Heard: December 6, 2017.
found and returned in the Superior Court Department on
December 19, 2013.
cases were tried before Renee P. Dupuis, J.
Michelle Menken for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the
Present: Milkey, Henry, & Wendlandt, JJ.
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),  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.
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.
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. The surveillance recordings
also captured a white vehicle matching the make and model of
the defendant's mother's vehicle.
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,
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.
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. 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.
T-shirt samples, the major profile matched the
defendant's DNA profile. One of the major profiles of the
bandana also matched the defendant's DNA
profile. The DNA analyst could not determine when
any of the ...