Commonwealth v. Mattei

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14-P-1004 Appeals Court
COMMONWEALTH vs. ALEXANDER MATTEI.
No. 14-P-1004.
Essex. May 10, 2016. - October 27, 2016.
Present: Cypher, Blake, & Henry, JJ.
Assault with Intent to Rape. Assault and Battery.
Deoxyribonucleic Acid. Evidence, Expert opinion, Cross-
examination. Witness, Expert, Cross-examination.
Practice, Criminal, Instructions to jury, Argument by
prosecutor, Confrontation of witnesses. Constitutional
Law, Confrontation of witnesses.
Indictments found and returned in the Superior Court
Department on May 22, 2002.
Following review by the Supreme Judicial Court, 455 Mass.
840 (2010), the cases were tried before Timothy Q. Feeley, J.
Karl R.D. Suchecki for the defendant.
Catherine L. Semel, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Alexander Mattei, appeals from
his convictions of assault with intent to rape and assault and
battery. On appeal, the defendant challenges: (1) the
2
admission of testimony of a substitute DNA analyst; (2) the
judge's ruling curtailing cumulative cross-examination regarding
what effect information regarding the criminal histories of
other workers at the victim's residence might have had on the
police investigation; (3) the judge's failure to give a Bowden1
instruction; and (4) statements by the prosecutor in closing
argument. We affirm.
Background. In April, 2002, the defendant and three other
inmates were on work release from the Lawrence Correctional
Alternative Center on the day of the incident. They were
working at a housing complex for the elderly and disabled, which
is run by the Andover Housing Authority. The victim, a resident
of the housing complex, was attacked in her apartment and
"sustained numerous trauma about her face." She was taken by
ambulance to the hospital for treatment. From there the victim
was transferred to New England Medical Center, where she was
treated by eye specialists.
1. The substitute analyst. The defendant claims that
admission of the deoxyribonucleic acid (DNA) opinion testimony
of crime laboratory analyst Brian Cunningham violated his
confrontation rights because Cunningham: (1) did not conduct
the DNA testing in this case; (2) was not employed by the crime
1
See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980).
3
lab at the time the testing was conducted by analyst Stacey
Edward; and (3) reached a conclusion that "conflicted in
significant part" with the conclusion of the analyst (Edward)
who conducted the DNA testing concerning two key pieces of
evidence (mixed sample DNA recovered from the defendant's
sweatpants and the interior doorknob of the victim's apartment).
At trial, the defendant objected to Cunningham's testimony
only because Edward had conducted the original testing. There
was no error in the admission of the testimony. An expert may
testify as to his opinion, even if it is based on work conducted
by another analyst. See Commonwealth v. Nardi, 452 Mass. 379,
390-391 (2008); Commonwealth v. Barbosa, 457 Mass. 773, 786
(2010); Commonwealth v. Grady, 474 Mass. 715 (2016) (substitute
analyst may testify to own opinion based on substitute analyst's
review of underlying data).
The defendant made no reference in his objection to the
timing of Cunningham's employment at the lab or the nature of
Cunningham's conclusions. Cunningham testified that the testing
of each item had been conducted by Edward; he had reviewed her
testing and reached his own conclusions that formed the basis
for his testimony in court. According to the defendant,
effective confrontation was hampered by the fact that Cunningham
was not employed at the lab at the time the testing was
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conducted and that his opinion regarding the results conflicted
with the original analyst.
The defendant relies on Commonwealth v. Tassone, 468 Mass.
391 (2014), to support his argument that his confrontation
rights were abridged because Cunningham was not employed at the
lab when Edward conducted the test. This case is
distinguishable from Tassone, in which the testifying expert was
never employed by the lab that performed the testing and,
therefore, had no personal knowledge of its evidence handling
and testing protocols. See id. at 401. Here, Cunningham was
employed by the lab that conducted the DNA analysis and
testified to his familiarity with the protocols and review
procedures during the relevant time period. Cunningham's
employment at the lab began one month after Edward performed the
DNA analysis in 2002; thus, Cunningham was working there in
March, 2003, when Edward's work underwent technical and
administrative review. Unlike in Tassone, the defendant here
had "a meaningful opportunity to cross-examine the expert as to
the reliability of the underlying facts or data."2 Id. at 402.
2
"With DNA analysis, the testing techniques are so reliable
and the science so sound that fraud and errors in labeling or
handling may be the only reasons why an opinion is flawed."
Commonwealth v. Jones, 472 Mass. 707, 716 (2015), quoting from
Commonwealth v. Barbosa, 457 Mass. 773, 790 (2010).
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Although the defendant complains that he was unable to
question Cunningham about a mix up of the DNA samples because
Cunningham was not employed by the lab at that time, the
defendant was able to question the person who was ostensibly
responsible for the error, Carol Courtwright, the forensic
chemist who testified about the collection and handling of DNA
evidence. She was also meaningfully cross-examined.
