Commonwealth v. Cameron , 473 Mass. 100 ( 2015 )

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SJC-11835
COMMONWEALTH vs. RONJON CAMERON.
Berkshire. September 10, 2015. - October 28, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly,
& Hines, JJ.
Rape. Deoxyribonucleic Acid. Practice, Criminal, New trial.
Indictments found and returned in the Superior Court
Department on October 29, 1999.
The cases were tried before Thomas J. Curley, Jr.; a motion
for a new trial, filed on October 8, 2009, was considered by
John A. Agostini, J., and a motion for reconsideration, filed on
January 15, 2013, was also considered by him.
After review by the Appeals Court, 86 Mass. App. Ct. 1113
(2014), the Supreme Judicial Court granted leave to obtain
further appellate review.
Laura Chrismer Edmonds for the defendant.
Joseph A. Pieropan, Assistant District Attorney (Paul J.
Caccaviello, Assistant District Attorney, with him) for the
Commonwealth.
Stephanie Roberts Hartung, for New England Innocence
Project, amicus curiae, submitted a brief.
2
CORDY, J. In April, 2003, a jury found the defendant,
Ronjon Cameron, guilty on two indictments charging rape, in
violation of G. L. c. 265, § 22 (b). As part of its case
against the defendant, the Commonwealth offered in evidence a
laboratory report regarding the presence of seminal residue on
the complainant's underwear. The Commonwealth also offered
testimony to suggest that there had been a transfer of semen
from the defendant onto the complainant's underwear during the
rape. Forensic deoxyribonucleic acid (DNA) testing performed
before trial indicated the presence of two male sources of the
seminal residue on the underwear. Testing as to the primary
source excluded the defendant. An expert testified on behalf of
the Commonwealth and described the secondary source as both
"inconclusive" and as neither including nor excluding the
defendant. The defendant was convicted and sentenced to a term
of from twelve to sixteen years in State prison.
In October, 2009, the defendant filed a motion for a new
trial, which was denied. In January, 2013, he filed a motion to
amend and reconsider his motion for a new trial, based primarily
on DNA testing performed by an independent laboratory, Bode
Technology (Bode). Bode's analysis, using short tandem repeat
(STR) testing on sixteen loci,1 revealed that the secondary
1
The test employed by Bode is a more discerning test than
was available at the time of the trial in 2003.
3
source, which the Commonwealth's expert had, at trial,
attributed to a male donor, was in fact female DNA to which the
defendant was excluded as a possible contributor. As part of
the same motion, the defendant argued that he had been deprived
of the effective assistance of counsel during trial because
trial counsel failed (1) to challenge the admissibility of the
DNA testimony and (2) to retain a DNA expert to explain that he
should have been excluded as the secondary source of the sample
at trial. Without a hearing, a Superior Court judge (who was
not the trial judge) denied the defendant's motion, concluding
that "the defendant has not established that the newly available
evidence would 'probably have been a real factor in the jury's
deliberations'" (citation omitted). In an unpublished decision
pursuant to its rule 1:28, the Appeals Court affirmed the
denial, determining that "the defendant has not met his heavy
burden of demonstrating that the judge abused his discretion in
denying his motion." Commonwealth v. Cameron, 86 Mass. App. Ct.
1113 (2014).
We granted the defendant's application for further
appellate review to consider his claim that the newly available
DNA evidence warrants a new trial. Given the importance of the
existence of a secondary source of male DNA to corroborate the
testimony of the complainant that the defendant had raped her,
we conclude that the newly available DNA evidence that
4
conclusively excludes the defendant as a possible donor would
likely have been a real factor in the jury's deliberations.
That evidence would have cast doubt on the credibility of the
complainant and rendered the Commonwealth's strongest
corroborative evidence inadmissible. Had the new evidence been
available at trial, there is a substantial risk that the jury
would have reached a different conclusion. The defendant,
therefore, must be given a new trial.2
1. Background. The prosecution presented its case
primarily through the testimony of the complainant. Defense
counsel called only one witness, the defendant. As the
Commonwealth acknowledged during closing argument, "[C]learly
credibility is at the forefront of this case. Credibility and
believability of [the complainant]."
