Com. v. Mattei

• Decision Date: 01 February 2010
• Docket Number: SJC-10390
• Citation: 455 Mass. 840,920 N.E.2d 845
• Parties: COMMONWEALTH v. Alexander MATTEI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

920 N.E.2d 845 455 Mass. 840 COMMONWEALTH
v.
Alexander MATTEI. SJC-10390 Supreme Judicial Court of Massachusetts, Essex. Argued October 6, 2009. Decided February 1, 2010.

[920 N.E.2d 847]

Bonny M. Gilbert for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Dana Alan Curhan, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

MARSHALL, C.J.

455 Mass. 841

We granted the defendant's application for further appellate review to consider

920 N.E.2d 848

his claim that the trial judge committed reversible error by admitting expert testimony that deoxyribonucleic acid (DNA) tests could not exclude the defendant as the source of DNA taken from the scene of the crime without accompanying testimony explaining the statistical import of those results.¹ The defendant also claims that there was insufficient evidence to convict him of home invasion and assault by means of a dangerous weapon because the duct tape used in the attack was not a "dangerous weapon";² that his constitutional

455 Mass. 842

rights to confrontation were impermissibly restricted when the judge limited the scope of certain cross-examination; and that he received ineffective assistance of counsel.³ We reject the defendant's sufficiency of the evidence claim. We conclude, however, that expert testimony that DNA tests could not exclude the defendant as a potential source of DNA found at the crime scene, absent testimony regarding statistical findings explaining the import of such a result, was likely to confuse and mislead the jury such that any probative value of the test results was substantially outweighed by their prejudicial effect. Because the error in admitting such evidence was prejudicial, we remand for a new trial and provide guidance on issues that may then arise.⁴

1. Facts. The facts as they properly could have been found by the jury are set forth in the decision of the Appeals Court, Commonwealth v. Mattei, 72 Mass.App.Ct. 510, 511-513, 892 N.E.2d 826 (2008). We repeat here the basic details, focusing on facts relevant to the defendant's claim of insufficiency.

At approximately 1 P.M., on April 26, 2002, the thirty-six year old victim returned to her apartment in a housing complex operated by the Andover Housing Authority (housing authority). As she walked down the stairs to her basement

920 N.E.2d 849

apartment, she saw the defendant — a man she did not recognize — mopping the floor in the basement hallway. After a brief exchange, the victim entered her apartment, locking the door behind her. Shortly thereafter, through the locked door,⁵ the defendant warned her to be careful if she left the apartment because the floor in the hall was wet and slippery.

One to five minutes later, while she was standing near her

455 Mass. 843

bed facing away from her front door, a man grabbed the victim from behind. A struggle ensued, during which the assailant repeatedly pressed his hand over the victim's mouth and nose, making it difficult for her to breathe. During the struggle the assailant tried to place duct tape over the victim's mouth,⁶ but was unsuccessful in doing so. Eventually, as she testified, the victim could struggle no more. The assailant then attempted to rape the victim anally, but stopped after ten or fifteen minutes and left the apartment. The victim was unable to see the assailant's face, and could not identify her attacker. She later described the assailant as "white,"⁷ and reported that he was wearing a white or light gray sweatshirt.

2. Sufficiency of the evidence. The defendant argues that the judge erred in denying his motion for required findings of not guilty of home invasion and assault by means of a dangerous weapon because the jury could not properly have found that the duct tape as used by the assailant was a "dangerous weapon" within the meaning of those statutes.⁸ See Commonwealth v. Doucette, 430 Mass. 461, 465-466, 720 N.E.2d 806 (1999), quoting G.L. c. 265, § 18C (listing elements of home invasion, including "while armed with a dangerous weapon"); Commonwealth v. Appleby, 380 Mass. 296, 305-306, 402 N.E.2d 1051 (1980), citing G.L. c. 265, § 15B (discussing "dangerous weapon" element of assault "by means of a dangerous weapon").⁹ On review, "we determine whether the evidence offered by the Commonwealth, together with reasonable

455 Mass. 844

inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged." Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979). See

920 N.E.2d 850

Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979).

