Commonwealth v. Scesny

• Decision Date: 14 July 2015
• Docket Number: SJC–11627.
• Citation: 472 Mass. 185,34 N.E.3d 17
• Parties: COMMONWEALTH v. Alex SCESNY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 185

34 N.E.3d 17

COMMONWEALTH

v.Alex SCESNY.

SJC–11627.

Supreme Judicial Court of Massachusetts, Worcester.

Argued March 6, 2015.

Decided July 14, 2015.

Kenneth I. Seiger for the defendant.

Ellyn H. Lazar–Moore, Assistant District Attorney, for the Commonwealth.

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

Opinion

BOTSFORD, J.

In October of 1996 passersby discovered the body of a woman, Theresa Stone (victim), by the side of a road in Fitchburg. Sixteen years later, in March of 2012, a Worcester County jury convicted the defendant, Alex Scesny, of murder in the first degree and aggravated rape in connection with her death.¹ Before us is the defendant's appeal from these convictions. The defendant argues that (1) the evidence was insufficient to support the convictions; (2) the trial judge erred in admitting opinion testimony of a criminalist employed by the Commonwealth because the witness was not qualified to render the opinion stated; (3) the admission of an autopsy report prepared by a medical examiner who did not testify at trial, and of testimony of a substitute medical examiner, violated the defendant's constitutional right to confront witnesses; (4) it also was error to admit a witness's testimony, based on her examination of a photograph that itself should not have been admitted, that she recognized the defendant as one who had patronized a bar in which the victim was seen on the night of her death; (5) the prosecutor's closing argument was improper, impinging on the defendant's fundamental right to present a defense; and (6) the judge erred in declining to instruct

the jury in accordance with the defendant's proposed instruction on third-party culprit evidence. We conclude that the evidence was insufficient to convict the defendant of aggravated rape, and reverse his conviction of this crime. We affirm the defendant's conviction of murder in the first degree.²

Background. 1. Facts. The defendant challenges the sufficiency of the evidence, and therefore we summarize the facts the jury could have found in the light most favorable to the Commonwealth. Commonwealth v. Earle, 458 Mass. 341, 342, 937 N.E.2d 42 (2010). We reserve certain facts for later discussion in connection with other issues raised.

On October 23, 1996, the victim and her daughter, Nashea Falcon,³ spent the day running errands together and returned in the afternoon to the apartment where they were living in Fitchburg. At approximately 7 P.M. that evening, the victim left the apartment to buy some groceries for dinner. Shortly thereafter, she visited the Brau–Hoff, a bar on Main Street in Fitchburg. She arrived alone, stayed for about an hour or more, and talked to the bartender, Jessie Spencer. The victim left the bar alone and subsequently returned to the apartment with groceries. She told Nashea that she had received a ride home from a man in a black truck who was waiting for her outside, but that she did not want to go with him. Sometime between 9:30 and 10:30 p.m. , the victim left the apartment again and told Nashea she was going to “Work–a–Day,” a temporary employment agency.⁴ That was the last time Nashea saw the victim alive.

On October 25, 1996, responding to a telephone call regarding a body by the side of a road in Fitchburg, the police observed a white female lying on her left side with her face down on the ground, her pants and underwear pulled down to her knees, and her knees, thighs, buttocks, and lower abdominal area exposed.

There was a light coating of leaves over the body, and its lividity appeared consistent with the position in which it was found. Police discovered what appeared to be a condom wrapper underneath or in the vicinity of the body. The body was identified as the victim's through fingerprint analysis. The cause of death was strangulation by ligature. The autopsy revealed that two of the victim's teeth had been broken off, that she had blood in her mouth, and that there were injuries to her eyelids, nose, neck, left shoulder, right clavicular region, right arm, right metacarpal, and right thigh.

