Com. v. Williams

Decision Date08 January 2010
Docket NumberSJC-10245.
Citation919 N.E.2d 685,455 Mass. 706
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Leslie W. O'Brien for the defendant.

M. Catherine Huddleson, Special Assistant District Attorney, for the Commonwealth.



Following a jury trial in the Superior Court, the defendant was convicted of felony-murder in the first degree of Scott Michael Kelly.1 In this direct appeal from his convictions, the defendant argues error in the denial of his motion to suppress evidence of certain deoxyribonucleic acid (DNA) test results because the testing, which exhausted the only DNA samples available, was conducted when the defendant's expert was absent. We conclude that the motion to suppress was properly denied. Based on our review of the entire case, we decline to exercise our authority under G.L. c. 278, § 33E, to grant the defendant a new trial or other relief.

1. Background. a. The trial. From the evidence the jury could have found the following. In the early morning hours of March, 10, 2004, the defendant was in the company of Gilbert Wilding and three others at Wilding's home in Berkley. The group was drinking beer and consuming cocaine after having been drinking in Taunton. Around 7:30 A.M. the defendant dialed the cellular telephone of the victim, Scott Michael Kelly, who was a person known to deal drugs. At the conclusion of the call, and in apparent reference to obtaining cocaine from the victim, the defendant informed Wilding that if the latter could procure a ride, "his boy would hook him up." Wilding then telephoned his brother, David Lawson, who arrived at the Wilding residence shortly thereafter in his car—a black Ford Taurus automobile with American flags attached to each of the rear passenger windows. The defendant sat in the front passenger seat, Wilding in the back seat, and Lawson drove. The trio proceeded to Taunton, with the defendant directing Lawson to 60 Broadway Street in Taunton, the address of the apartment building where the victim lived.

When the group arrived at their destination, the defendant got out of Lawson's car, walked along the driveway to the side of the building, and was out of sight for only two to three minutes. He then returned to the car, spoke briefly with Wilding, and went back to the apartment building for an additional two to three minutes. The tenant in the second-floor apartment, who was herself leaving the building, saw the defendant leave the building by the side porch and go around to the building's front. He was a heavy-set black male who had on a flannel "overshirt that construction workers wear."2 The defendant returned to Lawson's car, got into the front passenger seat, and said, "We're all set. Let's go." The car then drove away. The defendant was at 60 Broadway Street for no more than ten minutes; he, and the Lawson vehicle, departed shortly before 9:20 A.M.

The victim was stabbed while in the basement of the apartment building at 60 Broadway Street. He climbed up the stairs to the first floor where he kicked the door of the first-floor apartment in an attempt to get help. The tenant living in that apartment, Tonya Ferguson, and Paul Barros, a friend of the victim who had been in the victim's apartment on the third floor until he heard the door banging and Ferguson's scream from the first floor, ultimately located a cellular telephone and dialed 911. However, the victim died on the stairs between the first and second floors. The telephone call to 911 was placed between 9:18 A.M. and 9:20 A.M., shortly before police officers arrived.

On the same day as the killing, March 10, the police obtained the records of the victim's cellular telephone, which led them to the Wilding residence in Berkley. They were allowed in by Donna Wilding and after looking around the house, found the door to a cellar; they called down for anyone there to come up, but no one responded. They proceeded down to the cellar where they found the defendant. When found, he had in his possession a piece of paper with the victim's telephone number on it. He was also holding a checkered flannel shirt or jacket.

The victim died of a single stab wound to his chest, and there was considerable blood at the scene of the killing. During the ensuing investigation of the case, State police forensic chemists collected a number of blood samples, eight of which were the subject of the defendant's motion to suppress. Two of these eight came from the checkered jacket or shirt that the defendant was holding when he was arrested, one came from the defendant's left hand, two from his right hand, and three from the passenger area of Lawson's automobile (one each from the exterior door handle, interior door panel, and interior door pull). All of the blood samples were sent to the State police crime laboratory (crime laboratory) for DNA testing and analysis in the weeks after the incident.

