Com. v. Dixon

• Decision Date: 09 December 2010
• Docket Number: SJC-10668.
• Parties: COMMONWEALTH v. Jerry DIXON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

938 N.E.2d 878

458 Mass. 446

COMMONWEALTH

v.Jerry DIXON.

SJC-10668.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 7, 2010.

Decided Dec. 9, 2010.

Veronica J. White (Alexandria B. Lynn with her) for the defendant.

John P. Zanini, Assistant District Attorney (Joshua I. Wall, Assistant District Attorney, with him) for the Commonwealth.

Martha Coakley, Attorney General, Pamela L. Hunt, Assistant Attorney General, & James J. Arguin, for the Attorney General & others, amici curiae, submitted a brief.

Janet Hetherwick Pumphrey, Committee for Public Counsel Services, John Reinstein, Boston, & Peter S. Krupp, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹

CORDY, J.

A Superior Court judge reported the following question for interlocutory review: ²

"Does the statute of limitations set forth in G.L. c. 277, § 63, bar the prosecution of the defendant for the crimes of aggravated rape (G.L. c. 265, § 22 [ a ] ), and rape (G.L. c. 265, § 22 [ b ] ), where the Suffolk County grand jury returned indictments on these charges within the period of the statute of limitations that identify the perpetrator ... as 'JOHN DOE (a black male, approximately 16-18 years of age, 6'0? and 160-170 lbs, as of July 13, 1991, and further described by the [deoxyribonucleic acid (DNA) ] profile appended to the indictments ... ),' and where the indictments did not identify the perpetrator as Jerry Dixon until after the expiration of the statute of limitations, when his DNA profile was determined to match the DNA profile contained in each of the indictments?"

We conclude that the criminal prosecution of the defendant in this case, Jerry Dixon, is not time barred. In reaching this conclusion, we hold that: (1) the description of "John Doe" in the indictment, primarily consisting of his genetic identity, comported with the particularity requirements of art. 12 of the Declaration of Rights of the Massachusetts Constitution;and (2) the return of such an indictment tolled the fifteen-year statute of limitations for aggravated rape and rape as set out inG.L. c. 277, § 63.³ Accordingly, our answer to the reported question is, "No."

1. Background.⁴ On March 19 and 20, 1991, an unidentified man kidnapped, assaulted, raped, and robbed a woman in Suffolk County while armed. On July 13, 1991, another woman was assaulted and raped in Suffolk County, and the attacker, again, went unidentified.⁵ The suspect in each case was described as a black male, sixteen to eighteen years of age, standing approximately six feet tall, and weighing approximately 160 to 170 pounds. Although sexual assault evidence kits, containing vaginal swabs from the victims, were turned over to the Boston police department, tests capable of isolating DNA particles to create a genetic identification sequence were unavailable to it as a forensic tool at that time.⁶

Someone other than the defendant was subsequently indicted for and convicted of committing the March, 1991, attack. In 2004, after serving twelve years in prison, that person was released when testing of the DNA residue (assayed from the vaginal swabs collected after the March, 1991, attack) establishedthat he had not committed the crime.⁷ As of 2004, no one had been indicted for the July, 1991, assault and rape.

In the aftermath of the DNA testing that had exonerated the person convicted of the March, 1991, sexual assault, analysts at the Boston police crime laboratory reexamined the physical evidence collected after the March and July attacks. In both cases, the preserved evidence included DNA molecules from which analysts were able to create DNA profiles, identifying the unique genetic composition of the suspects. They were identical, indicating asingle perpetrator. The proper name of this suspect, however, remained unknown.

On March 15, 2006, just days before the fifteen-year statute of limitations period imposed for the crime of rape would have lapsed, a grand jury voted to return indictments (collectively, the March 15 indictments) charging the suspect with, among other crimes, aggravated rape in connection with the March, 1991, attack.⁸ The indictments identified the perpetrator as: "JOHN DOE, (a black male, approximately 16-18 years of age, 6'0? and 160-170 lbs, as of July 13, 1991, and further described by the DNA profile appended to the indictments as Appendix A)." ⁹ On July 11, 2006, another grand jury voted to return indictments (collectively the July 11 indictments) charging an identically identified individual with aggravated rape in connection with the July, 1991, attack—again, days before expiration of the limitations period. ¹⁰

