Com. v. Lanigan

• Citation: 641 N.E.2d 1342,419 Mass. 15
• Parties: , 63 USLW 2376, 63 USLW 2399 COMMONWEALTH v. Thomas J. LANIGAN.
• Decision Date: 18 November 1994
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1342

641 N.E.2d 1342

419 Mass. 15, 63 USLW 2376, 63 USLW 2399

COMMONWEALTH v. Thomas J. LANIGAN.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Sept. 8, 1994.

Decided Nov. 18, 1994.

William C. McPhee, Quincy, Dolores E. O'Neill, Boston, with him, for defendant.

Stephanie Martin Glennon, Asst. Dist. Atty., for the Com.

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

WILKINS, Justice.

In Commonwealth v. Lanigan, 413 Mass. 154, 596 N.E.2d 311 (1992) (Lanigan I ), this court upheld a pretrial ruling that had excluded the admission of deoxyribonucleic acid (DNA) test results that showed a match between the defendant's DNA and DNA found on the clothes of one of the victims. We did so because it did not appear that the process that the Commonwealth used for estimating the frequency with which the defendant's DNA profile would occur in the population had been generally accepted in the field of population genetics. On remand, the Commonwealth immediately advanced a new and different process for determining the likelihood of a DNA match. On the basis of that new process, a judge ruled in the Superior Court that DNA evidence tending to incriminate the defendant was admissible. ¹

At a bench trial in which the defendant stipulated to the evidence against him, including the DNA evidence, the defendant was found guilty of rape of a child and of indecent assault and battery on three minors. We granted the defendant's application for direct appellate review and once again consider the admissibility of DNA test results. See Commonwealth v. Daggett, 416 Mass. 347, 622 N.E.2d 272 (1993); Lanigan I, supra; Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440 (1991). This time we conclude that an adequate basis for the admission of testimony on the statistical probability of a DNA match is established, and thus the DNA evidence was admissible. Before we may properly reach and discuss the DNA evidentiary issue, however, we discuss and reject the defendant's argument that the delay in his trial required the dismissal of the charges against him.

1. The defendant argues that two motions for dismissal of the charges against him should have been allowed because of the denial of his right to a timely trial pursuant to Mass.R.Crim.P. 36, 378 Mass. 909 (1979), and because of the denial of his constitutional right to a speedy trial under the Sixth and Fourteenth Amendments to the Constitution of the United States and art. 11 of the Massachusetts Declaration of Rights. We reject both aspects of his argument.

The defendant contends that his motions for dismissal of the charges should have been allowed because three intervals of time should not have been excluded in the calculation of the date by which, pursuant to Mass.R.Crim.P. 36(b), he should have been tried. Only two of them require any analysis. ²

The defendant asserts that the one-year period consumed by the Commonwealth's appeal in Lanigan I (from the allowance of his motion in limine to exclude DNA evidence) should have been counted in calculating the time within which rule 36(b) prescribes that he should have been tried. Rule 36(b)(2)(A)(iv) expressly excludes any period of delay "resulting from interlocutory appeals." This exclusion applies to appeals by the Commonwealth. See Commonwealth v. McCants, 25 Mass.App.Ct. 735, 740 n. 1, 522 N.E.2d 15 (1988); Commonwealth v. Stevenson, 22 Mass.App.Ct. 963, 964, 494 N.E.2d 1040 (1986). That one-year period was properly excluded in the rule 36 calculation.

The defendant also objects to the exclusion of the period of delay immediately following Lanigan I resulting from the presentation of, and deliberations on, the Commonwealth's attempt to support the admission of DNA test results based on new probability estimates. On the day after the rescript in Lanigan I was received in the clerk's office, the Commonwealth requested of a Superior Court judge that he find, pursuant to rule 36(b)(2)(F), that the ends of justice served by granting a continuance for reconsideration of the admissibility of DNA test results "outweighed the best interests of the public and the defendant in a speedy trial." The judge made such a finding. The Commonwealth was ready to and did forthwith present expert testimony in support of a different DNA frequency calculation from that rejected in Lanigan I. In Lanigan I, this court noted the existence of an approach that appeared likely to be more acceptable than the frequency calculations considered in that case (see Lanigan I, 413 Mass. at 163, 596 N.E.2d 311) and left open the question whether the Commonwealth might be allowed to submit additional frequency estimates (id. at 166 n. 13, 596 N.E.2d 311). The ends of justice and the public interest in the resolution of the admissibility of incriminating DNA test results justifies the judge's finding that any period of delay involved in reconsideration of the admissibility of DNA test results should be excluded for rule 36 purposes. This case presented special circumstances concerning a relatively new method of significant potential in the proof of guilt in criminal cases. As required by the rule, the judge set forth adequate reasons for finding that the ends of justice justified excluding the period of delay from the rule 36 calculation.

