Com. v. Rosier

• Citation: 425 Mass. 807,685 N.E.2d 739
• Parties: COMMONWEALTH v. Adam ROSIER.
• Decision Date: 25 August 1997
• Court: United States State Supreme Judicial Court of Massachusetts

Page 739

685 N.E.2d 739

425 Mass. 807

COMMONWEALTH v. Adam ROSIER.

Supreme Judicial Court of Massachusetts.

Argued May 5, 1997.

Decided Aug. 25, 1997.

Russell C. Sobelman, Lynn, for defendant.

David F. Capeless, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

GREANEY, Justice.

A jury in the Superior Court convicted the defendant, Adam Rosier, of murder in the first degree (by reason of deliberate premeditation and extreme atrocity or cruelty) of sixteen year old Kristal Hopkins. Represented by new counsel on appeal, the defendant contends that a new trial is required because of error in the admission of deoxyribonucleic acid (DNA) test results that tended to identify samples recovered from the defendant's automobile as coming from the victim, and in the jury instructions concerning evaluation of the DNA evidence and the issue of intoxication. We reject the defendant's arguments. We also find no basis to exercise our authority pursuant to G.L. c. 278, § 33E, to grant the defendant any relief. Consequently, we affirm his conviction.

We first provide an overview of the Commonwealth's case against the defendant. After attending a party where people were watching football, drinking beer, and smoking marihuana, the defendant drove away in an automobile with the victim. A witness testified that he saw the victim and the defendant at the party talking and drinking beer, and that they both appeared to be drunk. The next day, hunters found the victim alive in the Pittsfield State Forest. She was barely breathing, clothed only from the waist up, and covered with blood. Her face was badly beaten, and she had deep abrasions, open wounds, and "road burns" on both sides of her legs. Her torso was scraped and bruised, and she had bruises and red marks around her neck. The victim died two hours after being rushed to a hospital. A State trooper involved in the investigation observed, approximately one-half mile away from the main gate of the State forest, skid marks going off the road and a tree that appeared to have been hit by an automobile (as evidenced by the transference of paint). The trooper recovered pieces of shattered safety glass and a piece of black plastic imprinted with a series of numbers and the Ford Motor Company logo.

The medical examiner testified that his autopsy of the victim revealed injuries that were consistent with large blunt trauma, which could have been caused either by impact or by compression. He stated that, if the victim had been struck by an automobile, the injuries were consistent with the body's being struck while in a crawling or semi-prone position. He expressed the opinion that all of the injuries were consistent with the victim's having been struck, run over, and dragged by an automobile, in two different directions.

On the night of the murder, the defendant was driving a Mercury Capri automobile (a Ford Motor Company product), owned by his girl friend's father. The defendant told the father, when questioned about damage to the vehicle's passenger side door and a broken window, that someone had backed into it. ¹ The next day, the defendant asked a friend if he had heard about the girl killed in the State forest; his friend responded, "What the hell did you do now?" The defendant replied that he had "fucked up" and killed her. The defendant went on to explain that he had had sexual intercourse with the victim, after which they engaged in a violent argument. The defendant stated to his friend that he had thrown the victim and her clothing out of the automobile, had hit and "stomped" on her "to shut her up," and then had backed the automobile over the victim and drove forward again, running her over once more. The defendant also told a cellmate at the Berkshire County house of correction that, "[l]ike that girl, I know I did it, I know I killed that girl." The defendant warned this witness not to tell anyone about his admission.

We next describe the background of the DNA evidence. During its investigation, the State police recovered bloodstains from the undercarriage of the Mercury Capri, from a tire, and from the inside passenger side of the vehicle. The State police also recovered "a white threadlike substance" that appeared to be human tissue from the undercarriage. The Commonwealth engaged Cellmark Diagnostics (Cellmark), a recognized forensic laboratory located in Germantown, Maryland, to perform DNA testing on two blood stains taken from the undercarriage of the automobile, one blood stain from the front tire on the passenger side, one blood stain taken from the passenger side quarter panel, the threadlike substance that appeared to be human tissue found on the undercarriage, a blood sample taken from the victim, and one taken from the defendant. ² Cellmark completed the testing using the polymerase chain reaction (PCR) method, and submitted a written report to the State police. The report concluded that PCR-based testing disclosed that the victim could not be excluded as the source of the DNA obtained from three of the blood stain samples and the human tissue sample, ³ and that the approximate frequencies in the Caucasian and African-American populations between the genotypes analyzed in the sample, when compared with the same genotypes obtained from the victim's blood sample, were 1 in 770,000 for the Caucasian population and 1 in 7.5 million for the African-American population.

