Heard: May 10, 2016.
found and returned in the Superior Court Department on May
review by the Supreme Judicial Court, 455 Mass. 840 (2010),
the cases were tried before Timothy Q. Feeley, J.
R.D. Suchecki for the defendant.
Catherine L. Semel, Assistant District Attorney, for the
defendant, Alexander Mattei, appeals from his convictions of
assault with intent to rape and assault and battery. On
appeal, the defendant challenges: (1) the admission of
testimony of a substitute DNA analyst; (2) the judge's
ruling curtailing cumulative cross-examination regarding what
effect information regarding the criminal histories of other
workers at the victim's residence might have had on the
police investigation; (3) the judge's failure to give a
Bowdeninstruction; and (4) statements by the
prosecutor in closing argument. We affirm.
April, 2002, the defendant and three other inmates were on
work release from the Lawrence Correctional Alternative
Center on the day of the incident. They were working at a
housing complex for the elderly and disabled, which is run by
the Andover Housing Authority. The victim, a resident of the
housing complex, was attacked in her apartment and
"sustained numerous trauma about her face." She was
taken by ambulance to the hospital for treatment. From there
the victim was transferred to New England Medical Center,
where she was treated by eye specialists.
The substitute analyst.
defendant claims that admission of the deoxyribonucleic acid
(DNA) opinion testimony of crime laboratory analyst Brian
Cunningham violated his confrontation rights because
Cunningham: (1) did not conduct the DNA testing in this case;
(2) was not employed by the crime lab at the time the testing
was conducted by analyst Stacey Edward; and (3) reached a
conclusion that "conflicted in significant part"
with the conclusion of the analyst (Edward) who conducted the
DNA testing concerning two key pieces of evidence (mixed
sample DNA recovered from the defendant's sweatpants and
the interior doorknob of the victim's apartment).
trial, the defendant objected to Cunningham's testimony
only because Edward had conducted the original testing. There
was no error in the admission of the testimony. An expert may
testify as to his opinion, even if it is based on work
conducted by another analyst. See Commonwealth
v. Nardi, 452 Mass. 379, 390-391 (2008);
Commonwealth v. Barbosa, 457 Mass.
773, 786 (2010); Commonwealth v.
Grady, 474 Mass. 715 (2016) (substitute analyst may
testify to own opinion based on substitute analyst's
review of underlying data).
defendant made no reference in his objection to the timing of
Cunningham's employment at the lab or the nature of
Cunningham's conclusions. Cunningham testified that the
testing of each item had been conducted by Edward; he had
reviewed her testing and reached his own conclusions that
formed the basis for his testimony in court. According to the
defendant, effective confrontation was hampered by the fact
that Cunningham was not employed at the lab at the time the
testing was conducted and that his opinion regarding the
results conflicted with the original analyst.
defendant relies on Commonwealthv.Tassone, 468 Mass. 391 (2014), to support his
argument that his confrontation rights were abridged because
Cunningham was not employed at the lab when Edward conducted
the test. This case is distinguishable from Tassone,
in which the testifying expert was never employed by the lab
that performed the testing and, therefore, had no personal
knowledge of its evidence handling and testing protocols. See
Id. at 401. Here, Cunningham was employed by the lab
that conducted the DNA analysis and testified to his
familiarity with the protocols and review procedures during
the relevant time period. Cunningham's employment at the
lab began one month after Edward performed the DNA analysis
in 2002; thus, Cunningham was working there in March, 2003,
when Edward's work underwent ...