We agree with the Appeals Court that resolution of this claim is determined in large part by Commonwealth v. Cruz, 430 Mass. 182, 714 N.E.2d 813 (1999), see Commonwealth v. Mattei, 72 Mass.App.Ct. 510, 519, 892 N.E.2d 826 (2008), where we held that duct tape had been used as a dangerous weapon when an assailant used the tape to gag the mouth of a woman and the mouth of her seven year old daughter. See Commonwealth v. Cruz, supra at 184, 195, 714 N.E.2d 813. In that case, the child died of asphyxiation because the duct tape covered her nose and mouth, see id. at 184, 714 N.E.2d 813, and we held that "the jury could permissibly infer from the resulting death that the tape was used as a dangerous weapon." Id. at 195, 714 N.E.2d 813. Cf. Commonwealth v. Scott, 408 Mass. 811, 812-813, 822-823, 564 N.E.2d 370 (1990) (sufficient evidence for jury to find that gag, as used by defendant, was dangerous weapon where victim died "from a combination of head injuries and asphyxia by the gag"); Commonwealth v. Tarrant, 367 Mass. 411, 416 n. 4, 326 N.E.2d 710 (1975) (where "neutral object is in fact used to inflict serious injury it would clearly be a dangerous weapon").

Our reliance on Commonwealth v. Cruz, supra, is based not entirely on the fact that the object at issue here, as in that case, is duct tape. As we noted in Commonwealth v. Appleby, supra at 307 n. 5, 402 N.E.2d 1051, the use of a particular object in one case "should not be construed to mean that any intentional unjustified touching with an object previously held in a different case to have been capable of being a dangerous weapon constitutes a crime.... A reasonable jury might well reach a different conclusion as to [an object] when used in different circumstances." (Emphasis in original.) Thus the "essential question" is "whether the object, as used by the defendant, is capable of producing serious bodily harm." Commonwealth v. Tevlin, 433 Mass. 305, 310, 741 N.E.2d 827 (2001), quoting Commonwealth v. Mercado, 24 Mass.App.Ct. 391, 397, 509 N.E.2d 300 (1987). That question is for the jury to determine, "taking into account the purposes for which the object is intended and the manner in which it is used." Commonwealth v. Scott, supra at 822, 564 N.E.2d 370, and cases cited. See Commonwealth v. Cruz, supra at 195, 714 N.E.2d 813,

455 Mass. 845

quoting Commonwealth v. Appleby, supra ("the question whether a weapon is dangerous as used is always one for the fact finder"). Here the jury were correctly instructed that, in order to find the defendant guilty of home invasion or assault by means of a dangerous weapon, they had to find beyond a reasonable doubt that the defendant used the duct tape "with the intent to use it in a dangerous or potentially dangerous fashion," i.e., that the duct tape was "intentionally used in a way that it is reasonably capable of causing serious injury or death to another person."¹⁰ It was for the jury to consider, for example, the evidence of the victim's trouble with breathing during the assault when the assailant placed his hand over her mouth and nose, and the fact that the assailant attempted to use duct tape measuring two to two and one-half inches wide to cover and close her mouth, as they considered whether the use of the duct tape in this case met the definition of a "dangerous weapon" as instructed by the judge.

That the victim in this case did not die or suffer serious bodily harm from the attempted use of the duct tape to cover

920 N.E.2d 851

her mouth is not dispositive.¹¹ The "relevant behavior" for the offense of assault by means of a dangerous weapon "is an outward demonstration of force," and requires "only apparent ability to injure." Commonwealth v. Appleby, supra at 305, 402 N.E.2d 1051, citing Commonwealth v. Henson, 357 Mass. 686, 692-693, 259 N.E.2d 769 (1970). See Commonwealth

455 Mass. 846

v. Tarrant, supra at 414, 326 N.E.2d 710 (relevant focus in evaluation whether item is "dangerous weapon" is "instrumentality's potential for harm as it might have objectively seemed to a reasonable individual"). An analysis focusing on the object's apparent ability to injure is equally appropriate under the home invasion statute.¹² "Apparent ability to injure" of necessity encompasses the particular use that the defendant made of the object. In this case the jury permissibly could find that the assailant used the duct tape to cover the victim's mouth, potentially cutting off her oxygen supply. "The law need not wait until the instrument actually does cause serious bodily harm in order to classify the weapon as dangerous." Commonwealth v. Appleby, supra at 307, 402 N.E.2d 1051.

3. Admissibility of evidence that defendant could not be excluded by a DNA test without accompanying statistics. The defendant argues that it was error to admit expert testimony that the defendant could not be excluded as a potential source of DNA found on the interior doorknob of the victim's apartment, and that the victim

920 N.E.2d 852

could not be excluded as a potential source of DNA found on the defendant's sweatpants, without accompanying testimony explaining the statistical...