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Commonwealth v. Linton

Supreme Judicial Court of Massachusetts, Middlesex

September 26, 2019

Damion LINTON.

         Argued December 3, 2018

         [132 N.E.3d 96] Deoxyribonucleic Acid . Practice, Criminal, Postconviction relief. Evidence, Scientific test.

          INDICTMENT found and returned in the Superior Court Department on March 22, 2005.

         Following review by this court, 456 Mass. 534, 924 N.E.2d 722 (2010), a motion for postconviction access to evidence and forensic analysis, filed on December 24, 2014, was heard by Peter M. Lauriat, J.

         A request for leave to appeal was allowed by Gaziano, J., in the Supreme Judicial Court for the county of Suffolk.

          Ira L. Gant, Committee for Public Counsel Services, for the defendant.

         Jessica Langsam, Assistant District Attorney, for the Commonwealth.

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


         GAZIANO, J.

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          We are called upon to consider issues raised by the defendant’s motion for access to evidence and scientific and forensic testing pursuant to G. L. c. 278A.

         In 2006, a Superior Court jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty in the death of his wife, Andrea Harvey, by strangulation. We affirmed his conviction. See Commonwealth v. Linton, 456 Mass. 534, 561, 924 N.E.2d 722 (2010). In 2014, following the enactment of G. L. c. 278A, the defendant sought deoxyribonucleic acid (DNA) testing of nine items of evidence. A few of those items, including a cellular telephone, a drinking glass, and a hair collected at autopsy, have not been tested for DNA. Other items -- swabs taken from various areas of the victim’s body, including two swabs from the right side of the victim’s neck that corresponded to fingernail marks left by the killer -- had been tested for Y-chromosome short tandem repeat (Y-STR) DNA prior to trial and had produced exculpatory results showing no male DNA was present. In his motion for forensic testing, the defendant sought permission to test the evidence using newer and more discriminating Y-STR test kits that had not existed at the time of his conviction. He also sought permission to [132 N.E.3d 97] conduct mitochondrial DNA (mtDNA)[1] testing on the hair.

         After an evidentiary hearing pursuant to G. L. c. 278A, � 7(b), the trial judge denied the defendant’s motion. He determined that the neck swabs no longer existed; three of the items had not been stored in a manner that was likely to yield probative DNA evidence; a reasonably effective attorney would not have sought DNA testing of the hair; the requested DNA testing did not have the potential to produce evidence material to the defendant’s identification as the perpetrator; and newer Y-STR tests did not

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offer a material improvement over previously conducted Y-STR testing. See G. L. c. 278A, � 7(b)(1)-(4). The defendant sought leave to appeal to the full court pursuant to the gatekeeper provision of G. L. c. 278, � 33E, and a single justice of this court allowed his petition.

          We conclude that the judge did not abuse his discretion in denying the defendant’s motion based on the evidence that was presented at the motion hearing.

          1. Background.

          We summarize the facts presented at the hearing on the motion for forensic testing, which included relevant trial transcripts and exhibits.

          a. Crime scene and collection of evidence.

          The victim’s parents discovered the body of their daughter in her apartment, lying on the bedroom floor. Near her head were a drinking glass containing a clear liquid and her cellular telephone. In his closing argument, the prosecutor suggested that the defendant placed the drinking glass and the telephone near the victim in an attempt to make it appear that she had committed suicide. While arguing that the crime scene had been staged, the prosecutor asked the jury, "How in the world was that cup of water not spilled if there was a struggle?"

          The cause of death was manual strangulation. There were multiple abrasions consistent with fingernail marks on the right side of the victim’s neck, hemorrhaging in both of her eyes, a detached hyoid bone inside her neck, and evidence that the perpetrator had kneeled on her chest, causing a large bruise. The medical examiner used a sexual assault evidence kit to collect evidence from the victim’s body. This evidence included the following: head and pubic hair standards; a blood standard; fingernail scrapings from both hands; vaginal swabs; external genital swabs; anorectal swabs; and oral swabs. At the autopsy, the State police collected the victim’s clothing and a "questioned hair." It is unknown whether the police collected the hair from the victim’s clothing or somewhere on her body.

          In addition, the police swabbed the right side of the victim’s neck in an attempt to identify the perpetrator’s DNA. A State police crime laboratory (crime lab) chemist examined the two swabs from the victim’s neck and found no visible stains. Because the police were searching for so-called "touch" or "handler" DNA, and this type [132 N.E.3d 98] of DNA is "considered limited," the chemist conducted no further testing.

          The police also dusted the victim’s neck with black fingerprint powder, and applied adhesive lift tape, in an attempt to recover

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latent fingerprints. The impressions from the lift tape were preserved by transferring them to latent lift paper. The police did not find any fingerprints, and the latent lift paper was not stored as evidence.

          b. DNA testing.

          In May 2005, a Superior Court judge allowed, without objection, the Commonwealth’s motion for authorization to conduct exhaustive testing of the fingernail scrapings and "item 3-2, swabs from the right side of [the victim’s] neck."

