Commonwealth v. Perrot
| Decision Date | 26 January 2016 |
| Docket Number | HDCR85-5418,HDCR85-5416,HDCR85-5420,HDCR85-5415 |
| Parties | Commonwealth v. George D. Perrot Opinion No. 132632 |
| Court | Massachusetts Superior Court |
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL
On December 14, 1987, a jury convicted the defendant, George D Perrot (" Perrot"), of the unarmed robbery of Mary Prekop, Criminal Action No. 85-5415, the indecent assault and battery of Mary Prekop, Criminal Action No. 85-5416, the aggravated rape of Mary Prekop, Criminal Action No. 85-5418 the burglary and assault of Mary Prekop in a dwelling Criminal Action No. 85-5420, and the burglary of Emily Lichwala, Criminal Action No. 85-5425. Perrot appealed his convictions and on June 4, 1990, the Supreme Judicial Court reversed the convictions. Commonwealth v. Perrot 407 Mass. 539, 554 N.E.2d 1205 (1990). On January 9, 1992, a jury convicted Perrot of the same offenses. The Appeals Court denied Perrot's appeal. Commonwealth v. Perrot, 38 Mass.App.Ct. 478, 648 N.E.2d 1315, rev., denied, 420 Mass. 1104, 651 N.E.2d 409 (1995). On April 25, 2000, Perrot filed a Motion for New Trial. On September 11, 2001, the court (Wernick, J.) allowed the motion. On May 12, 2003 the Appeals Court reversed the order allowing the New Trial Motion. Commonwealth v. Perrot, 58 Mass.App.Ct. 1102, 787 N.E.2d 1154 (2003), rev. denied, 441 Mass. 1104, 805 N.E.2d 44 (2004). Perrot filed two more motions for new trials both of which the Appeals Court dismissed for lack of prosecution. On July 8, 2014, Perrot filed his fourth Motion for a New Trial which is now before the court.
After a close review of the assembled record, including transcripts from the defendant's two trials, reviews by the trial court and appellate courts of requests for relief, and the evidence submitted on September 11 and 25, 2015, the court determines that " justice may not have been done" at Perrot's 1992 trial because of the introduction of hair evidence that in numerous and material respects exceeded the foundational science. In making that judgment, the court determines that it was not until decades after Perrot's 1992 trial that errors in testimony on hair evidence came to be authoritatively recognized and addressed. The 2008 National Academy of Science (NAS) report on the limits of hair evidence caused the FBI to audit hair evidence and to determine that Wayne Oakes' testimony at Perrot's 1992 trial contained seven occasions where Oakes exceeded the foundational science.
Based on the findings and rulings, Perrot's Motion for a New Trial is ALLOWED in part and DENIED in part. Specifically, it is ALLOWED as to indictments 85-5415, 85-5416, 85-5418 and 85-5420 and DENIED as to indictment 85-5425.
In the fall of 1985, the Springfield police were investigating a series of house breaks in the Malibu Drive neighborhood. Several of the break-ins involved sexual attacks on elderly women. Perrot, then seventeen years of age, was a suspect in the investigation. Two break-ins occurred on November 30, 1985.
On that date, shortly after 3:00 a.m., Emily Lichwala's (" Lichwala") home at 33 Covel Street was breached. Lichwala awoke to the sound of someone trying to break into her kitchen through a locked door leading to the basement. After a few minutes of silence, Lichwala heard glass shatter near a breezeway door that also led into her kitchen. Lichwala ran outside before encountering the burglar. Her pocketbook had been taken. Lichwala was unable to identify the intruder.
At approximately 4:00 a.m., Mary Prekop's (" Prekop") home at 27 Malibu Drive was breached. Prekop awoke to the sound of her dog barking by the kitchen door and went into her kitchen to investigate. Prekop opened the kitchen door but did not open the door after that which leads to the breezeway. She did not hear or see anything. After sitting in her living room for " a few minutes, " she took a stick and went back to bed. Shortly thereafter, she heard someone come into the house; she took the stick and went to the kitchen to investigate. Prekop encountered the intruder, who pushed her into her bedroom where he struck her, indecently assaulted her, and raped her. Her change purse was taken. Prekop described the man who assaulted her as being clean shaven, with dark wavy hair, and wearing a blue jacket, dark pants, and white sneakers.
