Commonwealth v. Cameron

• Decision Date: 28 October 2015
• Docket Number: SJC–11835.
• Parties: COMMONWEALTH v. Ronjon CAMERON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

473 Mass. 100

39 N.E.3d 723

COMMONWEALTH

v.Ronjon CAMERON.

SJC–11835.

Supreme Judicial Court of Massachusetts, Berkshire.

Submitted Sept. 10, 2015.

Decided Oct. 28, 2015.

Laura Chrismer Edmonds, Springfield, for the defendant.

Joseph A. Pieropan, Assistant District Attorney (Paul J. Caccaviello, Assistant District Attorney, with him) for the Commonwealth.

Stephanie Roberts Hartung, for New England Innocence Project, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, & HINES, JJ.

Opinion

CORDY

, J.

In April, 2003, a jury found the defendant, Ronjon Cameron, guilty on two indictments charging rape, in violation of G.L. c. 265, § 22 (b )

. As part of its case against the defendant, the Commonwealth offered in evidence a laboratory report regarding the presence of seminal residue on the complainant's underwear. The Commonwealth also offered testimony to suggest that there had been a transfer of semen from the defendant onto the complainant's underwear during the rape. Forensic deoxyribonucleic acid (DNA) testing performed before trial indicated the presence of two male sources of the seminal residue on the underwear. Testing as to the primary source excluded the defendant. An expert testified on behalf of the Commonwealth and described the secondary source as both “inconclusive” and as neither including nor excluding the defendant. The defendant was convicted and sentenced to a term of from twelve to sixteen years in State prison.

In October, 2009, the defendant filed a motion for a new trial, which was denied. In January, 2013, he filed a motion to amend and reconsider his motion for a new trial, based primarily on DNA testing performed by an independent laboratory, Bode Technology (Bode). Bode's analysis, using short tandem repeat (STR) testing on sixteen loci,¹ revealed that the secondary source, which the Commonwealth's expert had, at trial, attributed to a male donor, was in fact female DNA to which the defendant was excluded as a possible contributor. As part of the same motion, the defendant argued that he had been deprived of the effective assistance of counsel during trial because trial counsel failed (1) to challenge the admissibility of the DNA testimony and (2) to retain a DNA expert to explain that he should have been excluded as the secondary source of the sample at trial. Without a hearing, a Superior Court judge (who was not the trial judge) denied the defendant's motion, concluding that “the defendant has not established that the newly available evidence would ‘probably have been a real factor in the jury's deliberations' ” (citation omitted). In an unpublished decision pursuant to its rule 1:28, the Appeals Court affirmed the denial, determining that “the defendant has not met his heavy burden of demonstrating that the judge abused his discretion in denying his motion.” Commonwealth v. Cameron, 86 Mass.App.Ct. 1113, 17 N.E.3d 1118 (2014)

.

We granted the defendant's application for further appellate review to consider his claim that the newly available DNA evidence warrants a new trial. Given the importance of the existence of a secondary source of male DNA to corroborate the testimony of the complainant that the defendant had raped her, we conclude that the newly available DNA evidence that conclusively excludes the defendant as a possible donor would likely have been a real factor in the jury's deliberations. That evidence would have cast doubt on the credibility of the complainant and rendered the Commonwealth's strongest corroborative evidence inadmissible. Had the new evidence been available at trial, there is a substantial risk that the jury would have reached a different conclusion. The defendant, therefore, must be given a new trial.²

1. Background. The prosecution presented its case primarily through the testimony of the complainant. Defense counsel called only one witness, the defendant. As the Commonwealth acknowledged during closing argument, “[C]learly credibility is at the forefront of this case. Credibility and believability of [the complainant].”

The complainant testified that, on September 13, 1999, the defendant raped her, both vaginally and anally, in the apartment of her then boy friend. She testified that she thought the defendant had ejaculated. After the rape, the complainant put her clothes back on and left the apartment. At the time, the complainant was wearing a dress, white shorts, and underwear.

