Com. v. Grinkley

• Decision Date: 23 November 2009
• Docket Number: No. 08-P-1170.,08-P-1170.
• Citation: 917 N.E.2d 236,75 Mass. App. Ct. 798
• Parties: COMMONWEALTH v. Michael GRINKLEY.
• Court: Appeals Court of Massachusetts

917 N.E.2d 236

75 Mass. App. Ct. 798

COMMONWEALTH v. Michael GRINKLEY.

No. 08-P-1170.

Appeals Court of Massachusetts, Suffolk.

Argued September 17, 2009.

Decided November 23, 2009.

David M. Skeels, Cambridge, Committee for Public Counsel Services, for the defendant.

David D. McGowan, Assistant District Attorney (Leora Joseph, Assistant District Attorney, with him) for the Commonwealth.

Present: BERRY, KAFKER, & GRAINGER, JJ.

KAFKER, J.

Irrelevant deoxyribonucleic acid (DNA) statistics and improper appeals to juror emotions by the prosecutor needlessly complicated the convictions of the defendant, Michael Grinkley, for indecent assault and battery on a child. Nonetheless, overwhelming evidence of guilt—the defendant was found in bed with his pants down on top of one young victim and beside the other—and a discerning jury, who acquitted the defendant on rape and other charges, rendered the errors harmless. We therefore affirm.

This case arises from several incidents of sexual assault involving the defendant and two minors, his great nieces. The defendant was indicted on four counts of natural sexual intercourse with a child under the age of sixteen and seven counts of indecent assault and battery of a child under the age of fourteen. After a jury trial in December, 2005, he was found guilty of four lesser included offenses of indecent assault and battery of a child under the age of fourteen on the indictments charging statutory rape, but he was found not guilty on the three remaining, separately charged indecent assault and battery counts.¹ On appeal, the defendant argues that his convictions should be reversed because (1) the judge improperly allowed an expert witness to testify to an irrelevant and misleading DNA statistic and (2) the prosecutor's closing argument was improper because it appealed to juror sympathies and misrepresented the defense argument.

1. Background. On February 10 or 11, 2003, the older victim, then eight years of age, and her sister, the younger victim, then six years of age, were being cared for by their aunt Natalie at home in the Dorchester section of Boston.² Also residing in the home were the victims' grandmother Celeste, their grandfather Chester, their five year old brother, and two adult cousins, Tosheiya and Lakeisha (the victims' first cousins, once removed). The defendant was the victims' great uncle (their grandmother Celeste's brother), who lived in the third-floor apartment of the home. Because Celeste, the primary caregiver, was away on the evening of February 10 or 11, Natalie put the girls and their brother to bed together in the girls' room at approximately 9:00 P.M. The older victim was wearing a long T-shirt and underwear. The younger victim was wearing pajama pants with a small rip near the crotch area. After tucking them in, Natalie went up to the defendant's room to smoke a cigarette with several family members and friends, including her cousins. Although some of the men had been consuming alcohol, testimony indicated that the women were not drinking that evening.

At some point thereafter, the defendant went downstairs into the room where the children were sleeping together in the same bed. The older victim testified that the defendant climbed on the bed, "unzipped his fly and pulled out his private spot" (later described by the child as his penis). He moved the covers down to her knees, and climbed on top of her. The defendant then slid her underwear down, at which point "[h]is private spot went up to mines." She felt the defendant's penis "moving around" on top of her vagina. After a period of time, the defendant climbed off her and moved onto her sister, the younger victim. The older victim felt a part of the bed going down and his leg next to her. She then went back to sleep.

The younger victim, who was lying on her stomach, testified that the defendant lay on top of her. The defendant put his "private" through the rip in her pajama pants onto her "private." She then felt something wet and slimy "inside [her] private." She described something "hard" "going against [her] legs." The younger victim also asserted that the defendant touched both her sister and her "in a place that we don't want to be touched in."

