Commonwealth v. Jones
| Decision Date | 21 September 2015 |
| Docket Number | SJC–11775. |
| Citation | 472 Mass. 707,37 N.E.3d 589 |
| Parties | COMMONWEALTH v. Clauzell JONES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Kathleen M. O'Connell for the defendant.
Ellyn H. Lazar–Moore, Assistant District Attorney, for the Commonwealth.
Brad A. Compston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
LENK
, J.
The defendant was indicted on charges of rape, in violation of G.L. c. 265, § 22 (b )
, and furnishing alcohol to a minor, in violation of G.L. c. 138, § 34. At trial, the defendant testified both that his sexual contact with the victim did not involve penetration and that it was consensual. To establish the element of penetration necessary to sustain a conviction of rape, the Commonwealth offered, in addition to the victim's testimony, results of deoxyribonucleic acid (DNA) testing that purportedly identified the defendant's saliva on “intimate” swabs taken from the victim's vagina. To prove that the sexual contact was nonconsensual, the Commonwealth offered, among other evidence, testimony concerning the victim's conduct shortly after the alleged rape occurred. The defendant was convicted by a Superior Court jury in May, 2011, on both indictments.
On appeal, the defendant argues that the judge erred in allowing the Commonwealth to introduce, through the testimony of an expert witness who was not present when the victim's “rape kit” examination was performed, evidence concerning how the various swabs that the expert tested were collected. The defendant further contends that the judge violated his right to a public trial by holding, pursuant to G.L. c. 233, § 21B
(rape shield law), an in camera hearing to determine the admissibility of evidence relating to the victim's prior sexual contact with the individual to whom the victim first reported the alleged rape (first complaint witness). Finally, the defendant challenges the judge's decision, also based on the rape shield law, to prohibit defense counsel from introducing evidence regarding the victim's prior sexual relationship with the first complaint witness, and challenges the jury instructions as inconsistent with a decision issued by this court after the defendant's trial.
We hold that the judge erred in permitting the expert to testify about how the various swabs she tested had been collected, and that the preserved error was prejudicial. We therefore vacate the defendant's convictions and remand for a new trial. We further conclude that the judge erred in closing the rape shield hearing
without conducting the four-prong analysis required for court room closures under Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)
(Waller ). Because we are ordering a new trial based on the erroneously admitted expert testimony, we address only briefly the defendant's two remaining arguments.
1. Background. We summarize the evidence presented at trial, with particular focus on the evidence relevant to the defendant's arguments on appeal. We reserve certain substantive and procedural facts for later discussion.
On October 17, 2008, the victim, P.B.,1 then a high school senior, attended a party at the defendant's house in Gardner. Also in attendance were several other high school age friends of the victim: Rachel, Tim, and the defendant's son, Chris.2 The victim and Rachel testified that, shortly after they arrived, they drank some beer, followed by “nips,” small containers of flavored alcoholic beverages. The group then played a game of “strip poker,” although the victim testified that she only took off her sweatshirt and possibly her socks. The defendant provided marijuana, which everyone smoked.
The defendant then offered P.B. and Rachel shots of rum, which they accepted. He served the rum out of wine glasses. Both P.B. and Rachel testified that they saw some type of pink substance in the glasses before they drank.
After drinking the rum, both the victim and Rachel became violently ill. Although the victim had consumed alcohol before, she testified that she had never felt as sick as she did that night. She vomited in the bathroom for approximately ten minutes, and then went limp. The other attendees picked the victim up from the bathroom floor and placed her on a couch in the defendant's bedroom. While she was being carried, her head struck the doorframe.
When the victim awoke, she was lying naked on her stomach on the bed with the defendant behind her. She felt the defendant's fingers in her vagina; she then felt the defendant's penis in her vagina. When she turned over, he jumped out of the bed and announced that he had to go to the bathroom. After the victim put her clothes on, the defendant emerged from the bathroom wearing a robe. The victim said,
The victim entered the living room and climbed onto the couch where Tim was sleeping, placing herself between the couch and
Tim's legs. Tim said, “Nah,” pushed the victim away, and moved to another seat. At that point, the victim said, “[Chris]'s dad just fucked me,” and began to cry. The victim then spent forty-five minutes to one hour making telephone calls and sending text messages, trying to contact someone to pick her up from the defendant's house.
