457 Mass. 530
Search and Seizure, Search Warrant Conflict of Laws, Expert Witness, Prior Convictions
The defendant was found guilty of first degree murder under theories of deliberate premeditation and extreme atrocity and cruelty, as well as larceny of a motor vehicle. The defendant appealed his convictions claiming: 1) ineffective assistance of counsel for failing to file a motion to suppress evidence gained from buccal and genital swabs taken from the defendant pursuant to a Maryland search warrant, 2) Expert testimony was hearsay and inadmissible, and 3) that the judge erred by allowing the prosecutor to use evidence of the defendant’s prior criminal convictions to show a propensity to commit crime. The SJC affirmed the defendant’s conviction and declined to reduce the degree of guilt.
Facts
The defendant in the case was the uncle of the 17 year old victim. The victim went to visit her grandparents in Fall River. Her 33 year old uncle also lived in the house along with the grandparents two dogs, who reacted by barking and showing teeth to strangers. Around midnight the grandfather went downstairs to check on the victim, who he found asleep on the couch, and the defendant, who was nowhere to be seen.
Around 2am the grandmother was awoken by the sound of what she thought was her car alarm, but because the dogs were not barking, she went back to bed. In the morning the grandfather located the victim’s body on the floor of the garage, naked except for a shirt pulled up around her chest and blood around her head. A dog leash was wrapped around her neck, and a crow bar was out of place in the garage. The dogs, which regularly slept in the garage, were sitting quietly next to the victim’s body until police arrived and they began barking.
The grandmother’s car was missing along with her car keys from where the defendant knew they were kept. The car was eventually located using LOJACK travelling on a highway through Maryland. When police stopped the car the defendant got out and there were blood stains on the front of his jeans. He was placed under arrest.
After conferring with Massachusetts police officers, the Maryland police worked on an application for a search warrant, which the next morning a Maryland District Court judge authorized. The warrant allowed the police to obtain swabbings of the defendant's hands, penis, and genital area; perform a combing of his pubic hairs; and collect a sample of his deoxyribonucleic acid (DNA) by means of a buccal swab.
Human blood and saliva were found on the swabs and combings as well as on the defendant’s shirt and the victim’s body. These samples were forwarded to a Massachusetts crime lab were the samples were analyzed by Amy Barber and compared to DNA profiles of the defendant and the victim created by a coworker. Ms. Barber concluded that the odds the DNA under the victim’s fingernails belonged to anyone other than the defendant were about one in 5 quadrillion.
Ineffective Assistance of Counsel
The defendant argued that his counsel was ineffective because they failed to file a motion to suppress evidence on the grounds that the application for a Maryland search warrant failed to establish probable cause, as required by the Fourth Amendment to the United States Constitution, that the swabs and combing would produce evidence that would aid in the investigation of the victim’s murder. The SJC went on to discuss at length the information that was given to the Maryland police about the case and the defendant, but the facts given are essentially what is above. Additional facts were that the defendant had been arrested 35 times prior, and that the grandmother had filed a stolen vehicle report.
Based on the information in the warrant application the SJC agreed with Maryland that there was a substantial basis to believe that the items sought were related to the criminal activity under investigation, and that they reasonably could have been expected to be located in the place to searched at the time the search warrant was issued, and thus probable cause was satisfied. Specifically, the buccal swab was satisfied because of the apparent sexual aspect of the crime, and although the defendant had no visible injuries it was likely he left another fluid such as semen or saliva at the scene, which a buccal swab would help identify.
Search Warrant Conflict of Laws
The court addressed the fact that different states have different procedures, but because 1) probable cause was found in Maryland, 2) it would have been found in Massachusetts3) and because Maryland adheres to the 4th Amendment similar to Massachusetts in issuing search warrants, there was no need to address the conflict of laws issue in this case.
Expert Testimony
At trial Amy Barber testified about her analysis and matching of the samples to DNA profiles of the defendant and victim prepared by someone else in her lab. The defendant argues that this testimony was impermissible under Crawford v. Washington. The SJC noted that his reliance on that case was misplaced because that case declared the admission of testimonial hearsay in evidence violated the confrontation clause of the Sixth Amendment. In this case, the DNA profiles prepared by the non-testifying chemist were undoubtedly testimonial hearsay, but the profiles themselves were not admitted in evidence and the witness did not testify to their contents. Additionally, Barber’s opinion testimony, which was based on the independently admissible evidence that is usually relied on in cases like this, did not discuss any details of the hearsay evidence during direct examination.
Prior Criminal Convictions
Finally the defendant alleges that the prosecutor improperly was allowed to make mention of the defendant’s prior criminal convictions to show propensity to commit crimes. The SJC found that in reality the defendant had brought up the fact that he had numerous convictions as part of his defense claiming that he found the body and panicked because he thought everyone would blame him because he had been convicted of so many crimes in the past. The prosecutor merely argued, based on these convictions that the defense brought into evidence, the perfectly fair argument that the defendant should not be considered credible.
Judgments affirmed and no reduction in degree of guilt or sentencing.
- Prepared by AEK
