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Commonwealth v. DiCicco

Supreme Judicial Court of Massachusetts, Middlesex

February 26, 2015

Robert DiCicco

Argued: November 4, 2014

Indictment found and returned in the Superior Court Department on September 27, 1983.

A motion for postconviction relief, filed on November 28, 2007, was heard by Diane M. Kottmyer, J., and a motion for additional funds for the services of an expert witness was considered by her.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

David J. Nathanson ( Michael A. Nam-Krane with him) for the defendant.

Hallie White Speight, Assistant District Attorney, for the Commonwealth.

Sara A. Colb, for New England Innocence Project, amicus curiae, submitted a brief.

Ira L. Gant & Lisa M. Kavanaugh, Committee for Public Counsel Services, & Elizabeth A. Lunt, for Committee for Public

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Counsel Services Innocence Program & another, amici curiae, submitted a brief.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.


Cordy, J.

[25 N.E.3d 862] In 1984, the defendant was convicted by a jury of aggravated rape. In July, 2005, the Superior Court clerk's office in Middlesex County located the trial exhibits, including the victim's blue jeans and underpants. They had been stored in plastic bags since the trial. Beginning in January, 2006, the defendant filed a series of motions to test the evidence for deoxyribonucleic acid (DNA). These motions were granted and the State police crime laboratory (crime laboratory) and Orchid Cellmark (Cellmark), an independent laboratory, performed DNA testing on the victim's clothing. The defendant subsequently moved for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (1995), relying on the affidavit of Eric Carita (Carita), a forensic analyst employed by the Connecticut State laboratory,[1] who opined that the defendant was excluded as the source of the male DNA on the victim's jeans based on " potential alleles." [2] In July, 2010, a judge in the Superior Court (motion judge) held a two-day evidentiary hearing on the defendant's motion for postconviction relief, at which Carita and Christine Lemire, the crime laboratory analyst who performed the DNA analysis,[3] testified.

Subsequently, on March 28, 2011, the judge denied the defendant's motion for a new trial in a detailed memorandum of decision and order. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the denial. See Commonwealth v. DiCicco, 84 Mass.App.Ct. 1128, 1 N.E.3d 294 (2014). We granted the defendant's application for further appellate review and conclude that the motion judge did not abuse her discretion in determining that, under Commonwealth v. Lanigan, 419 Mass. 15, 25-26, 641 N.E.2d 1342 (1994), Carita's opinion was not sufficiently reliable to be placed before a jury, and the defendant's motion for a new trial was properly denied.

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We consider the facts as set forth in the motion judge's findings after an evidentiary hearing, which are supported by the evidence in the record.[4] See Commonwealth v. Stephens, 451 Mass. 370, 372, 885 N.E.2d 785 (2008).

1. Evidence at the 1984 trial.

In August, 1983, the victim was walking home through a parking lot in Waltham sometime after 1:30 a.m. when she was attacked by two men. One of these men, later identified as Vincent Park,[5] grabbed the victim and forced her to the ground. While Park pinned the victim down, the second man, subsequently identified as the defendant, pulled the victim's jeans and underwear down to her ankles. As she struggled, the second man raped her vaginally. The first man called the second [25 N.E.3d 863] man " Chick" and said something about his " turn."

While the rape was occurring, a van entered the parking lot and illuminated the area with its headlights such that the victim could see the second man. This man then stood up and urinated on and around the victim. The two men then ran from the parking lot with the van in pursuit. The victim had trouble getting up because she kept slipping on the urine, but on doing so, she ran to a telephone booth and called her father. The police were called and the victim went to the hospital, where evidence was collected and the victim was interviewed. Two hours after the rape, the victim told police that she thought she had seen the second man before and that his name was Robert or " Chico." Additionally, she provided the police with a physical description of the second man. The police took the evidence, including the victim's clothing, when leaving the hospital.

Later that morning, the victim went to the police station, looked through two books of photographs, and positively identified the defendant as the person who had raped her. The police located the defendant at a local shelter at 6:45 a.m. Although the defendant had been scheduled to be at the shelter the previous night, he did not arrive until shortly before the police looked for him there. The defendant fit the description of the second man provided by the victim. At trial, the victim identified the defendant again.

At trial, the parties stipulated that Mark Grant, a State police chemist, would testify to facts contained in his October, 1983, report, that chemical tests conducted on a stain on the victim's

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underwear did not exclude the defendant as the source, but were inconclusive as to anything further. The tests, conducted both on the stain and on a vaginal smear slide taken from the rape kit administered to the victim after the attack, were positive for the presence of a substance characteristically found in semen, but no sperm cells were found.

The defendant was convicted and sentenced to a term of not more than twenty years or less than eighteen years in State prison. On April 26, 1985, the Appeals Court affirmed the defendant's conviction, Commonwealth v. DiCicco, 19 Mass.App.Ct. 1115, 477 N.E.2d 614 (1985). After completing his sentence, the defendant was found to be a sexually dangerous person and was committed to the Nemansket Treatment Center at Bridgewater.

2. Postconviction proceedings.

In January, 2006, after the Superior Court clerk's office located the trial exhibits,[6] the defendant filed a motion for necessary access to test evidence for DNA, a motion for funds to do comparison DNA testing, and a request for discovery and access to the smear slide. These motions were granted subject to the parties' filing a stipulation as to protocols for handling and testing the DNA evidence and subject to the availability of the smear slide.[7]

In July, 2006, the defendant's motion for funds for a defense expert, Thomas Fedor of the Serological Research Institute, to observe the inventory and evidence assessment at the crime laboratory was granted. Later that month, the Commonwealth filed a stipulation for release and testing of the evidence, wherein the parties agreed that portions of the victim's jeans and underpants would be released for testing. This stipulation was approved and Fedor was [25 N.E.3d 864] present in November, 2006, when the clothing was examined at the crime laboratory.

a. Results of the crime laboratory DNA testing.

In December, 2006, the victim's clothing was examined at the crime laboratory. No sperm cells or seminal fluid residue was detected in the stains on the victim's underpants. Several stains were observed on the exterior and interior of the jeans, and sperm cells were detected in three of them. Cuttings were then taken from these three stains (stains 9, 13, and 14). Only stains 13 and 14 are relevant on

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appeal.[8], [9]

The crime laboratory[10] extracted DNA from the above mentioned cuttings and performed short tandem repeat (STR) testing/typing (specifically Y-STR testing)[11] on stains 13 and 14. The Y-STR DNA testing is conducted first by subjecting the sample to a process of " differential extraction" which separates any sperm cells (sperm fraction) from epithelial cells (nonsperm fraction). On stain 13, the crime laboratory concluded that the defendant was excluded as the source of the nonsperm fraction DNA,[12] but that there was insufficient DNA for analysis in the sperm fraction, as the only result was a single " potential allele," falling below the threshold at which alleles can be positively identified, at locus DYS456.[13] As for stain 14, the crime laboratory concluded [25 N.E.3d 865] that

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there was a mixture of more than one male source in the nonsperm fraction, which yielded inconclusive results for comparison with the defendant's DNA, that is, he could not be included or excluded as one of the contributors. With respect to ...

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