Commonwealth v. Bizanowicz

• Decision Date: 14 April 2011
• Docket Number: SJC–10564.
• Citation: 945 N.E.2d 356,459 Mass. 400
• Parties: COMMONWEALTHv.Michael J. BIZANOWICZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 400

945 N.E.2d 356

COMMONWEALTH

v.Michael J. BIZANOWICZ.

SJC–10564.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 7, 2011.Decided April 14, 2011.

Jeffrey L. Baler for the defendant.Marguerite T. Grant, Assistant District Attorney (Adrienne C. Lynch, Assistant District Attorney, with her) for the Commonwealth.Present: IRELAND, C.J., SPINA, COWIN, CORDY, & GANTS, JJ.¹COWIN, J.

Joanne, a friend of the defendant's former girl friend, and her twelve-year-old daughter, Alyssa, were found stabbed to death in their apartment on January 7, 2004.² The defendant was convicted by a jury in the Superior Court of murder in the first degree of both victims. As to Joanne, he was found guilty on the theories of extreme atrocity or cruelty and felony murder. The jury found the defendant guilty of Alyssa's murder on both of those theories and on a theory of deliberate premeditation as well. He was also convicted of one count of aggravated rape of Joanne. The defense at trial was that a third party, most likely the victims' landlord, committed the murders, and that the police investigation was inadequate.

On appeal, the defendant asserts that errors occurred at trial involving the introduction of scientific evidence; the admission of expert testimony by one expert on the results of a test performed by another; and the exclusion of certain evidence related to the victims' landlord that the defendant contends would have assisted him in presenting both an inadequate investigation defense and a third-party culprit defense. The defendant requests also that we exercise our power under G.L. c. 278, § 33E, to reduce the convictions to a lesser degree of guilt or, in the alternative, to grant him a new trial.

We reject the defendant's claims, affirm his convictions of murder in the first degree, and, after review of the entire record pursuant to G.L. c. 278, § 33E, decline to exercise our power to grant extraordinary relief. Because the defendant was convicted of the rape victim's murder on theories of both felony-murder and extreme atrocity and cruelty, the judgment on the indictment charging aggravated rape is not duplicative, and that judgment is affirmed. See Commonwealth v. Felder, 455 Mass. 359, 370-371, 916 N.E.2d 990 (2009), citing Commonwealth v. Brum, 441 Mass. 199, 200 n.1, 804 N.E.2d 902 (2004).

1. Facts and procedural background. We recite the facts that the jury could have found, reserving some details for later discussion. During the summer and fall of 2002, the defendant lived with Bobbie Jo Miller, the mother of their infant daughter, in Woburn. In October, 2002, their romantic relationship ended and the defendant moved to a rooming house in Lowell. However, Miller and the defendant continued to have a cordial relationship and he frequently visited their daughter. In the spring of 2003, Miller became friends with Joanne, who lived with her two children on the same street in Woburn. Miller introduced the defendant to Joanne and the three socialized together on occasion.

In November, 2003, Joanne and her children moved into a two-family duplex across the street from where they had been living. The owner of the house, Harinder Singh, his wife, and their children occupied the other unit in the building. The defendant came to the victims' apartment on a few occasions to assist Joanne with household tasks such as fixing cabinets and connecting the cable television in her new apartment.

On the evening of January 4, 2004, the defendant called Miller to arrange a visit with his daughter; Miller refused him permission to visit because she suspected he was “under the influence.” Joanne came to Miller's house around 7:30 p.m.; she seemed upset and appeared to have been crying. She told Miller that she “needed to get out of the house,” but left after a few minutes. Joanne was not seen alive after that point. Computer records indicated that she used the Internet until approximately 9:30 p.m. She spoke by telephone with Singh and his wife at approximately 10 p.m. Although they did not talk in person, the defendant telephoned Miller several times that evening from his home, and she telephoned him at approximately 11:30 p.m. The defendant's home telephone was in use until approximately 11:45 p.m.

On January 5, 2004, Alyssa was absent from school and the defendant did not go to work. He told his supervisor and Miller's mother that he had been up all night fighting with Miller and that he overslept.³ He told Miller that he missed work because he was “tired and hung over.” The defendant reported to work as usual on January 6, 2004. Between January 5 and January 7, 2004, Joanne's car did not move from her driveway and the shades on her house remained drawn. Telephone calls to Alyssa and Joanne were unanswered.