Certainly the fifty-three month span between the defendant's arraignment and his trial is sufficient to invoke a constitutionally-based speedy trial analysis. See Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 2191-2192, 33 L.Ed.2d 101 (1972); Commonwealth v. Edgerly, 390 Mass. 103, 104, 453 N.E.2d 1211 (1983). We consider the length of the delay, the reasons for it, the extent of the defendant's assertion of his right to a speedy trial, and the prejudice, if any, to the defendant. ³ The considerable delay was attributable to the matters related to DNA testing: (a) the obtaining of the test results, (b) the hearing and deliberations in the Superior Court leading to the ruling that the evidence was inadmissible, (c) the appellate process resulting in Lanigan I, and (d) the reconsideration of the admissibility question following this court's opinion in Lanigan I. In none of this was the Commonwealth a culpable cause of delay. In fact, in certain instances, the Commonwealth acted with commendable promptness.

The defendant, who has been incarcerated throughout the pendency of the charges, did not move for dismissal of the charges on speedy trial grounds until more than two years after his arraignment, and now makes no claim that that motion was improperly denied. In April, 1992, while Lanigan I was pending in this court, and again in December, 1992, while a Superior Court judge had the post-Lanigan I admissibility question under advisement, the defendant again moved for dismissal. For reasons we have already set forth in discussing the defendant's rule 36 argument, there were strong public interest reasons justifying the delay. See Barker v. Wingo, supra 407 U.S. at 531, 92 S.Ct. at 2192; Commonwealth v. Edgerly, supra 390 Mass. at 105, 453 N.E.2d 1211. Moreover, the defendant agreed to various continuances and sought others. The record does not indicate the defendant's zealous pursuit of his right to a speedy trial.

Most important is the fact that the defendant cannot show that he was significantly prejudiced by the delay. He stipulated to the Commonwealth's evidence at trial and presented no evidence in his defense. There can be no showing that any memory faded or any witness disappeared. Indeed the evidence against the defendant from prospective witnesses who knew him was substantial, quite apart from the DNA test results. It is true that the delay enabled the Commonwealth to support the admission of evidence showing the statistical probability of a match of the defendant's DNA in the general population and thus to achieve the admissibility of the DNA test results. A late discovery of incriminating evidence or a late determination of the admissibility of incriminating evidence which occurs as a result of a claimed improper delay in the trial of a case does not alone present the kind of prejudice to a defendant's case with which constitutional speedy trial principles are concerned. The prejudice that is relevant is the impairment of the defendant's case by reason of the delay. See Commonwealth v. Edgerly, supra at 105-106, 453 N.E.2d 1211; Commonwealth v. Look, 379 Mass. 893, 901-902, 402 N.E.2d 470, cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 31 (1980). None is shown here. The defendant's constitutional rights to a speedy trial were not violated.

2. We come then to the admissibility of the evidence relating to the results of DNA testing. As we have already noted, a test comparing the defendant's DNA and DNA obtained from the clothes of one of the victims indicated a match. Over the defendant's objection, evidence of the match and of its statistical significance was submitted to the judge as the trier of fact. Evidence of a match based on currently used testing processes is meaningless without evidence indicating the significance of the match. See Commonwealth v. Curnin, 409 Mass. 218, 222 & n. 7, 565 N.E.2d 440 (1991). The defendant's challenge is to the admission of expert opinion evidence as to the statistical significance of the match, that is, evidence of the probability of a random match of the defendant's DNA in the general population. Based on various assumptions, the expert testimony concerning the probability of a match of the defendant's DNA in the general population ranged from 108,000 to one to 311,000 to one. His argument is that the process by which the probability of a random DNA match was determined is not generally accepted in the scientific community and thus lacks a necessary basis for its admission in evidence.

The expert testimony concerning the probability of a random DNA match was based on what the Commonwealth argues is a conservative approach...