Supreme Judicial Court of Massachusetts, Middlesex
April 7, 2017.
found and returned in the Superior Court Department on June
cases were tried before S. Jane Haggerty, J., and a motion
for a new trial, filed on September 9, 2015, was heard by
Edward P. Leibensperger, J.
W. O'Brien for the defendant.
Jessica Langsam, Assistant District Attorney (Elizabeth A.
Dunigan, Assistant District Attorney, also present) for the
Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.
Superior Court jury convicted the defendant of felony-murder,
with the predicate felony of armed home invasion, in the
shooting death of Johnny Hatch on February 18,
2011. In this direct appeal, the defendant
argues that the evidence was insufficient to support his
convictions. He also challenges several evidentiary rulings
concerning the introduction of testimony about
deoxyribonucleic acid (DNA) found on objects at the crime
scene, and testimony concerning the use of a DNA profile of
the defendant stored in the Combined DNA Index System (CODIS)
database, which was described to the jury as a "national
database." In addition, the defendant maintains that the
motion judge erred in denying his motion for a new trial on
the ground that the Commonwealth did not provide exculpatory
evidence concerning a forensic scientist's failure to
pass required proficiency tests. We conclude that the
evidence was sufficient to support the convictions, and that
none of the asserted errors in the trial proceedings requires
a new trial. Further, having carefully reviewed the record,
pursuant to our duty under G. L. c. 278, § 33E, we
discern no reason to exercise our extraordinary authority to
grant a new trial or to reduce the verdict to a lesser degree
recite the facts the jury could have found, reserving certain
facts for later discussion.
approximately 10 £.M. on February 18, 2011, John and
Darlene Vieira were in their apartment in West Medford.
Vieira's adult son, Johnny Hatch, was staying with them
that night. Hatch heard someone at the door and asked Vieira
whether he was expecting anyone. Although he was not
expecting visitors, Vieira walked to the front door and asked
who was there. When he was unable to understand the response,
he opened the door. As soon as Vieira opened the door, two
men dressed in black, wearing ski masks and gloves, attacked
and overpowered him. One said, "Where's the money
and the jewelry?" or "We want your money and your
jewelry." One of the men was stocky and shorter than the
other, approximately five feet, nine inches tall; the other
was tall and thin.
called to Hatch who ran into the living room, pulled the
taller, thinner man away from Vieira, and fought with him,
approximately seven or eight feet from where Vieira and the
stocky man were struggling. Hatch used a mallet and a length
of metal pipe to hit the taller man on the head and
shoulders. Vieira then heard a shot and saw his son lying on
the floor. The taller man looked at Vieira, who was on his
knees, and shot him in the head. Vieira heard one of the men
say, "They're dead, " and felt his body being
rolled away from the door, before he lost consciousness.
the struggle, Darlene Vieira heard gunshots from her bedroom.
She telephoned 911 while hiding on the side of her bed.
Police arrived on the scene shortly after the gunshots were
fired. Officers found Vieira bleeding from the side of his
head. Vieira was transported to the hospital and recovered;
Hatch was pronounced dead at the scene.
Friday night in February, 2011,  Sarah Rabbitt, a friend of
the defendant, had planned to get together with the defendant
and other friends, but had difficulty reaching him. When
Rabbitt finally spoke with the defendant sometime between
11:30 £.M. and midnight, she asked where he had been.
The defendant said that he had been at a friend's house.
Rabbitt noted that the defendant had a "little cut"
and "some blood" on his head. The defendant told
her that he had been in a fight in East Boston.
officers seized a number of items from the crime scene,
including a mallet and a length of metal pipe, a mask, a
black hat, a blue hat, and a jacket hood. The investigation
focused on individuals who might have had a connection to
Vieira, who was known to investigators as a drug dealer, but
they were unable to develop any leads.
March, 2011, a State police chemist conducted DNA testing of
swabs taken from the black hat, the blue hat, the mallet
head, and the length of pipe. She uploaded the profiles into
the CODIS database to search for a match. The DNA on the
black hat, the mallet, and the pipe matched the
defendant's DNA profile.
on these results, police obtained a buccal swab from the
defendant, which was submitted to the State police crime
laboratory for DNA testing. A different State police chemist
determined that the DNA on the mask matched the
defendant's DNA, and that the defendant's DNA also
matched the major profile from a mixed profile on the jacket
hood; Hatch and Vieira were excluded from this profile. The
defendant's DNA profile generated from this swab also
matched the major profile on the black hat and the profiles
of the DNA on the mallet and the length of pipe.
defendant was arrested and indicted on charges of murder in
the first degree, G. L. c. 265, § 1; armed assault with
intent to murder, G. L. c. 265, § 18 (b); two counts of
armed home invasion, G. L. c. 265, § 18C; assault and
battery by means of a dangerous weapon, G. L. c. 265, §
15A (c0 (i); armed assault with intent to rob, G. L. c. 265,
§ 18 (b); carrying a firearm without a license, G. L. c.
269, § 10 (a.); and possession of a firearm without a
firearm identification card, G. L. c. 269, § 10 (h). On
June 25, 2013, the jury returned guilty verdicts on all
counts. The jury found the defendant guilty of
felony-murder in the first degree, with the predicate felony
of armed home invasion of the Vieira home.
the defendant filed his notice of appeal, the Commonwealth
provided his counsel with a notice of postverdict discovery
indicating that former State police crime laboratory
criminalist Erik Koester had failed a number of proficiency
tests. Based on this, in October, 2015, the defendant filed a
motion for a new trial and a motion for discovery. In that
motion, the defendant argued that evidence that Koester had
failed the proficiency tests was relevant and exculpatory,
and that this evidence would have been admissible as part of
a Bowden defense. See Commonwealth v.
Bowden, 379 Mass. 472, 485-486 (1980) .
allowed the defendant's motion to stay the proceedings in
this court so that he could pursue his motion for a new trial
in the Superior Court. A Superior Court judge (motion judge),
who was not the trial judge,  denied the defendant's motion
for a new trial, and we consolidated the defendant's
appeal from the denial of that motion with his direct appeal.
defendant argues that the evidence was insufficient to
support his convictions because the Commonwealth did not
prove that he was armed when he entered the victims'
apartment. The defendant contends also that testimony that
DNA taken from items found at the crime scene matched his DNA
profile in the CODIS database was inadmissible hearsay and a
violation of his right to confrontation. The defendant
further argues that the motion judge erred in denying his
motion for a new trial on the ground that evidence of a State
police criminalist's failure to meet proficiency
standards was exculpatory under Brady v. Maryland,
373 U.S. 83, 87-88 (1963).
Sufficiency of the evidence.
determining whether the record is sufficient to support a
conviction, we consider "whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt." Commonwealth v. Latimore, 378 ...