         In August 2005, the crime lab sent the following evidence to Orchid Cellmark (Cellmark), a private laboratory, for male Y-STR DNA testing: the swabs from the right side of the victim’s neck; the fingernail scrapings; "cuttings" from the vaginal, external genital, and oral swabs; and the defendant’s known saliva standard.[2] Cellmark "amplified" and "typed" DNA from the submitted samples utilizing the "Yfiler" Y-STR test kit, a kit manufactured by Applied Biosystems, Inc., that was released in 2004. The Yfiler test examines seventeen locations on the Y-chromosome; each location is known as a locus.

          Although the two swabs from the right side of the victim’s neck were consumed during testing, Cellmark had separated DNA from other cellular material, and tested a portion of the resulting "extract." The untested portion of this pure DNA extract remains, in evaporated form, in a test tube.

          After testing, Cellmark returned the DNA evidence, including the test tube, to the crime lab, where it was secured in long-term storage.

          c. Trial testimony.

          Cassie Johnson, a Cellmark forensic DNA analyst, testified to the results of the Y-STR DNA testing. She detected male DNA on the victim’s left-hand fingernail scrapings with results appearing on thirteen of the seventeen loci that were tested. The defendant could not be excluded as a possible contributor to this partial DNA profile.

          Johnson did not detect male DNA on the other samples. In particular, with respect to the swabs taken from the right side of the victim’s neck, she testified, "We might not be able to detect male DNA because it simply isn’t present, or else it could be that male DNA is present but it’s below our level of detection. There’s simply not enough there." She explained that Cellmark set its

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level of detection, based on internal validation studies, at "peaks ... above [their] minimum threshold of one hundred." If a peak does not reach that height, Cellmark analysts "can’t call that result."

          Johnson testified in accordance with Cellmark’s then-existing Y-STR testing guidelines. The guidelines provided, "A true allele is one that falls at or above the threshold value, is clearly above any background noise, and ... has a distinctly shaped peak, as compared to artifacts which commonly appear as a spike or hump." The guidelines further provided, "Based on internal validation studies, the minimum threshold of detection for Y-STR loci is [one hundred] RFUs (relative fluorescence units). In extreme circumstances, this may be lowered to [fifty] RFUs with approval of the technical leader or the laboratory director."

         [132 N.E.3d 99] d. Postconviction proceedings.

         In December 2014, the defendant filed a motion pursuant to G. L. c. 278A for postconviction access to evidence and forensic testing. He requested that the court authorize "PCR-based Y-STR type DNA analysis, using Quantifiler Duo or Quantifiler Trio during the quantitation stage of the STR process," of the following evidence: (1) swabs from the right side of the victim’s neck; (2) vaginal swabs; (3) external genital swabs; (4) anorectal swabs; (5) oral swabs; (6) the victim’s known blood standard; (7) swabs from latent print paper from the victim’s neck; (8) the drinking glass found near the victim’s head; and (9) the cellular telephone found near the victim’s head. The defendant also requested mtDNA testing of the "questioned hair sample" recovered from the victim’s body, and mtDNA testing of the victim’s known blood standard. In support of his motion, the defendant submitted an affidavit from a DNA expert, Dr. Carll Ladd, a senior supervisor and analyst at the Connecticut State forensic laboratory and a forensic DNA consultant. The Commonwealth opposed the motion.

         In January 2015, a Superior Court judge, who had not been the trial judge, found that the defendant had made the minimal preliminary showing necessary under G. L. c. 278A, � 3, in order to proceed to an evidentiary hearing. She then referred all further proceedings to the trial judge.

          In May 2015, the defendant filed a supplemental affidavit from Ladd, which focused on advances at later stages of analysis after the quantification stage. Ladd opined that the samples should be analyzed with two newly available Y-STR testing kits, either the "PowerPlex Y23" or the "Yfiler Plus," that had become available

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in 2014 but that, under national accreditation standards, required a process of internal validation by a given laboratory before it could adopt the test for its own use. He explained, "In the time since my 2014 affidavit, some laboratories, including Cellmark ..., have finished validating and began using a new test kit for [Y-STR] DNA analysis ... called PowerPlex Y23." Other laboratories were at that point validating the Yfiler Plus test, and Ladd "expect[ed] many [would] begin using it for forensic casework in the coming months or as late as early 2016." Ladd asserted that both PowerPlex Y23 and Yfiler Plus were more discriminating than the Yfiler test kit, because they analyze, respectively, six and ten additional markers on the Y-chromosome. He opined that these tests could offer other improvements as well over the Y-STR testing that previously had been performed on the samples the defendant sought to test.

          The trial judge conducted an evidentiary hearing over three days from November 2015 through March 2016. Ladd and Sharon Convery Walsh, the technical lead at the crime lab’s DNA and Combined DNA Index System (CODIS) units, testified, and the parties stipulated to the introduction of forty-five ...

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