The complainant testified that, on September 13, 1999, the
defendant raped her, both vaginally and anally, in the apartment
of her then boy friend. She testified that she thought the
defendant had ejaculated. After the rape, the complainant put
her clothes back on and left the apartment. At the time, the
complainant was wearing a dress, white shorts, and underwear.
Two days after the alleged rape, the complainant went to
the police station to report the assault. As part of the
2
We acknowledge the amicus brief submitted by the New
England Innocence Project.
5
detective's preliminary investigation, he took the underwear and
the dress that the complainant said she had worn on the night of
the purported attack.3
On September 20, seven days after the alleged rape, the
complainant went to a hospital. At the hospital, the
complainant was examined by Dr. Mark Liponis. Liponis testified
that the complainant reported that the man who raped her had
ejaculated, but that she was uncertain as to where he had
ejaculated. The rape kit, with Liponis's findings, along with
the confiscated clothing, was transported to the State police
crime laboratory in Sudbury.
Thomas Sendlenski, a chemist at the laboratory, testified
that the underwear showed signs of seminal residue, which was
collected for testing. Sendlenski testified that the sample in
question could only have been deposited by a male. The sample
was sent for DNA testing to Cellmark Diagnostics, a laboratory
which has since become Orchid Cellmark (Orchid). Sendlenski
also testified about the scientific concept known as "transfer."
As he described to the jury, transfer is an exchange of
materials between two items that come in contact with one
another.
3
The complainant could not find the white shorts she had
been wearing.
6
At Orchid, Kathryn Colombo, a DNA analyst, performed DNA
tests on the seminal residue samples collected from the
underwear. Colombo testified that she performed a Y-chromosome
STR test with regard to the sample she received. She reported
that the data from that test indicated the presence of DNA from
at least two males. As part of her testimony, Colombo relied on
a chart she created in connection with her analysis, which was
presented to the jury. There was a primary source, "of which
[the defendant] was excluded," and a secondary source, about
which "no conclusion could be made." Colombo went on to
explain:
"And the secondary source, the fourteen observed at
the DYS nineteen is consistent with the standard of
[the defendant]. At the three eighty-nine one region,
just by a coincidence, [the defendant] has the same
type that was observed in the evidence sample, and it
could be that that type is present and it's being
masked by the primary source.
"There was no type determined or found at the three
eighty-nine two region, so we can't draw a conclusion
at this region between the standard of [the defendant]
and the evidence item.
"And then, at the DYS three ninety region, [the
defendant] is a twenty-four. We obtained just a
twenty-one at that region for the evidence. There is
no twenty-four present. However, we know that
sometimes with these systems we may lose types. So, I
-- I'm not saying that we did in this case, I'm just
saying that we can't make that determination about the
secondary source, we can't make any conclusion about
the secondary source." (Emphases added.)
7
The prosecutor then asked, "So, is the bottom line, as far
as the secondary source goes, that your analysis is not able to
include him as a donor of seminal material to the underwear nor
exclude him?" Colombo answered, "That's correct."
During cross-examination of the complainant, defense
counsel impeached her testimony, challenging her memory of the
events of September 13 and her relationship with the defendant,
and questioning why it had taken so long for her to report the
rape. The defendant has maintained his innocence throughout
these proceedings. He testified that he did not see the
complainant on the day in question, and he denied any sexual
contact between himself and the complainant.
2. Discussion. The defendant argues that he is entitled
to a new trial based on (1) the newly available DNA evidence,
excluding him as the source of any of the DNA residue on the
complainant's underwear; (2) ineffective assistance of counsel;
and (3) the admission of false evidence in violation of his
Federal and State due process rights. When reviewing a lower
court's ruling on a motion for a new trial, we "examine the
motion judge's conclusion only to determine whether there has
been a significant error of law or other abuse of discretion."
Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011), quoting
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See Mass. R.
Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). "Judges
8
are to apply the standards set out in Mass. R. Crim. P. 30(b)
rigorously," and "grant such a motion only if it appears that
justice may not have been done" (quotations and citations
omitted). Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992).
Where, as in the present appeal, the motion judge "did not
preside at trial, we regard ourselves in as good a position as
the motion judge to assess the trial record" (quotation and
citation omitted). Commonwealth v. Raymond, 450 Mass. 729, 733
(2008).
In order to prevail on a motion for a new trial on the
basis of newly discovered evidence, a defendant must meet the
two-prong test set out in Grace, 397 Mass. at 305-306. First,
the defendant must establish that the evidence is "newly
available" or "newly discovered."4 Commonwealth v. Cintron, 435
Mass. 509, 516 (2001). Grace, supra at 305. Second, the
defendant must show that the evidence "casts real doubt on the
justice of the conviction." Grace, supra. To show that newly
available evidence "casts real doubt on the justice of the
conviction," the defendant must show that "there is a
substantial risk that the jury would have reached a different
conclusion had the evidence been admitted at trial." Id. at
4
"The standard applied to a motion for a new trial based on
newly available evidence is the same as applied to one based on
newly discovered evidence." Commonwealth v. Sullivan, 469 Mass.
340, 350 n.6 (2014), quoting Commonwealth v. Cintron, 435 Mass.
509, 516 (2001).
9
306. The inquiry is not "whether the verdict would have been
different, but rather whether the new evidence would probably
have been a real factor in the jury's deliberations." Id. The
Commonwealth contends only that the defendant has failed to
satisfy the second prong.5 We therefore only consider whether
the motion judge abused his discretion in concluding that the
newly available DNA evidence did not cast real doubt on the
justice of the defendant's convictions.
The prosecution's case relied almost exclusively on the
complainant's testimony. The only evidence before the jury that
had the potential to corroborate the complainant's testimony was
the DNA evidence.6 The complainant testified that she believed
the defendant had ejaculated, and the Commonwealth presented
evidence that there were stains on the underwear and then
produced expert testimony regarding the DNA testing of those
stains. Taken in conjunction with the testimony elicited by the
Commonwealth regarding transfer, the jury could have concluded
5
To be newly available, the evidence must "have been
unknown . . . and not reasonably discoverable . . . at the time
of trial," Commonwealth v. Grace, 397 Mass. 303, 306 (1986). A
defendant must also "demonstrat[e] that any newly discovered
evidence is admissible." Commonwealth v. Weichell, 446 Mass.
785, 799 (2006). The motion judge found that the defendant had
satisfied these requirements, and the Commonwealth does not
dispute that finding on appeal.
6
Thomas Sendlenski, a chemist at the State police crime
laboratory, testified that no seminal fluid or sperm cells were
located on any items in the rape kit. There were also no bodily
fluids, hair, or any fibers noted on the dress.
10
that there was a transfer of semen from the complainant to the
underwear in question as a result of a rape. Although the
primary source of the DNA was not the defendant, the evidence of
a secondary male source from which the defendant could not be
excluded was powerfully corroborative. Indeed, in his closing
argument, the prosecutor made good use of the existence of a
secondary source and of the uncertainty of its donor.
Specifically, he explained that "[w]hether or not [the
defendant] ejaculated is not relevant to the charges. But it
does put part of the evidence in perspective, because if he did
ejaculate, you have to assume a transfer to [the complainant's]
underwear. And while there is a primary source that excludes
him, there is another stain there which we can't tell you
excludes him and we can't tell you includes him. We simply
can't tell because of the nature of the stain."
Although defense counsel did not object to the admission of
the DNA evidence at trial,7 and indeed attempted to use its
7
Outside the presence of the jury, the trial judge
questioned the relevance of the deoxyribonucleic acid (DNA)
evidence, given that the secondary sample was "inconclusive."