The results of the DNA analysis were mixed. The blood sample from the defendant's left hand contained a mixture of DNA of at least three individuals, at least one of whom was an unknown male; the victim, however, was excluded as a possible contributor to the sample. The blood sample from the defendant's right hand webbing contained a DNA mixture of two individuals, at least one of whom was an unknown male, but again the victim was excluded as a possible contributor. The other sample from the defendant's right hand contained an insufficient amount of DNA to produce any conclusive results, as did one of the samples from the defendant's checkered jacket or shirt. The second sample taken from this garment originated from at least one male, and the victim could not be excluded as a possible source of that sample. In two of the samples from Lawson's automobile—one from the exterior door handle and one from the interior door panel—the victim was identified as the primary DNA source. The final sample, taken from the interior door pull, originated from at least one male, but no conclusions could be drawn as to whether the victim was the source.

b. DNA testing. At some point after the defendant was indicted in this case, the crime laboratory reported to the prosecutor that each of the blood samples just described was of such limited size that a single DNA analysis would consume it in its entirety. On learning this fact, the prosecutor notified the defendant's counsel, who indicated that he would secure his own expert to observe the testing at the State crime laboratory. Arrangements to this effect were completed in October, 2004, and the defendant's counsel signed an "exhaustive DNA testing authorization" form on which he checked the box notifying the prosecutor that the defendant requested to have his expert present at the testing. In November, 2004, the crime laboratory notified the prosecutor that there was a backlog of six to eight months before the case would be assigned to a chemist for DNA testing, and that, once assigned, it would take an additional six to eight weeks to complete the tests. Based on this timetable, the parties anticipated being able to select a trial date by the following spring. By April, 2005, however, because of the backlog, the samples still had not been assigned to a chemist for analysis. In order to schedule a trial date, the parties agreed that the Commonwealth would send the samples to a private laboratory with instructions for expedited testing. The samples were sent to Orchid Cellmark (Cellmark) in Germantown, Maryland, in June, 2005. A rush order request as well as a request to have the defendant's expert present during the DNA testing were contained in the transmittal letter from the Massachusetts State police to Cellmark's Germantown laboratory.

At some point, the parties chose July 25, 2005, as the trial date. During June and July, 2005, the prosecutor monitored the progress of the Cellmark testing, but was informed on July 6 that the defense expert, John Abbott, could not be present to observe the analysis until July 19. As a result, Cellmark could not complete the testing in time for the previously selected July 25 trial date. The parties then jointly moved to continue the trial from July 25 to August 29, 2005.

Unknown to either the prosecution or defense at the time, Orchid Cellmark was in the process of closing the Germantown laboratory and transferring all cases to its laboratory in Dallas, Texas. These events caused further postponements of the trial date. The blood samples were received in Cellmark's Dallas facility on August 31, 2005. At the same time, Cellmark was in the process of implementing new processing procedures at that laboratory which, when combined with the "tremendous increase in casework" resulting in part from the closure of the Germantown laboratory, created a breakdown of communication between and among Cellmark analyst teams. As a result of such breakdowns, the rush order that had originally accompanied the blood samples to Cellmark's Germantown laboratory was honored, but the request to have the defendant's expert present was not. Abbott contacted the Dallas laboratory on September 26, 2005, after the DNA analysis was already in progress.3 Cellmark completed the entire DNA analysis without Abbott's being present. Cellmark issued its report on the DNA analysis results on September 30, 2005.

After receiving a copy of the Cellmark test results, the defendant filed a motion to suppress the DNA evidence, based on the loss or destruction of potentially exculpatory evidence by the Commonwealth "and/or its agent Orchid Cellmark." The motion was heard on October 24, 2005, and May 12, 2006.4 At the October 24 hearing, the Commonwealth submitted the entire DNA case file from Cellmark, including all the test records and results. Defense counsel acknowledged that only a single test could be performed on the samples, but...

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