A week later, on the evening of December 6, 1985, Perrot drank and took drugs, including cocaine and eight Valium pills. He broke into Joseph McNabb's (" McNabb") house, but ran away when he realized that McNabb and his wife were home. He then stole a woman's purse outside a Denny's restaurant. Around 2:30 a.m. on December 7, 1985, Perrot went to his sister's, Nancy Westcott (" Westcott"), house at 87 Malibu Drive, where he lived, and passed out. A few hours later, the police arrived to arrest him. As he was being escorted to the police cruiser, he tried to escape. He was apprehended hiding in a backyard.
At approximately 4:30 a.m., Sergeant Thomas Kelly (" Sergeant Kelly"), who was in charge of the investigation of the attacks on elderly women, and another officer met with Perrot in an interrogation room. Perrot denied any involvement in the attacks on elderly women. Sergeant Kelly terminated the questioning of Perrot at about 5:30 a.m. to help in the preparation of an affidavit to support an application for a warrant to search Perrot's residence. Perrot at his own request remained in the interrogation room rather than being returned to a cell.
Perrot was interrogated three more times on December 7 by Detective Thomas Jarvis (" Detective Jarvis"), also involved in the investigation of the attacks on elderly women. The interrogations took place at approximately 7:30 a.m., 12:30 p.m., and 3:00 p.m. At the 12:30 p.m. questioning, Perrot signed a form agreeing to furnish the police with blood and hair samples.
Perrot signed a statement admitting to the crimes of the previous evening even though the statement inaccurately identified the purse-snatch as occurring before the break-in.[1]
At the 3:00 p.m. interrogation, Perrot signed a statement admitting to breaking and entering 33 Covel Street and 27 Malibu Drive. Perrot denied any assault. While giving his statement, Perrot became emotional, cried, and asked for Detective Jarvis's gun so he could shoot himself. Detective Jarvis asked that Perrot be placed on a suicide watch.
At 4:30 p.m., Prekop, Lichwala, Mae Marchand, and McNabb came to the police station for a lineup. Perrot had head hair that was on the longer/curlier side and facial hair, including a mustache and a goatee/beard, at the time of the lineup.[2] The lineup consisted of seven men, five of whom were police officers. None of the men in the lineup were clean shaven; all of them had a mustache and Perrot had a mustache and a goatee/beard. Neither Prekop, Lichwala, nor Mae Marchand identified Perrot as their assailant. McNabb positively identified Perrot as his assailant.
During their investigation, the police focused on three pieces of forensic evidence taken from the crime scene at Prekop's house: a bed sheet with blood on it, a pair of gloves with blood on them, and a hair removed from the bed sheet.
On December 2, 1985, a grand jury indicted Perrot for the offenses relating to the November 30, 1985 events.
At the first trial, presided over by Judge Murphy, James Hammerschmith represented Perrot, and Francis Bloom (" Bloom") represented the Commonwealth.
In his opening statement, Bloom focused the jury's attention on the following pieces of evidence: the bed sheet, [3] the gloves, Perrot's admission, [4] and the hair and blood analysis.[5] With respect to the hair analysis, Bloom stated that Wayne Oakes would testify that the two head hairs he analyzed " absolutely are not the head hairs from the head of Miss Prekop, and there are 15 to 25 characteristics in every strand of hair, and . . . every one of those characteristics from those two sample hairs that were found on the bed sheet are identical to every characteristic of the head hair that was pulled from [Perrot]." (Trial Tr. vol. 2, 192.) With respect to the blood analysis, Bloom stated that William Eubanks would testify that the blood on the gloves is consistent with Perrot's blood and that the blood on the bed sheet is " absolutely not [Prekop's], but on every genetic marker and characteristic is consistent with the genetic markers and characteristics [of Perrot]." (Trial Tr. vol. 2, 193-94.)
Prekop testified first for the Commonwealth. She testified that her assailant had his hands over his face, but she saw that he had " wavy hair, black wavy hair, and . . . had white sneakers on." (Trial Tr. vol. 2, 204.) On cross examination, she reiterated that her assailant had black wavy hair and then the following exchange took place:
(Trial Tr. vol. 2, 228-30.)
Prekop also testified that about a week or ten days after the assault, she went to the police station for a lineup. (Trial Tr. vol. 2, 233.) Defense counsel then showed her a picture of a group of people but she was unable to identify it as the group of people she saw that day. (Trial Tr. vol. 2,...
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