Inasmuch as the defendant challenges the discrepancy
between the conclusion drawn by Cunningham, who testified that
the DNA profile constituted a "match," and the prior testimony
of Edward, who testified that she could not exclude the
defendant as a potential source of the DNA samples, Cunningham
properly testified to his own conclusions, based on his
independent review of Edward's testing. "[S]uch testimony is
permissible provided that the testifying analyst 'reviewed the
nontestifying analyst's work, . . . conducted an independent
evaluation of the data,' and 'then expressed her own opinion,
and did not merely act as a conduit for the opinions of
others.'" Commonwealth v. Jones, 472 Mass. 707, 715 (2015),
quoting from Commonwealth v. Greineder, 464 Mass. 580, 595
(2013). An expert witness may testify to his or her independent
opinion, even if based on a nontestifying analyst's test
results, without violating a defendant's confrontation rights
under the Sixth Amendment to the United States Constitution or
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art. 12 of the Declaration of Rights of the Massachusetts
Constitution.
2. The limit on cumulative cross-examination. The
defendant argues that the judge erred by restricting his
cross-examination of Sergeant Mark Higginbottom, from whom the
defendant sought to elicit testimony showing that the police
investigation was compromised by their failure to inquire into
the criminal histories of other workers at the victim's
residence.
At trial, the defendant sought to demonstrate that had
police known about the criminal records of certain other
potential suspects, that knowledge would have shifted the focus
of their investigation away from the defendant. "It is well
settled that a defendant has a right to expose inadequacies of
police investigation." Commonwealth v. Reynolds, 429 Mass. 388,
391 (1999). Sergeant Higginbottom testified on cross-
examination that he did not investigate the criminal history of
other workers at the victim's residence. The judge then
restricted the defendant to inquiring of only one police
witness, lead investigator Sargent Charles Heseltine, as to
whether knowledge of the criminal histories of other suspects
would have made a difference to the investigation. Defense
counsel elicited testimony from Sergeant Heseltine that, had he
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known of the criminal records of certain other suspects, he
would have changed the focus of his investigation.
Because evidence concerning the failure of the police to
conduct a thorough investigation was introduced though the
testimony of Sergeant Heseltine, there was no error and no abuse
of discretion in limiting the cross-examination of Sergeant
Higginbottom, whose testimony would have been cumulative of the
permitted evidence. See Commonwealth v. Perez, 444 Mass. 143,
149-150 (2005), quoting from Commonwealth v. Reynolds, 429 Mass.
388, 391 (1999) ("When viewed in the entirety of the
examination, it could not be said that [the defendant] was
denied his 'right to expose inadequacies of [the] police
investigation,' or that the judge abused his discretion in
sustaining the Commonwealth's objection in light of the
speculative, collateral, and potentially prejudicial subject
matter that would be opened up by requiring this witness to
answer the questions put by defense counsel"); Commonwealth v.
Bonds, 445 Mass. 821, 831 (2006). See also Mass. G. Evid. § 403
(2015) (trial judge has discretion to exclude evidence if it is
merely cumulative).
3. The Bowden instruction. The defendant further argues
that, because the defense theory rested mainly on inadequacies
of the police investigation, the judge's refusal to issue a
Bowden instruction impaired his ability to present a full
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defense. See Commonwealth v. Bowden, 379 Mass. 472, 485-486
(1980). "[A] judge is not required to instruct on the
inadequacies of a police investigation. Bowden simply holds
that a judge may not remove the issue from the jury's
consideration." Commonwealth v. Williams, 439 Mass. 678, 687
(2003), quoting from Commonwealth v. Boateng, 438 Mass. 498,
506-507 (2003). See Commonwealth v. Avila, 454 Mass. 744, 767
(2009) (Bowden makes it "clear that a judge may not remove the
issue of a biased or faulty police investigation from the jury,"
but "the giving of [a Bowden] instruction is never required").
Here, the judge did not remove the issue from the jury's
consideration, but rather permitted the defendant to elicit
testimony concerning the failure of the police to collect
evidence and investigate other potential suspects "and so
complied fully with Bowden's only requirement." Williams,
supra. The issue, pressed by defense counsel in his closing
argument, was properly before the jury. Accordingly, there was
no abuse of discretion in the judge's refusal to give a Bowden
instruction.
4. The closing argument. Finally, the defendant argues
that the prosecutor created a substantial risk of a miscarriage
of justice during her closing argument by appealing to the
sympathy of jurors, shifting the burden of proof onto the
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defendant, opining on the strength of the Commonwealth's
evidence, and misstating the evidence.
The defendant claims that the prosecutor engaged in
speculation and sought to evoke sympathy for the victim when she
stated that the defendant believed that he could overcome a
visually impaired woman who would be unable to identify him, and
again when she stated that the victim "would have submitted, and
[the defendant] would have put his penis in her anus but for the
fact that something spooked him." Contrary to the defendant's
claim that the prosecutor's statements amounted to speculation,
there was evidence from which a jury could have found that the
defendant knew the victim to be visually impaired and intended
to penetrate her when he ordered her to pull down her underpants
and thrust his penis against her buttocks. "Because the line
separating speculation and inference is often a fine one, 'we
must and do recognize that closing argument is identified as
argument.'" Commonwealth v. Bresilla, 470 Mass. 422, 437-438
(2015), quoting from Commonwealth v. Kozec, 399 Mass. 514, 517
(1987). The statements complained of are reasonable inferences
based on the evidence presented at trial, and not so
inflammatory as to encourage the jury to determine the verdict
on the basis of sympathy for the victim. Compare Commonwealth
v. Baran, 74 Mass. App. Ct. 256, 283 (2009).
