Opinion
18-P-294
10-02-2019
COMMONWEALTH v. Reginald REMY, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of aggravated rape and forcible rape of his daughter, where some of the key evidence was so-called "Y-STR DNA" found on the victim's underwear. On appeal, the defendant contends (1) that there was insufficient evidence to support the convictions, and (2) that statements the prosecutor made in closing argument regarding the deoxyribonucleic acid (DNA) evidence require a new trial. We affirm.
Background. On Easter weekend of 2014 the victim, then seven years old, and her older sister were dropped off for an overnight stay at the home of the victim's paternal grandmother (the defendant's mother). The defendant was divorced from the victim's mother, and did not live with the victim.
We recite the evidence at trial in the light most favorable to the Commonwealth, as required by Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
On the evening in question the defendant came over to his mother's house, arriving at approximately 1 A.M. He awakened the household, and asked the victim to leave the grandmother's bedroom and to come into another room in the house, and to lie with him on an air mattress. After some "normal" conversation and play, the defendant began asking the victim "weird questions" of a sexual nature. Thereafter the defendant pulled down the victim's underwear, told her to spread her legs and licked her on her "front down private part." Afterwards, the victim's underwear was pulled up, and she wore the underwear for the rest of the night.
The next day the victim told her mother what had happened. The mother spoke to the police and then brought the victim to a facility to have a medical exam. The mother also brought two pairs of underwear "that [were] in [the victim's] bag from staying out that weekend." One pair was colored purple. The purple underwear was subsequently inspected and tested at the Massachusetts State Police Crime Laboratory. The purple underwear (1) had a "white stain" on the interior crotch area, (2) tested positive for amylase, which is found in, among other things, human saliva, and (3) upon testing for Y-STR DNA, revealed a Y-STR DNA profile that matched the defendant's Y-STR DNA profile.
In closing argument, defense counsel claimed that the victim was not telling the truth, and pointed out that the Y-STR DNA test that was performed on the sample from the purple underwear only yielded the DNA profile of the Y chromosome contributor to that DNA. Accordingly, although defendant's counsel did not contest that the Y-STR DNA from the underwear matched the defendant's, defense counsel pointed out, apparently correctly, that the Y-STR DNA profile from the purple underwear would also match any male member of the defendant's "paternal line" -- including his brothers, his sons, and his nephews. The prosecutor responded to this argument in her closing.
The defendant was convicted of aggravated rape of a child under twelve years of age, and forcible rape of a child under sixteen years of age.
Discussion. The defendant argues that the evidence was insufficient to convict. The focus of his argument is his claim that the Commonwealth failed to establish that the purple underwear that was tested was the underwear that the victim was wearing at the time of the rapes. The victim could not recall what underwear she was wearing, and the mother did not testify to knowledge of the chain of custody for the two pairs of underwear that she brought to the authorities, and that were eventually tested.
The defendant is correct that the evidence connecting the purple underwear to the incident was thin, but that argument does not avail the defendant here. As the Commonwealth points out, there was sufficient evidence to convict without the DNA evidence. The testimony of the victim by itself established all the elements of the crimes. The supporting DNA evidence, while powerful, was not necessary. There was sufficient evidence to convict under Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
While thin, the evidentiary foundation for the underwear was sufficient. "[S]ubsidiary facts need only be proved by a preponderance of the evidence." Commonwealth v. Edwards, 444 Mass. 526, 543 (2005). As noted, the mother testified that she "brought [to the authorities] the underwear that was in her [daughter's] bag from staying out that weekend." There was no objection to this statement, nor was there a motion to strike. The jury could infer that the victim wore one of the two pairs of underwear in the bag on the night in question. Moreover, in light of the victim's testimony about what the defendant did to her, the jury likely could infer simply from the presence of the amylase, and the Y-STR DNA profile, that the victim had been wearing the tested underwear at the time of the incident.
The defendant also argues that the prosecutor overstepped her bounds in closing argument, by seriously mischaracterizing the DNA evidence. He complains in particular about two passages:
(1) "You heard evidence, ladies and gentlemen, from [the victim] about what happened. You heard she pulled up her underwear when it was over. You heard that her mother got two pairs of underwear from her. You heard that the underwear were submitted in the evidence collection kit, that the Brookline Police took it back to the station, put it in cold storage, that it was then submitted to the lab where it was held in cold storage, where it went through the criminalistics testing with Karen McDermott, where it was returned to cold storage, and then Elisse Coronado completed her testing of the interior crotch. You heard the stipulation that Counsel and myself agree that that was in fact the defendant's YSTR DNA profile" (emphasis added).
