Commonwealth v. McNair
| Decision Date | 05 November 2020 |
| Docket Number | No. 19-P-470,19-P-470 |
| Citation | 158 N.E.3d 507,98 Mass.App.Ct. 750 |
| Parties | COMMONWEALTH v. Dwayne MCNAIR. |
| Court | Appeals Court of Massachusetts |
Max Bauer, Boston, for the defendant.
Julianne Campbell, Assistant District Attorney, for the Commonwealth.
Present: Lemire, Singh, & Englander, JJ.
In September 2012 the defendant was charged in connection with the 2004 gunpoint abduction, rape, and robbery of two women in two separate incidents, a week apart, in Boston. Although deoxyribonucleic acid (DNA) evidence linked the defendant to the crimes, it could not distinguish him from his identical twin. In April 2014, on the eve of trial, and over the defendant's speedy trial objection, the Commonwealth nol prossed the case in order to pursue novel DNA testing that could so distinguish.
Several months later, in September 2014, the Commonwealth reindicted the defendant, armed with this new evidence. After lengthy proceedings concerning the admissibility of the novel DNA evidence, a judge of the Superior Court excluded it. A few months later, in August 2017, the defendant moved to dismiss the 2014 indictments on speedy trial grounds. The motion was denied, and in January 2018 the defendant was convicted after a jury trial of eight counts of aggravated rape and two counts of armed robbery. On appeal, he contends that the judge erred in denying his August 2017 motion to dismiss the 2014 indictments, based on his right to a speedy trial. We affirm.
Background. On the night of Tuesday, September 21, 2004, a twenty-three year old medical assistant was walking home near the Arboretum in Boston when she was grabbed and pushed into the back seat of a waiting car. When asked her age, the woman said she was fourteen years old. In response, the defendant said, When she tried to escape from the car at one point, she was hit in the head with a gun. The woman was taken to a garage-type shed where two men took turns raping her. After taking her phone, identification, and other items from her purse, the men dropped the woman off at Franklin Park and told her not to look at them as they drove away or they would come back and kill her. After flagging down a passing motorist, the woman went to a hospital where medical personnel administered a rape kit.1
One week later, on the night of Wednesday, September 29, a nineteen year old college student had nearly arrived at her Mission Hill home in Boston when she was grabbed and pushed into the back seat of a waiting car. When asked her age, the woman said she was fifteen years old. She was beaten in the head with a gun for lying. The woman was taken to Franklin Park. When she tried to run, the woman was punched in the stomach. In a remote wooded area of the park, two men took turns raping the woman. After taking her identification and other items from her wallet, the men instructed her to get down and count. Once she could hear that the men had driven away, the woman ran down a hill to a nearby building, where a security guard answered the door. A 911 call was made, and she was taken to a hospital where medical personnel administered a rape kit.
After interviewing both victims, detectives within the Sexual Assault Unit of the Boston Police Department suspected the two incidents were connected. The detectives attempted to locate the shed in which the first assault had taken place by calculating the distance likely traveled from the point of abduction and searching within the entire circumference. They attempted to locate the suspects by tracking the phone that had been taken from the victim. The detectives knocked on doors, canvassing the area for possible witnesses, and viewed surveillance videos from area businesses to see if one of them might have captured the abductions. Based on descriptions given by the victims, the police obtained an artist's rendering of the suspects and released the sketches to the public. Although the police were able to develop DNA profiles from specimens recovered from both rape kits, they had no suspects from which to conduct comparative analysis.
After several years, police investigation focused on the defendant. They learned that in 2004 the defendant had been living with his mother, who had a garage-type shed on her property. Police followed the defendant to his place of employment. He drove the same car that was registered to him in 2004 and which matched the appearance of the car used in both assaults. After watching the defendant smoke a cigarette outside, police recovered the discarded cigarette. They were able to obtain a DNA sample from the cigarette and compare it to the rape kits from the two victims. It was a match. After learning that the defendant had a twin brother, police sought and obtained authority to collect a DNA sample from the twin and compared it to the rape kits. It was a match as well -- the twins were identical.2
The inability to distinguish between the twins stalled the investigation until police got a "CODIS hit" for the possible second assailant, Anwar Thomas, in July 2010.3 Thomas's DNA matched the samples from both rape kits, and he was subsequently indicted in connection with the 2004 crimes and faced multiple life felonies as a result. In late 2012, as trial approached, Thomas sought a plea deal. He agreed to testify against the defendant in exchange for a lesser sentence. Thomas had gone to high school with the defendant as well as his twin brother and could tell them apart.
A criminal complaint issued against the defendant in September 2012, and with the aid of Thomas's grand jury testimony, the defendant was indicted in November 2012; he was detained on high bail. Two weeks before the scheduled trial date in April 2014, the Commonwealth moved for a twelve-week continuance in order to pursue a recently announced DNA test that promised to be able to distinguish between identical twins by examining genetic mutations. The defendant opposed, asserting his speedy trial rights. The judge (first judge) denied the continuance, commenting that the likelihood of the new DNA evidence passing the gatekeeper hearing4 in order to be admitted at trial was "really very, very small."
The Commonwealth indicated its intention to reindict. The defendant was released from custody.
Some four months later, in September 2014, the defendant was reindicted on eight counts of aggravated rape and two counts of armed robbery5 based on the newly obtained DNA evidence, which inculpated the defendant and exculpated his twin. The defendant was again held in custody on high bail. The defendant moved to exclude the new DNA evidence after a lengthy period of discovery. Following a week-long evidentiary hearing, a second judge (trial judge) found that the new DNA testing and analysis "were based on generally accepted, valid scientific or statistical principles ... and were unshaken by defense testimony." Acknowledging that additional indicia of reliability had not been established, however, the judge allowed the defendant's motion to exclude the evidence due to the potential for jury confusion.6
The defendant subsequently moved to dismiss the indictments on speedy trial grounds in August 2017, and the motion was denied. The defendant proceeded to trial in January 2018, where his defense was that the crimes were not committed by him but rather by his identical twin brother.7 After a week-long jury trial, the defendant was convicted on all charges.
Discussion. The sole issue on appeal is whether the trial judge erred in denying the defendant's motion to dismiss based on violation of his constitutional right to a speedy trial. Commonwealth v. Dirico, 480 Mass. 491, 505, 111 N.E.3d 1062 (2018), citing Commonwealth v. Butler, 464 Mass. 706, 709 n.5, 985 N.E.2d 377 (2013). "Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay." Commonwealth v. Wallace, 472 Mass. 56, 60, 32 N.E.3d 1223 (2015), quoting Doggett v. United States, 505 U.S. 647, 651-652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).
Once that threshold has been met, the court engages in the balancing test articulated in Barker v. Wingo, 407 U.S. 514, 530-532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether a violation has occurred. See Dirico, 480 Mass. at 506, 111 N.E.3d 1062. "The burden is on the defendant to demonstrate prejudicial delay sufficient to warrant dismissal of the indictments against him." Id. at 505, 111 N.E.3d 1062, citing Commonwealth v. Gilbert, 366 Mass. 18, 22, 314 N.E.2d 111 (1974). On review of a denial of a motion to dismiss based on a speedy trial violation, "we give deference to the findings of the motion judge, but we may reach our own conclusions." Wallace, 472 Mass....
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