Commonwealth v. Scott

• Citation: 470 Mass. 320,21 N.E.3d 954
• Decision Date: 26 December 2014
• Docket Number: SJC–11303.
• Parties: COMMONWEALTH, v. Robert SCOTT.
• Court: United States State Supreme Judicial Court of Massachusetts

470 Mass. 320

21 N.E.3d 954

COMMONWEALTH

v.Robert SCOTT.¹

SJC–11303.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 5, 2014.

Decided Dec. 26, 2014.

Ruth Greenberg for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

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

Opinion

LENK

, J.

In December, 1984, a young woman was found dead, her body badly beaten, in a vacant lot in Boston. Twenty-three years later, deoxyribonucleic acid (DNA) was extracted from samples taken from the victim's body and clothing soon after her death and run through a national computerized database. A match was found with the defendant's DNA. The defendant was tried for murder in the first degree. His defense at trial was that he had had consensual sex with the victim but had not been the killer. The jury returned a verdict of guilty on theories of premeditation, extreme atrocity or cruelty, and felony-murder. The defendant appeals from his conviction.

The defendant claims that the evidence was insufficient to support the verdict, and that other errors in the proceedings require a new trial. These include the judge's exclusion of evidence purported, by the defendant, to show that police had investigated the case inadequately or that the crime might have been committed by a third party; the prosecutor's remarks, in his closing argument, that there had been no evidence that the victim had engaged in “risky behavior”; and the judge's instruction to the jury, after one original juror had been discharged, that an alternate juror should get “up to speed” about a question that had been posed by the jury and answered by the judge.

Having reviewed the entire record pursuant to G.L. c. 278, § 33E

, we discern no error requiring reversal, and no cause to exercise our authority to reduce the defendant's conviction to a lesser degree of guilt or to order a new trial.

1. Facts. We summarize the facts the jury could have found, reserving certain details for later discussion.

In December, 1984, the victim's body was found by a passerby in a vacant lot in Boston. She was eighteen years old. An autopsy revealed that the victim had suffered multiple blunt impact injuries to her head

, fractures to her skull, lacerations and contusions to her face, and fractured and loosened teeth. A sock had been tied as a ligature around the victim's neck. She had been alive when her injuries were inflicted.

Although the victim was identified, the case remained unsolved for many years. After being contacted by the victim's sister in 2006, the Boston police department reopened the case. Police reexamined evidence collected in the original investigation, including

the victim's clothing and vaginal and anal swabs taken from her body at the autopsy.

The vaginal and anal swabs, as well as a stain from the victim's skirt, were found to contain sperm cells. DNA testing was performed on those cells, and the DNA pattern found in the cells was run through a national database.² The database returned a match with the defendant's DNA. The likelihood that the DNA pattern shared by the defendant and by the tested samples would be found in a random individual was one in at least 430 million.

The evidence reexamined by police also included a pair of underwear found on the ground about five or six feet away from the victim's body. DNA matching the victim's DNA was found on the underwear. No sperm cells were detected on them.

The defendant was living and working in Boston at the time of the victim's death. By 2008, when the case was again being investigated, he was living in Atlanta, Georgia. Boston police detectives traveled to Atlanta in late 2008 to arrest the defendant. After he was arrested and brought back to Boston, the defendant said to a detective, “I have to face the music now.”³

At trial, the theory of the defense was that the defendant had had consensual sex with the victim prior to her death, but that he was not her killer. The defendant sought to introduce evidence suggesting that the victim might have been killed by third parties or that the police investigation had been lacking. As discussed in detail infra, the judge excluded much, though not all, of this evidence.

The victim's sister and the victim's friend and former neighbor testified that they had never heard of the defendant and that the victim had never been with older men or with men who did not speak Spanish.

⁴ The victim's sister also testified that the victim had been at home during the nights of the week of Christmas, 1984, including the night before the victim was killed; and that, on the day of the killing, the victim had left home early in the morning and had worked until 6 p.m .

