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Commonwealth v. Sullivan

Supreme Judicial Court of Massachusetts, Middlesex

November 16, 2017

COMMONWEALTH
v.
GERALD SULLIVAN

         Heard: April 7, 2017.

         Indictments found and returned in the Superior Court Department on June 30, 2011.

         The 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.

          Leslie W. O'Brien for the defendant.

          Jessica Langsam, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney, also present) for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.

          GAZIANO, J.

         A 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.[1] 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 of guilt.

         1. Facts.

         We recite the facts the jury could have found, reserving certain facts for later discussion.

         At approximately 10 £.M. on February 18, 2011, John and Darlene Vieira[2] 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.

         Vieira 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.

         During 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.

         On a Friday night in February, 2011, [3] 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.

         Investigating 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.

         In 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.

         Based 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.

         2. Prior proceedings.

         The 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.[4] 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.

         After 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) .

         We 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, [5] 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.

         3. Discussion.

         The 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).

         a. Sufficiency of the evidence.

         In 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 ...


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