Fifteen to twenty minutes later, several of the adults realized that the defendant was not with them in his apartment and went downstairs to look for him. They opened the door to the girls' darkened bedroom and found the defendant, still on top of the younger victim.³ The defendant's pants were at least partially undone and Natalie stated that his buttocks were exposed. Natalie was also able to see the younger victim's bare legs underneath the defendant, while Tosheiya testified that she could see the younger girl's exposed buttocks. Natalie asked the defendant what he was doing, prompting him to respond brazenly: "Ha-ha. You know how that goes." Lakeisha similarly stated that when discovered, the defendant said "Ha-ha-ha. You know how we do." Tosheiya asserted that she heard the defendant respond "`Don't act like you don't know how it goes down in this family,' or something to that effect."

His casual remarks, along with the compromising situation in which he was found, caused several of the family members to kick, punch, and nearly stab the defendant with a hastily grabbed knife while removing him from the bedroom.

After the defendant had been separated from the girls and taken to another room, Natalie spoke with each child individually. When the police arrived later that evening, the two victims were taken to the Boston Medical Center for the administration of a sexual assault evidence collection kit. The resulting forensic samples were forwarded to the Boston police crime laboratory (laboratory) for processing and DNA testing.

Both girls testified that the defendant had inappropriately touched each of them on a prior occasion. At trial, the older victim testified that at some point in the past she, her younger sister, and their brother were watching a movie in the defendant's apartment when the defendant licked her vagina. She could not remember if her clothes were on or off. She also testified that on the same occasion, the defendant "got [her] hand and made [her] touch his penis." He was wearing clothes at the time. The incident was interrupted when their grandmother said there was a telephone call for the defendant.

The younger victim similarly testified to an occurrence in the defendant's apartment on the third floor where the defendant looked at pornographic magazines (described by the girl as "magazines with nasty things in it") with all three children. He then made the girls pull down their pants and get in his bed, where he proceeded to lick their "private spot." The younger victim stated that he then pulled the covers over them, made his private spot touch hers, and moved up and down repeatedly. Additional facts regarding the assaults and the follow-up investigation will be set forth as necessary to address the particular legal issues raised.

2. DNA evidence. On the night of the February 10 or 11, 2003, incident, a number of biological samples were taken from the victims as part of the sexual assault kit examination. No semen was found in any of the testing. The samples, which contained amylase, an enzyme contained in biological fluids such as saliva, were submitted to the laboratory for DNA extraction, amplification, and analysis in accordance with its applicable protocols. The laboratory performed polymerase chain reaction (PCR) testing and produced a profile of the DNA found in the samples. At the time, the laboratory examined sixteen different loci on the DNA molecules found in the samples to compile the DNA profile or profiles present in each sample. By means of comparisons to reference DNA samples of the victims and the defendant, the laboratory attempted to determine whether the particular known individual's alleles were the same as those present at the loci in the DNA samples tested.⁴

Of the samples tested in this case, one— the perianal swab from the older victim— showed results indicating the presence of DNA not belonging to the victim in addition to the victim's own DNA and thus was the only sample of any possible relevance in linking the defendant to the crimes charged via a DNA match.⁵ The profile found in that sample was an "inclusion" for the older victim; her alleles were the same as those identified at every location tested. The defendant was neither included nor excluded as a contributor of the additional DNA found in the sample.⁶ Five of his alleles were possible matches to alleles found in the sample that could not have been contributed by the older victim. Twelve alleles of the defendant were not found in the sample.⁷ No allele was detected that could not have been contributed by either the older victim or the defendant. The older victim's alleles were also darker, thereby indicating that she was the primary contributor to the sample.⁸

None of the testing methodology so far described is at issue on appeal. At trial, however, the Commonwealth's expert witness, Julie Lynch, testified to a statistic purporting to represent the proportion of different racial populations that could be possible contributors of their entire DNA to the profile identified in the perianal sample. Despite the defendant's repeated pretrial and trial objections and requests for a Daubert-Lanigan hearing regarding the statistical methodology, all of which were denied, see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994); the prosecution was permitted to offer Lynch's statistical opinion that only approximately "one in three hundred and twenty billion African-Americans ... are included as being possible contributors to the mixture detected on that sample."⁹ Lynch explained that that meant "basically a fraction of one percent...