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Commonwealth v. Mattei

Appeals Court of Massachusetts, Essex

October 27, 2016

COMMONWEALTH
v.
ALEXANDER MATTEI.

          Heard: May 10, 2016.

         Indictments found and returned in the Superior Court Department on May 22, 2002.

         Following review by the Supreme Judicial Court, 455 Mass. 840 (2010), the cases were tried before Timothy Q. Feeley, J.

          Karl R.D. Suchecki for the defendant.

          Catherine L. Semel, Assistant District Attorney, for the Commonwealth.

          CYPHER, J.

         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 Bowden[1]instruction; and (4) statements by the prosecutor in closing argument. We affirm.

         Background.

         In 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.

         1. The substitute analyst.

         The 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).

         At 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).

         The 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.

         The 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 ...


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