On January 7, when Joanne did not respond to Miller's persistent knocking, Miller contacted Joanne's parents. They entered Joanne's apartment through the kitchen door, which was open but showed no signs of forced entry. They discovered her partially clad body face down on the living room sofa; she was lying in a pool of blood, dressed only in a black shirt and white sweater that had been sliced open.⁴ Her wrists and ankles bore ligature marks. A rope with duct tape attached was tied around one wrist and there was duct tape on her sweater. Her underwear, a rolled towel containing her saliva, a comforter, and a pillow were nearby. The medical examiner determined that Joanne had been gagged with the towel, bound, and sexually assaulted. The cause of death was seven stab wounds to the neck, one of which nearly severed a carotid artery, and a “contributing factor” of blunt force trauma to the head.

Alyssa's body was found on the floor in an upstairs bedroom, also in a pool of blood. The room showed signs of a severe struggle. Blood spatter and handprints on the wall, defensive wounds on Alyssa's hands and arms, and blood under her fingernails indicated that she had fought strenuously with her attacker, attempted to escape, and been stabbed at several different locations in the room. Trauma to her face, and damage to the inside of her lip from her braces, showed that she had been punched repeatedly in the face. The medical examiner determined that Alyssa died of stab wounds to the neck that severed both carotid arteries.

Joanne's two year old son was found in his crib in his bedroom. He was dehydrated and wearing a heavily soiled diaper, but was otherwise unharmed.

Police investigation focused initially on Singh.⁵ However, Singh's deoxyribonucleic acid (DNA) profile was excluded as a match to the DNA found in semen on Joanne's body and clothing. Several days after the discovery of the bodies, police found and developed several rolls of film from Joanne's apartment. They questioned her friends, particularly Miller, about the individuals in the photographs, a number of which included the defendant. Based on these photographs and interviews, police sought to question the defendant. He agreed to speak with police at his home. He gave conflicting statements about his relationship with Joanne, whom he claimed not to know well; denied having had a sexual relationship with her; and stated that he did not own a vehicle. He had cuts on the knuckles of both hands and was unable to explain their origin.

After a hearing, a Superior Court judge ordered the defendant to produce a DNA sample.⁶ The sample resulted in a confir matory match to DNA in semen found on Joanne and on her clothing. The defendant was arrested following the results of the confirmatory match. Later, testing of blood beneath Alyssa's fingernails could not exclude the defendant as a contributor to that blood.

2. Admission of DNA evidence. The defendant asserts that DNA profile results obtained from evidence found on both victims should not have been admitted. Citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Commonwealth v. Lanigan, 419 Mass. 15, 24–26, 641 N.E.2d 1342 (1994), he claims that the statistical methods employed by the Commonwealth in interpreting the DNA evidence are unreliable, prejudicial, and irrelevant. Alternatively, the defendant contends that the judge erred by declining to conduct an evidentiary hearing on the admissibility of the DNA evidence.

During the course of the investigation, DNA from semen found on the adult victim's body was compared against DNA profiles of convicted offenders stored in the Combined DNA Indexing System (CODIS) database. A DNA match resulting from such a database comparison is known as a “cold hit.” The CODIS database revealed a possible match between the defendant's DNA profile and the DNA found on the adult victim. Comparison of DNA in a blood sample taken from the defendant after a hearing, and the DNA from the semen on the adult victim's body, resulted in what is known as a “confirmatory match.” ⁷ The DNA expert testified that the likelihood of a random individual having the same profile was one in 101.5 quadrillion in the Caucasian population,⁸ one in 1.503 quintillion in the African American population, and one in 329.8 quadrillion in the Hispanic population. The DNA expert stated that a quadrillion is one million times the population of the earth. A partial match to the defendant's DNA was also found in blood under the child victim's fingernails. That blood sample was small and degraded, yielding a partial Y–STR profile match to the defendant's DNA at seven of twelve loci.⁹ While the defendant could not be excluded from that partial DNA profile, 99.6 per cent of the general Caucasian population could be excluded as contributors to the sample.¹⁰

Prior to trial, the defendant filed a motion in limine to exclude all of the DNA evidence. That motion was denied after a nonevidentiary hearing. The defendant then filed a motion in limine to exclude the Y–STR DNA evidence found under the child victim's fingernails. A second motion...