Commonwealth v. Tassone

• Decision Date: 16 June 2014
• Docket Number: SJC–11446.
• Citation: 468 Mass. 391,11 N.E.3d 67
• Parties: COMMONWEALTH v. Wayne C. TASSONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

468 Mass. 391

11 N.E.3d 67

COMMONWEALTH

v.Wayne C. TASSONE.

SJC–11446.

Supreme Judicial Court of Massachusetts, Berkshire.

Submitted Feb. 4, 2014.

Decided June 16, 2014.

William W. Adams, Plainfield, for the defendant.

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

Claudia Leis Bolgen, Woburn, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

A Superior Court jury convicted the defendant, Wayne C. Tassone, of unarmed robbery, in violation of G.L. c. 265, § 19 ( b ); and assault and battery, in violation of G.L. c. 265, § 13A ( a ). The issue on appeal is whether an expert witness may offer an opinion that the deoxyribonucleic acid (DNA) profile generated from a known saliva sample of the defendant matched a DNA profile obtained from a swab taken from eyeglasses that were left at the scene of a robbery where the expert had no affiliation with the laboratory that conducted the DNA testing of the eyeglasses swab. We conclude that an opinion regarding the results of DNA testing is admissible only where the defendant has a meaningful opportunity to cross-examine the expert witness about the reliability of the underlying data produced by such testing. Here, the defendant was deprived of a meaningful opportunity for such cross-examination because the analysts who generated the DNA profiles through DNA testing did not testify at trial, and the expert witness who offered the opinion of a match had no affiliation with the laboratory that tested the crime scene sample. Because the defendant preserved his objection to the admission of the expert opinion and its admission was prejudicial, we vacate the defendant's convictions and remand for a new trial.

Background. We summarize the evidence at trial. Robert Brodeur worked as an assistant manager at a small variety store in Pittsfield. On June 22, 2009, at approximately 5:30 p.m., the only customer in the store was a white male, with short blonde hair, wearing a black T-shirt, black shorts, and eyeglasses. The man went to the store counter to purchase juice. When Brodeur opened the door to the cash register, the man tried to reach into the register to take the money; when that failed, he pulled the register away from Brodeur and threw it on the floor. Brodeur jumped over the counter and attempted to push the man out the door, but the man pushed Brodeur to the floor. While Brodeur was on the floor, the man grabbed $350 in cash and fled. When the police responded to the scene, they observed several items on the floor, including a pair of eyeglasses that did not belong to Brodeur.

The defendant worked as a house painter for a company owned by Scott Moore. On the morning of June 22, Moore met the defendant at a credit union in Pittsfield and gave him $300 in cash, along with a ladder and some tools. The defendant was wearing a black shirt and black shorts.

On June 23, the defendant told his then-fiancée, Brenda Streit, that he had been on a “crack” cocaine binge and was entering a local inpatient facility to treat his drug problem. In a subsequent telephone conversation, Streit told the defendant that she was going to the police department to look at a pair of eyeglasses, and the defendant told her that she knew what she had to do. When Streit asked him if he had committed the robbery, the defendant replied, “What do you think?” He told her that he had committed the robbery because of his drug problem.

On June 24, Brodeur was shown a photographic array of eight photographs and picked out the photograph of the defendant as the person who committed the robbery. He initially was eighty per cent sure but, after he “kept looking at it,” said he was “99 per cent sure.”

Both Moore and Streit identified the eyeglasses found at the scene of the robbery as belonging to the defendant, noting that they looked like the defendant's eyeglasses and had paint specks on them. The defendant, however, shared a number of nonprescription eyeglasses with his brother, Nathan Hunt, and Hunt had a pair that looked “just like” the eyeglasses found at the crime scene. Hunt was the same height and body shape as the defendant, and also had a drug problem with both heroin and crack cocaine. Although Hunt was not employed by Moore's company, the defendant brought Hunt to the home whose exterior he was painting to assist with the paint work.

With respect to the DNA testing, a police officer used a buccal swab to obtain a saliva sample from the defendant, which was sent to the State police crime laboratory. At the defendant's trial, no one from the State police crime laboratory testified regarding the analysis of that saliva sample to generate a known DNA profile of the defendant.