In response, the prosecutor stated: "Well, I think it --
because there's another -- there's a secondary stain there. I
think that's actually the probative point." However, during
direct examination of Kathryn Colombo, an analyst at Orchid
Cellmark, the Commonwealth elicited two transcript pages of
testimony about the meaning and makeup of DNA. During this
testimony, the judge requested a sidebar discussion, and
questioned the prosecutor as to why he was eliciting such a
11
uncertainty to the defendant's advantage, we note that, had it
been objected to, it should not have been admitted in the form
in which it was offered. In order to weigh effectively the
value and admissibility of the DNA evidence at trial, we must
first characterize it. Our recent decisions lend guidance in
characterizing DNA evidence and its concomitant potential effect
on a jury.
The "admissibility of DNA test results should be determined
on a case-by-case basis." Commonwealth v. Mathews, 450 Mass.
858, 871 (2008). "Generally, a trial judge is accorded
'substantial discretion in deciding whether evidence is
relevant,' and whether relevant evidence should be excluded if
it is less probative than prejudicial." Id. at 872 n.15,
quoting Commonwealth v. Talbot, 444 Mass. 586, 589 n.2 (2005).
Our cases distinguish between "nonexclusion" and "inconclusive"
DNA testimony. Evidence that a defendant is not excluded could
suggest to the jury that a "link would be more firmly
established if only more [sample] were available for testing."
Commonwealth v. Nesbitt, 452 Mass. 236, 254 (2008). Such
evidence "should not [be] admitted without accompanying
statistical explanation of the meaning of nonexclusion."
Commonwealth v. Mattei, 455 Mass. 840, 855 (2010). On the other
response when the defendant was "excluded from one [sample] and
from the other sample [Colombo] can't draw any conclusions."
12
hand, "inconclusive" results "provide no information whatsoever
due to insufficient sample material, contamination, or some
other problem." Id. at 853. Both the motion judge and the
Appeals Court determined that the Commonwealth properly
classified the DNA evidence as "inconclusive" rather than
nonexclusive. We disagree.
At trial, the Commonwealth, and Colombo, vacillated between
referring to the DNA analysis of the underwear stain as
"inconclusive" and as not excluding or including the defendant.
The latter description goes beyond mere inconclusive results,
and permits the jury to make an inference about the defendant's
relation to the sample. Moreover, Colombo's testimony added to
the risk that jurors would draw such an impermissible inference
when she provided the jury with reasons why the defendant's DNA
might not have matched the DNA on the underwear. We conclude
that the DNA evidence presented by the Commonwealth therefore
must be characterized as nonexclusion evidence.
Due to the high risk of prejudice from the admission of
inconclusive DNA evidence, the Commonwealth, when presenting
expert testimony, should avoid the use of nonexclusion that is
not accompanied by a "statistical explanation of the meaning of
nonexclusion." Mattei, 455 Mass. at 855. Because there was no
such statistical explanation presented by the Commonwealth, the
jury were able to draw the inference that a link between the
13
defendant's DNA and the DNA on the underwear "would be more
firmly established if only more [sample] were available for
testing." Nesbitt, 452 Mass. at 254.8
The Commonwealth further contends on appeal that it did not
rely on the DNA evidence to support the defendant's convictions,
as the complainant's testimony did not conclusively establish
that the defendant ejaculated. We disagree. We also conclude
that any prejudice from the admission of the DNA evidence was
not cured by defense counsel's cross-examination of the expert
witness, his closing argument, or the Commonwealth's concessions
made during its closing argument.9
8
Even if the evidence had been identified as inconclusive,
it was irrelevant and thus improperly admitted. In Mathews, we
determined that, when faced with a challenge to the sufficiency
of the Commonwealth's investigation, "the prosecutor is entitled
to introduce testimony to demonstrate that [DNA] tests were
performed and results (even if inconclusive) were obtained."