Sometime between 4 and 4:30 a.m. , the victim finally reached a school friend, Alexis. The victim left the defendant's house and went to a nearby twenty-four hour pharmacy. Alexis, in a vehicle driven by her mother, arrived to pick up the victim. They found her sitting on the curb outside the pharmacy, crying.
Alexis's mother urged the victim to go to the hospital. The victim initially declined. Instead, she went into Alexis's room, and the two talked for a while. Another school friend, Ellen, along with Ellen's boy friend, then came to get the victim and drove her to Ellen's house. There, the victim was picked up by her boy friend, Chad, and taken to her house.
That afternoon, Chad took the victim to the hospital. They first went to a hospital in Fitchburg. From there, they were directed to a hospital in Leominster, where a sexual assault nurse examiner (SANE) performed a “rape kit” examination on the victim.
At trial, the defendant, testifying in his own defense, offered a different account of the events of the evening. According to the defendant's testimony, after the victim was laid on his bed (rather than on the couch in his bedroom, as other witnesses testified), the group continued drinking. The defendant then went into his room to watch television. He sat down on the bed next to the victim, who was sleeping and was still fully clothed. After the defendant watched television for fifteen or twenty minutes, the victim woke up. She rolled over and said, “Hey, what's up?” The pair watched television together for about twenty minutes. The victim then invited the defendant to rub her back. He began rubbing her back, and then began touching her buttocks. The victim pressed her buttocks against the defendant's genitals, and removed her pants. The defendant licked his finger, reached around, and “touched her vagina.” The defendant testified that he touched the “top part” of her vagina, that the touch was very brief, that he “felt mostly hair,” and that he did not feel either “the lips of her vagina” or “a wet part of her vagina.”
The defendant then announced that he had to go to the bathroom. When he returned from the bathroom, the victim was on the couch in the living room with Tim. The defendant testified
that he believed that the victim was interested in having sex, and that he too wanted to have sex. He claimed, however, that he never penetrated her vagina, either with his penis or with his finger.
The Commonwealth offered the testimony of two experts that contradicted the defendant's account. The first expert, a chemist at the State police crime laboratory, testified that she performed testing on three swabs purportedly collected from the victim during the “rape kit” examination at the hospital in Leominster: a genital swab, which the expert testified was taken from “the outside of the genital area”; a vaginal swab, which the expert described as “an intimate swab of the vagina”; and a peri-anal swab, which the expert testified was taken “from the outside of the anal area.” The expert indicated that all of the swabs tested negative for semen agellin. The vaginal and genital swabs, however, tested positive for human alpha-amylase, commonly known as saliva.
The second expert was also a chemist at the State police crime laboratory. She testified that she performed DNA analysis on the saliva
recovered from the vaginal and genital swabs. She indicated that the DNA profile obtained from the vaginal swab matched a DNA sample acquired from the defendant. She testified that, based on currently available databases, the DNA profile obtained was “not expected to occur more frequently than 1 in 1,065 Caucasian males, 1 in 936 African–American males, 1 in 561 Hispanic males, and 1 in 198 Asian males.”
After the defendant's convictions on both indictments, he moved for a new trial on the basis of the court room closure during the rape shield hearing. Following an evidentiary hearing, the motion judge, who was also the trial judge, denied the defendant's motion. The defendant appealed from his convictions and from the denial of his motion for a new trial. We granted the defendant's petition for direct appellate review.
2. Discussion. a. Confrontation clause and common-law evidentiary rules. The Commonwealth did not offer at trial the testimony of the nurse at the hospital in Leominster who conducted the “rape kit” examination. Instead, the judge permitted the Commonwealth's first expert witness, who was not present during the examination and had no apparent connection to the hospital at which the swabs were taken, to testify to her “understanding” of how the three...
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