Feb. 18, 2011
Commonwealth v. Keith Taskey
2011 Mass. App. LEXIS 252
Docket No. 09-P-689
Appeals Court of Massachusetts
DNA, Conspiracy, Criminal, Hearsay, Confronting Witnesses.
The defendant appealed from a conviction of conspiracy to tamper with a deoxyribonucleic acid (DNA) record in violation of G.L. c. 274, § 7. He claimed that the testimony given by a DNA analyst violated his right to confrontation under the Sixth Amendment; that insufficient evidence was available for both his indictment by the grand jury and his conviction; and that the judge's refusal to give an accident instruction to the jury was erroneous. The conviction was affirmed.
Facts
The defendant and codefendant Kenneth Langlais were indicted by a grand jury for conspiracy to tamper with a DNA record. The Commonwealth told the grand jury that in 2005, the codefendants lived in the same cell block in the Hampden County house of correction. For entry into the CODIS system, they had to provide DNA samples. For the defendant, this was scheduled on Feb. 25, 2005, while Langlais was scheduled for April 12, 2005. On Feb. 25, the defendant provided a DNA sample and a thumbprint. Langlais supposedly did the same on April 12, but it was discovered that the April 12 sample belonged to the defendant, not Langlais. As they both lived in the same cell block and had access to each other, a conclusion of tampering was feasible.
At trial, the DNA analyst, Debbie McKillop, who performed the tests was unavailable and Sharon Walsh, a crime laboratory technical leader (and supervisor of McKillop), testified to the findings. Before and during the trial, the defendant moved to dismiss the charges and also moved for a required finding of not guilty. These motions were denied and the jury found the defendant guilty of conspiracy to tamper. He was sentenced to a two-year term of incarceration.
Issue 1: Did the analyst's testimony violate the defendant’s right to confrontation?
No constitutional violation occurred when Walsh testified against the defendant. Even though the lab result was testimonial under Crawford v. Washington and Melendez-Diaz v. Massachusetts, Walsh independently verified McKillop's findings and was her direct supervisor. She was also presenting her own observations at trial. Even though this was technically testimonial hearsay admitted in violation of the Sixth Amendment, there was no substantial risk of miscarriage of justice. The reliability of the opinion and the exposure to cross-examination left no substantial possibility that there would be a miscarriage of justice.
Issue 2: Was the evidence sufficient for an indictment?
The grand jury heard evidence that was sufficient for a finding of probable cause. There was no direct evidence of a conspiracy but there was enough circumstantial evidence (the fact that the defendant and Langlais lived in the same cell block and that they had the capacity to switch their samples) to find a conspiracy between them. As testified to by Walsh, the samples could only have come from a single person or identical twins. Thus, there was both sufficient and compelling evidence.
Issue 3: Was the evidence sufficient for a conviction?
In the light most favorable to the Commonwealth, the evidence supported the conclusion that the defendant conspired with Langlais to impersonate Langlais and tamper with the DNA samples. This was supported by the evidence beyond a reasonable doubt. Therefore, the trial judge correctly denied the defendant’s motion for a required finding of not guilty.
Issue 4: Was the judge's refusal to instruct the jury instruction of accident in error?
This defense requires that there be evidence of accidental conduct or mistaken intent on the part of the defendant, not CODIS or the correction staff. There was no evidence of accident by the defendant and thus this does not apply in this case.
Judgment affirmed.
–Prepared by JWK.