Commonwealth v. Mathews, 450 Mass. 858, 872 (2008). This often
turns on whether the defendant pursues a Bowden defense at
trial. See id. See also Commonwealth v. Bowden, 379 Mass. 472,
486 (1980). However, in circumstances where the defense is not
related to adequacy of the Commonwealth's investigation,
"testimony regarding inconclusive DNA results is not relevant
evidence because it does not have a tendency to prove any
particular fact that would be material to an issue in the case."
Commonwealth v. Cavitt, 460 Mass. 617, 635 (2011).
Here, defense counsel did not raise a Bowden defense, and
defense counsel's arguments did not relate to the adequacy of
the Commonwealth's investigation. Instead, defense counsel
sought to challenge the credibility of the complainant.
9
On cross-examination, Colombo admitted that the secondary
source "could include or exclude any number of males in this
world." Defense counsel also asked Colombo, "[a]nd you cannot
say to even a degree of reasonable scientific certainty that he
14
The Commonwealth's presentation at trial underscored the
importance of the DNA analysis to the case. The theory offered
by the Commonwealth in its introduction of the DNA evidence
related to the stain was that the existence of a secondary male
sample, although not conclusively attributed to the defendant,
established that there was a transfer of semen from multiple men
to the complainant's underwear during the week in question.
From this, the jury were asked to infer that the stain resulted
from a semen transfer in the aftermath of what the complainant
claimed was a rape. The jury also were permitted to infer that
the semen was that of the defendant. Assuming the accuracy of
the more recent and sophisticated DNA testing performed by Bode,
which attributed the secondary source to a female and excluded
the defendant as a possible donor, we conclude that its
is the contributor to the secondary source, is that correct?"
Colombo stated that it was correct. During closing, defense
counsel stated, "There were two sources, two male sources,
neither of which anyone can ever say in a court of law was [the
defendant's] samples." Moreover, defense counsel used the DNA
results as an argument in favor of the defendant: "I can't
emphasize enough the value of DNA evidence in a case of this
nature. . . . In this case, you have powerful evidence of the
highest caliber, scientific reliability of DNA evidence that
exculpates [the defendant]." And, in the Commonwealth's
closing, the prosecutor acknowledged: "I'll tell you that the
DNA testing is a wash. It's important for a thorough
investigation, to be sure, but I'll suggest to you it also lets
you know that you need to rely upon other evidence in the case.
. . . So, while the DNA evidence may make it easier for you, I
suggest to you that you ought not look for the easy verdict.
Your obligation is to evaluate all the evidence and apply the
law the Court gives you."
15
availability, coupled with its effect on the Commonwealth's
evidence at the 2003 trial, would have been a real factor in the
jury's deliberations.
This case is, in many respects, similar to Commonwealth v.
Cowels, 470 Mass. 607 (2015), and Commonwealth v. Sullivan, 469
Mass. 340 (2014). In Cowels, the Commonwealth relied heavily on
"inconclusive" serological evidence to bolster the testimony of
its key witness.10 Cowels, supra at 610-611, 620. The evidence
presented was made up of blood samples taken from towels seized
from a bathroom in a witness's apartment. Id. at 611. The
defendants had purportedly visited the witness after committing
a murder, and washed in his bathroom. Id. at 609. We concluded
that the defendants were entitled to a new trial on the basis of
DNA testing performed fourteen years after the trial. That
testing revealed newly discovered evidence that excluded both
the defendants and the victim as the source of the blood on the
towels, and that would have eliminated the towels as evidence
against the defendants, and could, ostensibly, also have been
used as a defense at a new trial. Id. at 618-619. We explained
that, "given the towels' role as one of the few pieces of
physical evidence that corroborated the testimony of a key
prosecution witness whose credibility was sharply challenged,
10
The Commonwealth's expert testified that the blood on the
towels "could belong to anybody." Commonwealth v. Cowels, 470
Mass. 607, 611 (2015).
16
the towels likely were a real factor in the jury's
deliberations." Id. at 608. There was "consequently a
substantial risk that the outcome of the trial would have been
different had the towels been excluded altogether or
neutralized" through the introduction of the newly discovered
evidence. Id. at 618-619. In that case, the towels, like the
underwear here, served as the only physical evidence supporting
the key witness's testimony.
