Com. v. Daggett

• Decision Date: 08 November 1993
• Parties: COMMONWEALTH v. Dana A. DAGGETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 272

622 N.E.2d 272

416 Mass. 347

COMMONWEALTH v. Dana A. DAGGETT.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued May 6, 1993.

Decided Nov. 8, 1993.

Juliane Balliro, Boston, for defendant.

Robert C. Thompson, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Chief Justice.

The defendant, Dana A. Daggett, was convicted of murder in the first degree by reason of extreme atrocity or cruelty. The principal claim of error the defendant makes is that evidence of tests performed on the victim's deoxyribonucleic acid (DNA) and DNA extracted from blood in the trunk of the defendant's automobile and blood found at the plant where defendant worked was improperly admitted at trial. The defendant contends that the error committed requires a new trial. The author of this opinion and Justice Nolan conclude that the evidence was not properly admitted; a majority of the quorum concludes that any error was not prejudicial. Therefore, we affirm.

There was evidence of the following facts. On Saturday, November 5, 1988, the body of the victim was found along a path in a wooded area of Pembroke. The victim had been a prostitute working in Brockton. She had been stabbed thirty-seven times. The absence of blood near her body indicated that she had died elsewhere and then was transported to that spot. The only clothing on her body was a pair of socks.

The defendant worked as a water pump operator at a water treatment plant in Pembroke. On Thursday, November 3, 1988, his shift began at 10 P.M. and ended at 6 A.M. on Friday. He was the only employee on that shift. The evidence presented by the Commonwealth tended to show that the defendant left the plant during his shift to solicit a prostitute, took the victim to the plant, killed her there, and then transported the victim's body in the trunk of his automobile to the wooded area where the body was discovered.

The defendant's coworkers testified that, on Friday morning, an area of the pump room floor appeared freshly mopped. They testified they saw what they believed to be blood stains at various locations in the plant. Among other places, human blood was found on the stairs, the leg of a podium, a wooden chair, a table, the floor, and a mop in a bucket of water. Blood was also found on a mat in the trunk of the defendant's automobile. Serologic tests other than DNA testing indicated that the blood was consistent with the victim's blood, but not the defendant's, and that approximately 4.5 per cent of the general population has blood consistent with these stains.

Hairs from the trunk of the defendant's automobile were consistent, in approximately thirty microscopic characteristics, with the victim's hair. Pubic hair consistent with the defendant's was found on the victim's body. Paint chips taken from the trunk of the automobile were consistent with paint on the floor of the water treatment plant and paint chips found on the victim's socks.

A box containing charred clothing was found in the basement of the plant several days after the victim's body had been discovered. The victim's roommate testified that the victim was wearing these clothes when the roommate had last seen her. A charred metal barrel also was recovered at the plant. The Commonwealth presented evidence that the barrel, the ground near where it was found, and some of the clothing found in the box contained traces of an accelerant.

In addition, the Commonwealth offered evidence of DNA testing by Cellmark Diagnostics laboratory (Cellmark) to prove that the blood found on the chair and the table in the plant, and on the mat in the trunk of the defendant's automobile, was the victim's blood. At trial, the Commonwealth's expert witnesses testified to the process of DNA comparison testing and concluded that it was "highly likely" (or some other nonnumerical term) that the blood found on the chair, the table, and in the trunk came from the victim.

The evidence of DNA testing was the subject of a five-day pretrial hearing conducted in April and May, 1990. The purpose of the hearing was to determine whether the scientific theory and process underlying the forensic use of DNA technology is generally accepted by the relevant community of scientists. ¹ See Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See also Commonwealth v. Curnin, 409 Mass. 218, 222-223, 565 N.E.2d 440 (1991); Commonwealth v. Mendes, 406 Mass. 201, 205, 547 N.E.2d 35 (1989).

