hearsay portions of Drugan's expert testimony for prejudicial error, and the admission of the chalks, if error, for a substantial risk of a miscarriage of justice. See Barbosa, 457 Mass. at 792; Commonwealth v. Greineder, 458 Mass. 207, 237 (2010). The defendants argue that the appropriate standard of review for the expert testimony is harmlessness beyond a reasonable doubt. We disagree. Neither defendant precisely raised a constitutional objection to any part of the expert testimony, and the circumstances here are similar to those in Greineder, in which the harmless error standard was not used. See id. at 237-239.
The properly admitted evidence in this case was overwhelming. Drugan stated her opinion that Middleton's DNA was found in the rape victim's mouth, and her opinion that a DNA mismatch was extremely improbable. Both statements were admissible and highly probative of the defendants' guilt. This opinion evidence, combined with the testimony of the cooperating witness and the wiretap evidence, provided ample evidence to convict both defendants, even had the improperly admitted hearsay evidence been excluded.
Furthermore, concerning Nicholson's appeal from his home invasion conviction, we conclude that there was no reversible error in denying his motion for a required finding. The conviction was supported by the evidence and the judge's instruction was proper. The Supreme Judicial Court has held that G. L. c. 265, § 18C, 'applies either to entry while one knows or has reason to know that one or more persons are present within or to entry without such knowledge but then remaining in the dwelling place after acquiring or having reason to acquire such knowledge.' Commonwealth v. Ruiz, 426 Mass. 391, 392-393 (1998). There was sufficient evidence on the record to support the intent element of the home invasion conviction. The cooperating witness stated that the defendants planned the home invasion and the robbery with the intent of either confronting the victims if they were present in the house, or ambushing them upon their return. The testimony of the four victims in this case indicated that the defendants employed the latter strategy, and remained in the house upon the victims' return. Based on the testimony of both the cooperating witness and the victims, a rational trier of fact could have found that the intent requirement was met.
Finally, the instruction given to the jury on the home invasion charge adequately presented the required elements of the charge. 'A trial judge has wide latitude in framing the language to be used in jury instructions as long as the instructions adequately explain the applicable law.' Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009) (quotation marks and citation omitted). 'The judge [is] not bound to instruct in the exact language of the requests' and '[t]he test of the charge is the impression created by it as a whole.' Ibid., quoting from Commonwealth v. Kelley, 359 Mass. 77, 92 (1971). In this case, the judge's instruction constituted a proper explanation of the applicable law. Thus, Nicholson's motion for a required finding on the home invasion charge was properly denied.
Judgments affirmed.
By the Court (Trainor, Brown & Carhart, JJ.),