At some time before July, 2008, Jerry Dixon, while serving a prison sentence for an unrelated crime, provided a DNA sample to the State police crime laboratory as required by G.L. c. 22E, § 3.¹¹ Analysts generated a DNA profile of Dixon, which was thereafter entered into the Federal Bureau of Investigation's "combined DNA index system" (CODIS).¹² Dixon's DNA profile matched the precise genetic sequence appended to the March 15 and July 11 indictments.¹³ On July 14, 2008, the Commonwealth moved successfully to amend both sets of indictments to affix the name "Jerry Dixon," under the authorityconferred by G.L. c. 277, § 19.¹⁴

On January 14, 2009, Dixon filed a motion in the SuperiorCourt to dismiss the March 15 and July 11 indictments on grounds that all applicable statute of limitations periods prescribed by G.L. c. 277, § 63, had lapsed. Dixon argued, inter alia, that he was not on notice of his indictment until his proper name had been added, approximately two years after the fifteen-year period for rape expired. As such, he contended that the Commonwealth had circumvented the statutory limitation on criminal proceedings by indicting his DNA sequence as a placeholder until his true identity could be ascertained. On February 17, 2009, a Superior Court judge reported the question presently before us to the Appeals Court for interlocutory review. Because the question was one of first impression and likely to recur, we transferred the reported question to this court on our own motion.¹⁵

2. Discussion. We first address the validity of the indictment under the requirements of art. 12. Next, we determine whether the indictment tolled the statute of limitations as provided in G.L. c. 277, § 63. We conclude by discussing other arguments advanced by the defendant.

a. Constitutionality of the DNA indictment. Article 12 ensures that no subject of the Commonwealth "shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." This principle has been viewed as reflecting the law of the land, derived from "ancient immunities and privileges of English liberty," that secures in each individual a privilege against prosecution for high offenses (or infamous crimes) "unless he shall have been previously charged on the presentment or indictment of a grand jury." Jones v. Robbins, 8 Gray 329, 344-345 (1857), quoting 2 Kent Com. 12. (right to "presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions").See Commonwealth v. Holley, 69 Mass. 458, 3 Gray 458, 459 (1855). See also Connor v. Commonwealth, 363 Mass. 572, 576, 296 N.E.2d 172 (1973) ( Connor ).

The crimes of rape and aggravated rape are offenses requiring indictment. See G.L. c. 263, § 4. Before rendering an indictment, a grand jury must hear sufficient evidence to establish both the identity of the accused and that there is probable cause to arrest him. See Lataille v. District Court of E. Hampden, 366 Mass. 525, 531, 320 N.E.2d 877 (1974); Connor, supra; Jones v. Robbins, supra at 344.The defendant does not contend that there was insufficient evidence before the grand jury to establish probable cause that the suspect identified in the DNA profile committed the crimes charged. Rather, he takes issue with the adequacy of his identification in the indictment as the perpetrator.

In Connor, supra at 576, 296 N.E.2d 172, we amplified the meaning of the identification requirement, holding that "[i]t is an inescapable conclusion that the indictment must contain words of description which have particular reference to the person whom the Commonwealth seeks to convict." In other words, an indictment must identify the accused with a modicum of "particularity." Maryland v. Garrison, 480 U.S. 79, 84 & n. 8, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), and cases cited. See Connor, supra at 576-577, 296 N.E.2d 172.

The indictment in Connor, supra at 575, 296 N.E.2d 172, was returned against "John Doe, the true name and a more particular description of the said John Doe being to the said Jurors unknown," which we concluded was insufficient to show that the grand jury had found probable cause against the defendant. That is, that the description of the accused in the indictment "expressed no more than the grand jury's intention to accuse a man, otherwise unspecified, of the crime of murder." Id. at 578, 296 N.E.2d 172. However, we were also careful to point out that indictments may pass constitutional muster without inclusion of the true or full name of the defendant. Id. at 577, 296 N.E.2d 172. See G.L. c. 277, § 19. We declined to establish, by general reference, examples of minimum descriptive content, except to impose a bright-line rule that a John Doe indictment, without any accompanying information, offers neither a "clue to identity" nor the slightest indicia of probable cause, and standing alone, is "synonymous with anonymity." Id. at 577-578, 296 N.E.2d 172.

The John Doe indictments in this case, identifying Dixon primarily by his...