Supreme Judicial Court of Massachusetts, Middlesex
December 3, 2018
N.E.3d 96] Deoxyribonucleic Acid . Practice,
Criminal, Postconviction relief. Evidence,
INDICTMENT found and returned in the Superior Court
Department on March 22, 2005.
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.
request for leave to appeal was allowed by Gaziano,
J., in the Supreme Judicial Court for the county of Suffolk.
Gant, Committee for Public Counsel Services, for the
Langsam, Assistant District Attorney, for the Commonwealth.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
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.
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) testing on the hair.
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
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.
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.
summarize the facts presented at the hearing on the motion
for forensic testing, which included relevant trial
transcripts and exhibits.
Crime scene and collection of evidence.
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?"
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.
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.
police also dusted the victim’s neck with black fingerprint
powder, and applied adhesive lift tape, in an attempt to
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.
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."
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. 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
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.
testing, Cellmark returned the DNA evidence, including the
test tube, to the crime lab, where it was secured in
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
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
N.E.3d 99] d. Postconviction proceedings.
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.
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.
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
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
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