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The next claim concerns the prosecutor's use of rhetorical
questions concerning the defendant's motive in knocking on the
victim's door. The defendant correctly states the general rule
that "rhetorical questions should not be used in closing
argument where they could be perceived by the jury as shifting
the Commonwealth's burden of proof to the defendant."
Commonwealth v. Habarek, 402 Mass. 105, 111 (1988). See Mass.
G. Evid. § 1113(b)(3)(E) (2016). However, viewed in context,
the questions did not intimate that the defendant had an
affirmative duty to present evidence, but rather suggest that
the defendant's explanation for knocking on the victim's door
was implausible, and that he had already formed an intent to
assault her when he observed her entering her apartment. We
perceive no burden shifting in the prosecutor's use of
rhetorical questions. See Commonwealth v. Nelson, 468 Mass. 1,
13 (2012).
The defendant also takes issue with the prosecutor's
description of evidence against the defendant as "overwhelming,"
citing Commonwealth v. Tuitt, 393 Mass. 801, 811 (1985), for the
proposition that a prosecutor may not express personal opinion
as to the strength of the Commonwealth's case. The prosecutor's
remarks in this case are distinguishable from those in Tuitt,
where the prosecutor opined that the defendant was guilty,
whereas here, the prosecutor stated that the evidence
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demonstrated the defendant's guilt. "Even if use of the term
had been improper, which it was not on this record, it is the
type of rhetorical flourish that the jury could put in
perspective." Commonwealth v. Jenkins, 458 Mass. 791, 798
(2011).
The defendant asserts that the prosecutor improperly
injected her opinion at several other points of closing
argument, first stating that there was "only one person" to whom
the evidence pointed, next presenting her own theory as to how
to resolve conflicting evidence regarding whether the victim had
locked her door, and finally characterizing chemist
Courtwright's mistakes in handling evidence as insignificant.
While a prosecutor's statement of personal belief regarding a
defendant's guilt is improper, we do not regard the statements
about which the defendant complains here as expressions of
opinion, but rather as counter-arguments made in response to
defense counsel's closing statements. In closing argument,
defense counsel claimed that there were multiple suspects who
could have committed the assault, that the victim had locked her
door and the defendant did not have a key, and said of
Courtwright, "Can you trust anything she did?" "The prosecutor
was entitled to offer a response to defense counsel's closing
argument." Bresilla, 470 Mass. at 438. "The argument, although
not one that flows inevitably from the evidence, asked the jury
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to draw . . . inference[s] that 'w[ere] reasonable and possible'
(citation omitted)." Commonwealth v. Mazariego, 474 Mass. 42,
58 (2016).
The defendant also maintains that the prosecutor misstated
evidence in her closing argument. The prosecutor asserted that
chemist Courtwright mistakenly placed samples from another case
in a box with samples from the defendant's case only after the
defendant's DNA evidence had already been sent away to be tested
at the lab.3 Courtwright herself testified that she was unsure
when the evidence was mixed, and that she examined samples from
the defendant's case in September, a month after she began work
on the other case. The prosecutor appears to have misstated the
evidence. See Mass. G. Evid., § 1113(b)(E)(3). However, the
discrepancy between Courtwright's testimony and the prosecutor's
statements does not appear to be material and there is nothing
to suggest that the misstatement was intentional. Confronted at
trial with evidence of a DNA match, the defendant did not pursue
3
Regarding Courtwright's mixing of DNA samples, the
prosecutor stated:
"[L]et me suggest to you to at least look at the point at
which it happened. After she's processed the evidence.
After the evidence is going to go for DNA testing, has
already gone to DNA testing, and will never come back.
That's the evidence that was contaminated with the
Pittsfield murder evidence. That's the point at which that
went in. Is it wrong? Yes. But was her guard maybe down
a little bit about how carefully she was handling things
when she was done with her work on this case."
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the theory that the evidence was contaminated by the samples
from another case, a reasonable approach where, as here, "a DNA
match is 'itself striking confirmation' that the laboratory
tested the correct sample." Greineder, 464 Mass. at 597 n.18,
quoting from Williams v. Illinois, 132 S. Ct. 2221, 2238 (2012).
Instead, defense counsel used the mixed samples to impeach the
credibility of the Commonwealth's witness, for which purpose the
timing of her mistake was irrelevant. Moreover, the judge
instructed jurors at the start and close of trial that arguments
are not evidence in this case. "[I]nstructions from the judge
inform the jury that closing argument is not evidence, and
instructions may mitigate any prejudice in the final argument."
Bresilla, supra at 437, quoting from Kozec, 399 Mass. at 517.
The prosecutor's erroneous statement did not give rise to a
substantial risk of miscarriage of justice.
Judgments affirmed.