(2) "In this case, ladies and gentlemen, the DNA is, I would suggest to you, important to consider. Jennifer Montgomery told you about the various agencies that contribute to the [database] used, she told you ... that there are a number of agencies that rely on this database and again, I would ask that you focus on the fact that these aren't partial profiles, these aren't mixed profiles, sometimes they told you you'll get a mixture of more than one person's DNA, this is one person's DNA, it is a full profile, it is a full match, and 90 -- over 99.9 percent of the population is excluded as being the source of that DNA" (emphasis added).
"In closing argument, a prosecutor may not ‘misstate the evidence or refer to facts not in evidence.’ " Commonwealth v. Joyner, 467 Mass. 176, 188-189 (2014), quoting Commonwealth v. Lewis, 465 Mass. 119, 129 (2013). However, a prosecutor may zealously advocate for conviction based on the evidence, and may even permissibly deploy "[e]nthusiatic rhetoric, strong advocacy, and excusable hyperbole" (quotation and citation omitted). Commonwealth v. Collazo, 481 Mass. 498, 504 (2019). Moreover, we must review the prosecutor's closing argument as a whole, rather than focus on isolated bits. See Commonwealth v. Coren, 437 Mass. 723, 730-731 (2002). Also, as the trial judge instructed the jury, the "closing argument is not evidence." Commonwealth v. Alvarez, 480 Mass. 299, 324 (2018), quoting Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). Further, "[jury] instructions may mitigate any prejudice in the final argument." Id.
As to the first of the challenged passages, we discern no error. The defendant reads the passage as asserting that the defendant stipulated that the DNA on the purple underwear was the defendant's DNA. In the context of the entire closing, we do not so read it. In the immediately preceding paragraph, the prosecutor argued to the jury the evidence showing that the DNA from the underwear matched the DNA from the defendant's buccal swab -- thereby indicating that the issue was not stipulated. Moreover, and importantly, the prosecutor also acknowledged that the Y-STR DNA profile from the purple underwear was not unique to the defendant:
"[T]hat full YSTR DNA profile, from the interior crotch of those purple underwear, matched this defendant's full YSTR DNA profile from the buccal swab. You saw the side by side comparison and you will see that Exhibit when you go back to deliberate, that the numbers all match at all sixteen locations and, yes, the men in the paternal line will share the same YSTR DNA profile, it is the male profile."
Reviewing the argument as a whole, we read the first challenged passage as saying nothing more than that the parties stipulated that the Y-STR DNA profile from the defendant's buccal swab was the defendant's Y-STR DNA profile. This was in fact the gist of the stipulation.
The stipulation states that the "information contained in the November 16, 2015 ‘Y-STR Results Table’ report ... from the Massachusetts State Police Crime Laboratory ... contains the Y-STR DNA profile of the defendant, generated from ... the known saliva standard of the defendant."
The second challenged statement does not yield grounds for a new trial either. It is true that the prosecutor's employment of the terms "full profile," and "full match," were questionable at best, given the evidence that the Y-STR DNA profile that was generated and admitted into evidence was not a complete DNA profile (that is, one that analyzed both X and Y chromosomes).
Again however, during her closing the prosecutor had correctly identified the limitations of the Y-STR DNA evidence when, only a few minutes before, she noted that anyone in the defendant's "paternal line" would have the same Y-STR DNA profile. And the jury were aware of the limitations of the YSTR DNA from the evidence at trial, and the arguments of defendant's counsel. Those limitations were not contested. In addition, in response to an objection the judge gave a specific curative instruction concerning this portion of the prosecutor's argument, referencing in particular the prosecutor's use of the word "match." This was in addition to the standard instruction that the prosecutor's argument was not evidence. Under the circumstances we cannot say that the argument had a material impact on the jury.
After the closing, the judge instructed: "There's been testimony here concerning DNA profiles, and there's been testimony about whether or not defendant could not be excluded, and there was statistical testimony, so you need to recall that testimony.... if there was any reference to the term match in any way, you have to take it in the context that there was non-exclusion and there was statistical testimony that was given to you during the course of the trial evidence."
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Judgments affirmed.