During trial, the Commonwealth and the defendant stipulated to the following:

“After [the victim's] body was discovered on Kinsman Road on October 25, 1996, blood samples and vaginal and anal swabs were taken as evidence. This material was sent to the Mass[achusetts] State Police crime [laboratory] for [deoxyribonucleic acid (DNA) ] testing. These tests generated DNA profiles, which were made part of a DNA database. In 2008, for reasons completely unrelated to the investigation of [the victim's] death, [the defendant's] DNA profile was entered into that system. Sometime after that, a link was believed to be established between [the defendant's] DNA profile and biological evidence taken from [the victim]. At a later date, [the defendant] provided another DNA sample for further comparison purposes.”⁵

The rectal swab taken from the victim contained sperm cells, and the DNA profile generated from the sperm matched the DNA profile for the defendant.⁶ The probability of a randomly selected, unrelated individual having a DNA profile matching the major profile obtained from the rectal swab was one in 13.2 quadrillion of the Caucasian population.⁷

Upon examination of the victim's body, a number of small, red-brown stains were noted on the victim's exposed skin and

clothing. A screening test for the presence of blood was performed on stains from the victim's lower pant leg and sneaker, as well as her right hip and right thigh-left knee area. The stains tested positive indicating that blood may be present. The stain on the thigh-knee area was submitted for further testing and a confirmatory test for human blood was also positive.⁸

DNA profiles generated from the stains on the sneaker, hip, and thigh-knee area indicated a mixture of DNA from more than one source. The defendant matched the major profile in the DNA mixture on the hip. The probability of a randomly selected unrelated individual having a DNA profile matching this stain was approximately one in 1.366 billion of the Caucasian population. The defendant also was included as a potential contributor to the DNA mixtures on the sneaker and thigh-knee area. The probability of a randomly selected unrelated individual having contributed DNA to the mixture was approximately one in sixty-one of the Caucasian population for each of these two stains.

Male-specific DNA testing also was performed on three areas of the victim's underwear. In the first area, a partial male DNA profile was generated that matched the defendant's; the probability that a randomly selected individual would match the profile was one in two of the male population. In the second area tested, a partial male DNA profile was generated that did not match the defendant's profile. In the third area tested, no male DNA was found. A screening test for the presence of blood on three red-brown stains found on the underwear was positive.⁹ No seminal fluid was found to be present on the victim's underwear, which suggested that the victim had not pulled up her underwear and pants after the semen in her rectum had been deposited.¹⁰

Some of the red-brown bloodstains¹¹ on the victim's body and clothing appeared to have been deposited at an angle, suggesting that the blood causing the stains had hit the victim's body at an angle and that some type of action or force had been involved. The stains on the victim's skin did not appear to be disturbed, meaning they had been deposited on the body and had dried in the condition in which the investigating police and criminalists found them. The stains' appearance again suggested that the victim had not pulled up her pants after the stains were deposited.¹²

Jessie Spencer worked as a bartender at the Brau–Hoff bar in Fitchburg on the night of October 23, 1996, the night of the victim's disappearance. In 2008, police showed Spencer several photographs and asked her whether she recognized any of the persons depicted in them as customers of the bar. She was shown a photograph of the defendant and was “pretty certain” she recognized him. Over-all, four of the six photographs she was shown were of men she recognized from the bar.

The defense conceded at trial that the defendant had had sexual intercourse with the victim, but argued that the intercourse was consensual. He stressed that the stains on the victim's hip, knee, and sneaker contained a mixture of DNA from more than one person,¹³ and argued that any potential contribution by him to the DNA in the stains was not necessarily blood, but could have been some other bodily substance transferred onto the victim's body during their sexual encounter.

The defendant also presented evidence at trial suggesting that two other men may have been responsible for the victim's death: Everett Carlson and James Webber, who was the victim's former husband and father of Nashea. Both men were excluded as sources

of the sperm on the rectal swab taken from the victim, as well as the DNA mixture in the stains on the victim's sneaker and right thigh-left knee; the major male DNA profile in the stain on the victim's right hip also did not match either man.¹⁴ Webber was excluded as a source of the partial male DNA profile generated from the stains on the first area tested from the victim's underwear, but Carlson was included, meaning his DNA profile matched the partial male DNA profile identified in that area of the underwear.¹⁵ Both Webber and Carlson were excluded as sources of the male DNA detected in the second area tested from the victim's underwear.¹⁶

2. Procedural history. In 2008, the defendant was indicted for the murder and aggravated rape of the victim. As indicated, in March of 2012 a jury convicted the defendant of murder in the first degree on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder; he also was convicted of aggravated rape. The defendant filed a timely appeal of his...