Two days after the alleged rape, the complainant went to the police station to report the assault. As part of the detective's preliminary investigation, he took the underwear and the dress that the complainant said she had worn on the night of the purported attack.³

On September 20, seven days after the alleged rape, the complainant went to a hospital. At the hospital, the complainant was examined by Dr. Mark Liponis. Liponis testified that the complainant reported that the man who raped her had ejaculated, but that she was uncertain as to where he had ejaculated. The rape kit, with Liponis's findings, along with the confiscated clothing, was transported to the State police crime laboratory in Sudbury.

Thomas Sendlenski, a chemist at the laboratory, testified that the underwear showed signs of seminal residue, which was collected

for testing. Sendlenski testified that the sample in question could only have been deposited by a male. The sample was sent for DNA testing to Cellmark Diagnostics, a laboratory which has since become Orchid Cellmark (Orchid). Sendlenski also testified about the scientific concept known as “transfer.” As he described to the jury, transfer is an exchange of materials between two items that come in contact with one another.

At Orchid, Kathryn Colombo, a DNA analyst, performed DNA tests on the seminal residue samples collected from the underwear. Colombo testified that she performed a Y-chromosome STR test with regard to the sample she received. She reported that the data from that test indicated the presence of DNA from at least two males. As part of her testimony, Colombo relied on a chart she created in connection with her analysis, which was presented to the jury. There was a primary source, “of which [the defendant] was excluded,” and a secondary source, about which “no conclusion could be made.” Colombo went on to explain:

“And the secondary source, the fourteen observed at the DYS nineteen is consistent with the standard of [the defendant]. At the three eighty-nine one region, just by a coincidence, [the defendant] has the same type that was observed in the evidence sample, and it could be that that type is present and it's being masked by the primary source.

“There was no type determined or found at the three eighty-nine two region, so we can't draw a conclusion at this region between the standard of [the defendant] and the evidence item.

“And then, at the DYS three ninety region, [the defendant] is a twenty-four. We obtained just a twenty-one at that region for the evidence. There is no twenty-four present. However, we know that sometimes with these systems we may lose types. So, I—I'm not saying that we did in this case, I'm just saying that we can't make that determination about the secondary source, we can't make any conclusion about the secondary source.” (Emphases added.)

The prosecutor then asked, “So, is the bottom line, as far as the secondary source goes, that your analysis is not able to include him as a donor of seminal material to the underwear nor exclude him?” Colombo answered, “That's correct.”

During cross-examination of the complainant, defense counsel impeached her testimony, challenging her memory of the events of September 13 and her relationship with the defendant, and questioning why it had taken so long for her to report the rape. The defendant has maintained his innocence throughout these proceedings. He testified that he did not see the complainant on the day in question, and he denied any sexual contact between himself and the complainant.

2. Discussion. The defendant argues that he is entitled to a new trial based on (1) the newly available DNA evidence, excluding him as the source of any of the DNA residue on the complainant's underwear; (2) ineffective assistance of counsel; and (3) the admission of false evidence in violation of his Federal and State due process rights. When reviewing a lower court's ruling on a motion for a new trial, we “examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. DiBenedetto, 458 Mass. 657, 664, 941 N.E.2d 580 (2011)

, quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). See Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). “Judges are to apply the standards set out in Mass. R.Crim. P. 30(b)

rigorously,” and “grant such a motion only if it appears that justice may not have been done” (quotations and citations omitted). Commonwealth v. Fanelli, 412 Mass. 497, 504, 590 N.E.2d 186 (1992). Where, as in the present appeal, the motion judge “did not preside at trial, we regard ourselves in as good a position as the motion judge to assess the trial record” (quotation and citation omitted). Commonwealth v. Raymond, 450 Mass. 729, 733, 881 N.E.2d 144 (2008).

In order to prevail on a motion for a new trial on the basis of newly discovered evidence, a defendant must meet the two-prong test set out in Grace, 397 Mass. at 305–306, 491 N.E.2d 246

. First, the defendant must establish that the evidence is “newly available” or “newly discovered.”⁴

Commonwealth v. Cintron, 435 Mass. 509, 516, 759 N.E.2d 700 (2001). Grace, supra at 305, 491 N.E.2d 246. Second, the defendant must show that the evidence “casts real doubt on the justice of the conviction.” Grace, supra. To show that newly available evidence “casts real doubt on the justice of the conviction,” the defendant must show that “there is a substantial risk that the jury would have

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