A police criminologist, Kevin Kosiorek, opined that the sperm found in the victim's body had been deposited there around the time of her death and at the location where she was discovered. This opinion was based, in part, on the fact that no sperm cells were detected on the victim's underwear; according to Kosiorek, “if somebody is up walking around, ... semen would be draining out of her and would be on the underwear if she were wearing it....” Kosiorek also stated that the pattern of stains found on the victim's skirt was “consistent with drainage if a person were laying [sic ] horizontal[ly].”

Kosiorek provided the opinion that sperm “heads,” which were identified in this case, are usually detectible only within “a day or maybe a little more” after sexual intercourse. In addition, while only small quantities of sperm and seminal fluid were collected, Kosiorek explained that the amounts collected are not indicative of the amounts actually deposited, and that the amounts deposited are, in any event, poor indicators of the timing of intercourse.⁵

Soon after being charged, the jury submitted a note to the judge, asking, “[C]ould the defense have independently tested any of the physical evidence?” The judge sent back a note stating, “Whether the defendant could seek his own testing of any physical evidence is not a question that was addressed by the evidence. Because you are to confine your deliberations to the evidence presented at the trial, you should not further consider or discuss that question.”

On the morning after the jury began deliberating, one juror was discharged because she had failed to appear in court.⁶ The discharged juror was replaced by an alternate. As discussed more fully infra, the judge instructed the newly-constituted jury that they were to “start [their] deliberations all over again.” The judge also stated that the question posed by the jury on the previous day “should be shared with our new juror as well so he is up to speed

on communications that our deliberating jury has had with the court.”

On the afternoon of the same day, the jury returned a guilty verdict, convicting the defendant of all three theories of murder in the first degree.

2. Sufficiency of the evidence. The defendant argues that the evidence at trial was insufficient to support the verdict. He asserts that, although ample evidence demonstrated that he had had sexual relations with the victim, there was no evidence connecting him to her death.

Our inquiry is “whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Woods, 466 Mass. 707, 712–713, 1 N.E.3d 762 (2014)

, citing Commonwealth v. Latimore, 378 Mass. 671, 677–678, 393 N.E.2d 370 (1979). “[T]he evidence and the inferences permitted to be drawn therefrom must be ‘of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.’ ” Commonwealth v. Latimore, supra at 677, 393 N.E.2d 370, quoting Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928) (second alteration in original). Circumstantial evidence alone may suffice. Commonwealth v. Woods, supra at 713, 1 N.E.3d 762, citing Commonwealth v. Nolin, 448 Mass. 207, 215, 859 N.E.2d 843 (2007). The evidence in this case satisfies these requirements.

As detailed, the evidence was not limited to the fact that sperm cells matching the defendant's DNA were found in the victim's body and on her clothing. The pattern of sperm on the victim's skirt, and the absence of sperm on the victim's underwear, indicated that the sperm had been deposited around the time of the victim's death and at the location where her body was discovered. The people closest to the victim, namely her sister and her friend and former neighbor, testified that they had never heard of the defendant and that the victim had never been with older men or with men who did not speak Spanish. The victim's sister also testified to the victim's whereabouts on the day of her death and on the preceding nights. All of these pieces of evidence tended to negate the possibility that the defendant had had sex with the victim on some prior occasion unrelated to her death. Finally, the defendant stated to a police officer, after he was arrested, that he had “to face the music now.”

Minds “of ordinary intelligence and sagacity,” Commonwealth v. Cooper, 264 Mass. at 373, 162 N.E. 729

, could find this evidence sufficiently

forceful to establish beyond a reasonable doubt that the defendant had killed the victim deliberately, upon a reflective decision to do so; that the killing involved the infliction of injuries brutal both in number and in severity; and that it was carried out in the course of the felony of aggravated rape. The evidence was therefore sufficient to support the verdict of guilty on all three theories of murder in the first degree.

3. Third-party culprit evidence and Bowden evidence. As stated, the defendant sought to present evidence suggesting, in his view, that the victim might have been killed by third parties, and that the police had conducted an inadequate investigation. The focal point of this evidence was a set of...