In Sullivan, the defendant was convicted of murder in the
first degree and armed robbery. Sullivan, 469 Mass. at 340.
Two witnesses, one testifying on behalf of the Commonwealth and
the other on behalf of the defendant, offered conflicting
testimony as to the killing. Id. at 342. The credibility of
the Commonwealth's witness was challenged. Id. at 349. The
only nontestimonial evidence presented by the Commonwealth to
corroborate its witness's account was a purple jacket, which was
purportedly worn during the murder. Id. at 345. A chemist
testified that blood was found on the cuffs of the jacket, and
such blood was "consistent" with that of the victim. Id. Years
after the defendant had been convicted, newly available DNA
evidence established that the residue on the cuffs was in fact
not blood. Id. at 349. We affirmed the allowance of the
defendant's motion for a new trial, agreeing with the motion
judge that the newly available DNA evidence would have
17
"eliminated the purple jacket as evidence linking the defendant
to the crime, and the defendant would have been able to argue
that there was no physical evidence tying him directly to the
killing." Id. at 350, 353.
As was the case in Cowels and Sullivan, the value of the
newly available evidence in the present case is two-fold.
First, the evidence tends to bolster the argument that the DNA
test results presented at trial were erroneous, thereby
eliminating a piece of evidence that either did or could have
linked the defendant to the crime. Second, the newly available
DNA evidence could be used at a new trial because it would tend
to contradict the testimony and undermine the credibility of the
prosecution's key witness, and would transform what had been the
prosecution's only physical evidence into evidence on behalf of
the defendant. As expressed in Cowels and Sullivan, this dual
quality to the newly available evidence renders this case
different from many other cases involving newly available
evidence. See Cowels, 470 Mass. at 618; Sullivan, 469 Mass. at
352.
When evidence presented to the jury "is more credible than
any other evidence on the same factual issue and bears directly
on a crucial issue before the jury, such as the credibility of
an important prosecution witness," that evidence is likely to
function as a real factor in the jury's deliberations. Cowels,
18
470 Mass. at 620, quoting Commonwealth v. Tucceri, 412 Mass.
401, 414 (1992).
Here, the Commonwealth recognized that the fact that there
appeared to be a secondary male source of the semen was
consistent with the complainant's testimony that the assailant
ejaculated during the rape and that the defendant was the
assailant, even if he could not be ascertained to be the
secondary source. The new DNA evidence transforms the existence
of a secondary source as being consistent with the complainant's
testimony to being arguably inconsistent with that testimony,
and that may have been a real factor in the jury's evaluation of
credibility or, more precisely, whether they were sufficiently
convinced of the complainant's credibility to find it true
beyond a reasonable doubt. This is particularly so where the
evidence presented by the Commonwealth was not overwhelming, and
the outcome of the case turned completely on the jury's
assessment whether the complainant or the defendant was more
credible.
This is not a case in which the newly available DNA testing
merely impeaches the complainant's credibility. Rather, the
newly available evidence "negates a key piece of physical
evidence that the prosecution relied on in arguing that the jury
should credit [the complainant's] testimony." Cowels, 470 Mass.
at 621, quoting Sullivan, 469 Mass. at 352. This is a case in
19
which the Commonwealth acknowledges that credibility is at the
forefront. There is, therefore, no question that the
complainant's testimony is the "linchpin" of the Commonwealth's
case. Cowels, supra at 623. The DNA evidence presented at
trial acted to tip the balance against the defendant. Had the
new DNA evidence been available at the trial, there is a
"substantial risk that the jury would have reached a different
conclusion." Grace, 397 Mass. at 306.11
3. Conclusion. The judgments of conviction are vacated
and set aside, and the matter is remanded to the Superior Court
for a new trial.
So ordered.
11
In light of this conclusion, we need not reach the
defendant's ineffective assistance of counsel and due process
claims.