The defendant filed a motion in limine to exclude the Cellmark DNA test results from evidence. A judge in the Superior Court held an evidentiary hearing on the motion, ⁴ where he heard testimony from two prospective Commonwealth witnesses, Dr. Charlotte J. Word, a microbiologist specializing in DNA identification testing and Senior Scientist at Cellmark, and Dr. Christopher J. Basten, a population geneticist from North Carolina State University. After the hearing, the judge entered a memorandum of decision in which he concluded "that the proffered expert opinion evidence concerning the results of Cellmark's PCR-based DNA testing in this case, as well as expert opinion evidence as to the validity and reliability of Cellmark's statistical analysis, will assist the trier of fact to understand the evidence or otherwise to determine a fact in issue [and] that the results are scientifically valid and reliable, and that the testimony which [the court] heard complies with the standard enunciated in both [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-595, 113 S.Ct. 2786, 2796-2798, 125 L.Ed.2d 469 (1993), and Commonwealth v. Lanigan, 419 Mass. 15, 24-27, 641 N.E.2d 1342 (1994) ]." The DNA test results were admitted in evidence before the jury through the testimony of Dr. Word and Dr. Basten (and two other witnesses), and no issue is raised that the defendant has not preserved the right to challenge the judge's rulings on appeal.

1. We turn now to the issues involving the DNA evidence. As has been indicated, the samples submitted by the State police for DNA analysis were examined by the PCR method, ⁵ and Cellmark performed DQA1, PM, and STR testing, using three commercial kits. ⁶ We have explained the PCR method and the process of testing at the DQA1 and PM loci in Commonwealth v. Vao Sok, 425 Mass. 787, 683 N.E.2d 671 (1997). We need to explain STR testing. ⁷ STR is an acronym for short tandem repeat. A tandem repeat involves multiple copies of identical DNA sequence arranged in direct succession in a particular region of a chromosome. A short tandem repeat is a tandem repeat in which the repeat units are three, four, or five base pairs (a base pair has two complementary nucleotides). Loci containing STRs are scattered throughout the chromosomes in enormous numbers. Such loci have a fairly large number of alleles and are usually capable of unique identification. Cellmark tested at three STR loci, ⁸ which, in combination with the testing at the DQA1 and PM loci, gave results from nine different loci. The STR testing became important in the case because Cellmark had done prior DNA testing on the samples submitted examining only the DQA1 and PM loci and had concluded, based on results from those loci, that the population frequencies between the victim and the Caucasian and African-American population were 1 in 5,500 and 1 in 11,000 respectively. The additional testing of the STR loci, when considered with the results of the DQA1 and PM testing, increased the probabilities to 1 in 770,000 (Caucasian) and 1 in 7.5 million (African-American). As Dr. Basten agreed, STR analysis made a "significant difference" in terms of the frequency in which the genetic markers would be expected to be seen within a population. As the judge found: "At the CSF1PO locus, scientists have observed nine different alleles, giving rise to 45 possible genotypes. At the TP0X locus, seven different alleles have been observed, giving rise to 28 possible genotypes. At the TH01 locus, eight different alleles have been observed, giving rise to 36 possible genotypes."

At the hearing on the motion in limine, the defendant did not specifically challenge the collection and preservation of the samples submitted to Cellmark for DNA testing, the quality control and assurance standards at the laboratory, ⁹ the use of the PCR method, the reliability of the three test procedures or the accuracy of the test results obtained from the use of the typing kits. The judge had an ample basis for finding Dr. Word and Dr. Basten to be well-qualified experts in their respective fields, and he left no doubt about the effect of their testimony when he stated in his memorandum that "I find Dr. Word and Dr. Basten to be extremely impressive, superbly qualified, and completely credible witnesses."

The PCR method is scientifically valid, and testing at the DQA1 and PM loci is scientifically reliable, if properly done. Commonwealth v. Vao Sok, supra at...