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Commonwealth v. Anitus

Appeals Court of Massachusetts, Bristol

April 6, 2018

COMMONWEALTH
v.
JEFFREY ANITUS

          Heard: December 6, 2017.

         Indictments found and returned in the Superior Court Department on December 19, 2013.

         The cases were tried before Renee P. Dupuis, J.

          Michelle Menken for the defendant.

          Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.

          Present: Milkey, Henry, & Wendlandt, JJ.

          WENDLANDT, JUDGE.

         Following a jury trial, the defendant was convicted of armed robbery while masked, pursuant to G. L. c. 265, § 17, and assault by means of a dangerous weapon, pursuant to G. L. c. 265, § l5B(b), [1] On appeal, the defendant argues that there was insufficient evidence to support the conviction under Commonwealth v. Morris, 422 Mass. 254 (1996). Applying the Supreme Judicial Court's jurisprudence regarding the sufficiency of fingerprint evidence found on a moveable object at a crime scene to the deoxyribonucleic acid (DNA) evidence in this case, we agree.

         Background.

         On July 3, 2013, two men broke into a Burger King in Easton at around 11:30 P..M. and stole approximately $3, 000. Both men were described by the restaurant manager, who was present during the robbery, as African-American and wearing blue surgical masks. The first assailant was approximately six feet tall, and armed with a gun; he wore a dark hooded sweatshirt. The second assailant, who wore a tan hooded sweatshirt, was "a little bit taller" than the armed man.

         Surveillance recordings from the Burger King and the neighboring Dunkin' Donuts captured images of both men as they fled the crime scene. The recordings showed the second assailant removing his mask and, as he is fleeing the crime scene, tossing something into the Dunkin' Donuts plaza. His profile was captured in one of the recordings; however, the recording (and the still photographs captured from it) were grainy and of extremely poor quality.[2] The surveillance recordings also captured a white vehicle matching the make and model of the defendant's mother's vehicle.[3]

         One of the police officers who responded to the crime scene discovered two cloth items -- a white toddler-sized T-shirt and a blue knotted bandana -- in the Dunkin' Donuts plaza. The Commonwealth's theory was that the defendant was the second assailant. Based on the recordings, [4] the Commonwealth argued that the second assailant threw the cloth items into the Dunkin' Donuts plaza as he passed it and that he wore the T-shirt as a mask during the robbery, while his coventurer wore the bandana.

         The T-shirt and the bandana were tested for DNA. First, a criminologist collected two samples from the T-shirt -- one from the interior of the T-shirt and one from the exterior. She also collected one sample from the bandana. Each of the samples was collected by scraping the material with a scalpel to loosen any skin cells that may have been imbedded in the fibers and then taking a swab.[5] Second, a DNA analyst tested the samples to determine whether the defendant's DNA matched the DNA on the samples. Each sample from the T-shirt had the DNA of more than one person; the bandana contained DNA from at least three individuals.

         For the T-shirt samples, the major profile matched the defendant's DNA profile.[6] One of the major profiles of the bandana also matched the defendant's DNA profile.[7] The DNA analyst could not determine when any of the ...


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