Lynne Sarty, a chemist in the State police crime laboratory, took a moistened swab and rubbed it on the areas of the eyeglasses that would likely come into contact with the wearer's skin, such as the sides and the nose piece underneath the lenses. Tiffany Roy, another chemist at the State police crime laboratory, testified that the swab from the eyeglasses was sent to the Cellmark laboratory (Cellmark) in Texas for DNA testing, which generated a DNA profile from the swab, but no one from the Cellmark laboratory testified regarding the actual testing of that swab or the generation of a DNA profile from that swab. Instead, Roy testified on direct examination that she conducted an “independent review” of the DNA profile from the swab and the known DNA profile of the defendant, and concluded that “the DNA profile generated from the known saliva sample from [the defendant] matched the major male [DNA] profile obtained from the swab of the eyeglasses.”

The defendant appealed from his convictions and the Appeals Court affirmed. Commonwealth v. Tassone, 83 Mass.App.Ct. 197, 982 N.E.2d 534 (2013). The Appeals Court concluded that the defendant's challenge to the admissibility of Roy's expert opinion “is controlled in all material respects” by the judgment of the United States Supreme Court in Williams v. Illinois, ––– U.S. ––––, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012) ( Williams ). Tassone, supra at 199, 982 N.E.2d 534. The court stated that, although the plurality's reasoning in Williams might not “be relied upon in circumstances presented in some subsequent confrontation clause cases, where the facts before us are not materially distinguishable from those presented to the Supreme Court in Williams, it must follow from the judgment in that case, which turned on the Court's conclusion that the Cellmark report ... was admissible, that the report here is admissible as well.” Id. We granted the defendant's application for further appellate review.

Discussion. 1. The Williams opinion. In Williams, 132 S.Ct. at 2229, the defendant was accused of abducting, raping, and robbing the alleged victim. The doctors who treated the victim took vaginal swabs for a sexual assault kit; a police detective collected the kit, and sent it to the Illinois State police laboratory. Id. The State police laboratory sent the swabs to Cellmark in Maryland for DNA testing, and Cellmark “sent back a report containing a male DNA profile produced from semen taken from those swabs.” Id. A forensic specialist at the State police laboratory then conducted a computer search to determine if the Cellmark profile matched any entries in the State DNA database. Id. The search revealed a match with a DNA profile produced by the State police laboratory from a sample of the defendant's blood taken after he had been arrested on unrelated charges. Id.

At the bench trial of the defendant in Williams, the prosecutor called a forensic analyst at the State police laboratory, who testified that she developed a DNA profile from a known blood sample of the defendant. Id. The prosecutor did not call as a witness any employee of Cellmark who participated in developing the DNA profile taken from the semen on the vaginal swabs, or who knew the procedures and protocols used by Cellmark in developing a DNA profile. Id. at 2229–2230. Instead, the prosecutor called an expert witness in forensic biology and DNA analysis from the State police laboratory who “admitted she had not seen any of the calibrations or work that Cellmark had done in deducing a male DNA profile from the vaginal swabs,” but trusted Cellmark to do reliable work because it was an accredited laboratory. Id. at 2230. Over objection, this expert testified, based on her comparison of the two DNA profiles, that there was a “match” between the DNA profile found in semen from the vaginal swabs taken from the victim and the known DNA profile of the defendant, and that the probability of a random match was one in 8.7 quadrillion in the black population, one in 390 quadrillion in the white population, and one in 109 quadrillion in the Hispanic population. Id. at 2230, 2236. The Cellmark report was neither admitted in evidence nor shown or read to the judge; moreover, it was not identified as a source of any of the expert's opinions. Id. at 2230.

In considering the admissibility of the expert's testimony, five of the nine Supreme Court Justices concluded in Williams that the judge did not err in admitting this evidence, with the reasoning of the plurality opinion of Justice Alito, joined by three other Justices, differing from that of the concurring opinion authored by Justice Thomas. See id. at 2244; id. at 2252 (Breyer, J., concurring); id. at 2255 (Thomas, J., concurring in the judgment). The plurality opinion concluded that the evidence was admissible on two independent grounds. First, the plurality determined that the expert witness's statement that the DNA profile generated by Cellmark that matched the defendant's profile was “found in semen from the vaginal swabs” was not offered for the truth of the matter asserted. Id. at 2236–2237. Rather, the plurality stated that the expert witness ...