At the time of the Frye hearing, and at the time of trial, this court had not yet issued its opinions in Commonwealth v. Lanigan, 413 Mass. 154, 596 N.E.2d 311 (1992), and Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440 (1991). In both of those cases, we held that evidence of DNA testing was inadmissible because the methods used by Cellmark to calculate the statistical probability of a random match were not generally accepted by the relevant scientific community. ² Lanigan, supra at 163, 596 N.E.2d 311. Curnin, supra at 227, 565 N.E.2d 440. The same assumptions underlying the statistical calculations made in those cases were relied on in this case. ³ Thus, the conclusions reached by the Commonwealth's experts suffer from the flaws that were exposed in Curnin and Lanigan. The author of this opinion and Justice Nolan conclude that the evidence of DNA testing should not have been admitted. ⁴

The Commonwealth argues that even if it was error to admit the evidence of DNA testing, reversal is not necessary because the defendant was not prejudiced by the evidence. A majority of the quorum agrees. ⁵

As described above, DNA tests were performed on blood samples recovered from the chair and table at the plant, and from the trunk of the defendant's automobile. As regards the DNA testing of the blood found on the chair and table at the plant, we note that defense counsel conceded in her closing argument that the victim had either been killed at the plant or brought there afterward (thus implicitly conceding that the blood at the plant came from the victim). She characterized the evidence other than the DNA testing that the victim had been killed at, or brought afterward to, the plant as "compelling." Given this concession, we can say confidently that the DNA analysis tending to show that the blood at the plant was the victim's was merely cumulative of other overwhelming evidence and its admission was not prejudicial.

The only other DNA evidence concerned the blood found in the trunk of the defendant's automobile. Significant other evidence tended to show that the victim's body had been placed in the trunk. Blood typing tests revealed that the blood on the trunk mat was consistent with the victim's blood, but not the defendant's, and that only 4.5 per cent of the population has blood consistent with those stains. Human blood, also consistent with the victim's, was found on other items in the trunk, including weather stripping, a wheel guard, and ropes. Hair recovered from the trunk was consistent with the victim's hair. Paint chips found in the trunk of the defendant's automobile and on the victim's body were consistent with each other and paint on the floor of the plant. Also linking the defendant to the victim was evidence showing that pubic hairs consistent with the defendant's were found on the victim's body.

We believe that the evidence of DNA testing performed on the blood from the trunk mat was cumulative of this other evidence. See People v. Barney, 8 Cal.App.4th 798, 825-826, 10 Cal.Rptr.2d 731 (1992). In light of the fact that the Commonwealth was not able to present strong evidence of a DNA match for the blood from the trunk, ⁶ we conclude that the error was not prejudicial.

We turn to the other issues raised in this appeal.

Motions to suppress. Four days after the victim's body was discovered, the defendant was transported from the plant to the Pembroke police station shortly after he arrived for his evening shift. At the station he signed a consent form giving officers the authority to search his automobile and apartment and provided the officers with a statement of his activities during the preceding week. He moved to suppress the statement and the items seized, and a hearing was held on his motions. The record amply supports the judge's denial of Daggett's motions. Daggett does not direct us to any particular error in the findings contained in the judge's memorandum of decision and order, and we perceive no error.

Evidence of prior illegal conduct. The Commonwealth was allowed to present testimony (over the defendant's objection) that approximately ten months prior to the victim's stabbing, the defendant was arrested for soliciting a prostitute. On the night of this arrest, the defendant was assigned to the overnight shift at the water treatment plant. The Commonwealth argued that the evidence was admissible as evidence of the defendant's ability, opportunity, and knowledge to commit the crime, since he worked the overnight shift at the time the victim was allegedly killed. To support its contention, the Commonwealth introduced records from the plant that showed that the defendant had made certain hourly recordings on both nights. This evidence tended to show that, despite his work schedule and the log records, the defendant nonetheless had the opportunity, ability, and knowledge necessary to solicit and pick up a prostitute in Brockton. The judge gave limiting instructions both at the time the evidence was presented and when he charged the jury.

Although the question is a close one, we cannot say that the judge abused his discretion in allowing the Commonwealth to present this testimony. The judge instructed the jury that the probative force of the evidence was not that the defendant "has a bad character," in that he picked up prostitutes. The judge told the jury that they could "consider the evidence to the extent it may be found to establish a plan or scheme or a particular way...