|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Rocha.
Present: Duffly, Kantrowitz, & Cohen, JJ.
Indictment found and returned in the Superior Court
Department on
The case was tried before Thomas J. Curley, Jr., J.
John M. Updegraph
for the defendant.
Joseph A. Pieropan, Assistant District Attorney, for
the Commonwealth.
DUFFLY, J.
A Superior Court jury convicted the defendant
of raping his twenty-one year old, mentally retarded and autistic sister. On
his appeal from his conviction of rape, the defendant contends that the trial
judge erred (1) in admitting expert evidence, derived from the results of
deoxyribonucleic acid (DNA) paternity tests, that placed the defendant's
probability of paternity at 99.7 percent; and (2) in refusing to instruct
the jury that probability of paternity evidence may not be considered evidence
of intercourse. We affirm the conviction.
Background. The defendant was charged with rape after
it was discovered the victim was pregnant and DNA tests performed on fetal tissue[1] failed to exclude the defendant as a
possible genetic father. The victim could not give valid consent to intercourse
since, as stipulated by the parties and apparent from the evidence, she was
"a severely mentally retarded woman who was and remains incompetent to
make decisions on her own." The Commonwealth's evidence was that only two
men had had the opportunity to impregnate her, the defendant and the victim's
father (also the father of the defendant). The DNA test results excluded the
victim's father.
During the summer of 1996, the victim lived at
home with her mother, father, and the defendant, a high school student who
would enter his junior year in the fall. She was "non-verbal," with
the capacity to use only a few simple words to communicate and the mental capabilities of a very young child. That summer, the victim
received services from three female workers provided by Berkshire Family and
Individual Resources (BFAIR). During the weekday, a BFAIR worker picked the victim up from her home or other
prearranged location and would participate with her in activities within the
community that included going to the mall, softball games at the park, the
movies, or swimming. Due to the victim's limitations, services were provided to
her on a one-to-one basis and the workers were directed to keep her under
constant supervision. The three women from BFAIR who
provided services to the victim each testified that the victim was never out of
sight of any worker and that she was never left alone with any other person.[2] The BFAIR
workers returned the victim to her family at 4:00 or 4:30 P.M. following the
outings, most days bringing the victim to her mother's workplace. A worker
recalled only one day that she had brought the victim to the house and had
delivered her to the defendant.
The victim's mother, testifying on behalf of
the defense, described the victim's cognitive and other limitations resulting
from mental retardation and autism. The victim weighed 176 pounds and was five
feet, two inches tall; she was physically strong and could become combative if
"somebody tried to get her to do something" (inferably, something she
did not want to do).[3] She trusted her family members, including the
defendant, and displayed her affection by hugging them. The mother was largely
responsible for the victim's hygiene and dressed and undressed the victim
daily, including changing the diaper-type underpants that the victim wore to
bed at night. The victim's mother observed no bruises or other marks on the
victim during July and August, 1996. She testified that she and her husband,
the defendant, and the three BFAIR workers were the
only ones who had had direct contact with the victim during this period.
Both the defendant and his mother testified that, other than during a six-week
period that summer when the mother attended a class, the defendant was never
alone with the victim. The mother testified that the victim's bedroom was
located upstairs near the parents' master bedroom and that the defendant's
bedroom was downstairs, suggesting that the mother would have known if the
defendant had entered the victim's room at night. The defendant denied having
sexual intercourse with his sister. He testified that he had rarely been home during
the summer of 1996, because he had held two jobs and had worked sixty to eighty
hours per week. From the beginning of July to the middle of August, 1996,
however, the defendant stayed home alone with the victim for a short time
("ten minutes," according to the mother), during two days of each
week after the mother left for her class and before the victim's father
returned from work.
When a November, 1996, visit to the victim's
gynecologist revealed that the victim was pregnant, the State police were alerted.
Due to the victim's limitations, she was unable to communicate the
circumstances attending her pregnancy, including the identity of the person who
had intercourse with her.
A judge of the Probate and Family Court appointed guardians ad litem for the victim and the fetus. Pursuant to a court
order that issued in that court following a hearing, the victim's pregnancy was
terminated in December, 1996. Dr. Laurent Delli-Bovi,
who performed the abortion, testified that the victim's hymen was not intact
and that this was consistent with her having experienced sexual intercourse;
that measurement of the fetal foot indicated the date of conception to be July
30, 1996; and that the date of the victim's last menstrual period[4]
was consistent with a July 30 date of conception. Tissue samples from the fetus
and blood samples from the victim were preserved, packaged and sent to
Laboratory Corporation of
According to Dr. Lloyd Osborne of LabCorp, an expert (in areas of immunology, human genetics
and statistics) testifying on behalf of the Commonwealth, the DNA paternity
test results excluded the victim's father as a possible genetic father of the
fetus,[6] but did not exclude the defendant. Dr. Osborne further
testified that, based on a statistical analysis of the test results, the
defendant's probability of paternity was 99.7 percent.[7]
Dr. Pravatchai Boonlayangoor, the defendant's expert (in areas of medical
microbiology, molecular biology, and immunogenetics),
agreed that the DNA test results excluded the victim's father as a contributor
of DNA to the fetus. He adjusted the defendant's probability of paternity
statistic to 98.3 percent, on the basis of his assessment that because the
victim, the defendant, and the victim's father all shared the same genetic
markers on two of the nine DNA systems tested, these two systems should have
been discounted.[8]
Discussion. 1.
Probability of paternity evidence. Dr. Osborne's testimony as to the 99.7
percent probability of paternity statistic was admitted over the defendant's
objection. The only ground asserted at trial was that the evidence assumed a fact
not in evidence, intercourse, and could not be admitted in the absence of
independent evidence that the defendant had intercourse with the victim. He now
argues, in addition, that the trial judge erred in admitting the probability of
paternity evidence because such evidence infringes on the jury function to
determine guilt beyond a reasonable doubt. The defendant does not argue that
the statistical methodology employed in deriving the probability of paternity
evidence was unreliable, nor could he do so.[9]
We first address the issue that was raised below.
"In weighing the probative value of evidence against any prejudicial
effect it might have on a jury, we afford trial judges great latitude and
discretion, and we uphold a judge's decision in this area unless it is palpably
wrong." Commonwealth v. Sicari, 434
The evidence tending to establish that the
defendant was the genetic father of the fetus was relevant to the determination
whether the defendant had intercourse with the victim. See, e.g., Commonwealth
v. Sicari, supra at 750-751 (semen found on back of
car seat was relevant to issue at trial regarding extent of defendant's
participation in the actual killing of victim: "Semen is no different from
fingerprints, hair follicles, or blood in its utility for this purpose. Such
evidence connects him with the place, which in turn connects him to the crime
that occurred there"). When a woman is pregnant, and
there is no suggestion that she became pregnant through artificial
insemination, that is evidence of her having had intercourse. The
evidence of DNA testing of fetal tissue samples, like DNA tests performed on
semen found in a victim's vagina, is evidence of the defendant's participation
in the crime and is relevant.
We now consider whether the evidence, although
probative, is unduly prejudicial. That concern was addressed in Commonwealth v.
Beausoleil, 397
In decisions since Beausoleil,
our appellate courts have upheld the admission in evidence of DNA test results
and related statistical analyses to establish a defendant's presence at the
scene of a crime. In Commonwealth v. McNickles, 434
Mass. 839, 847-848 (2001), the court held that it was not an abuse of
discretion to admit testimony of the Commonwealth's expert analyzing data using
a statistical measure known as a "likelihood ratio," which
"compares the probability that the defendant was a contributor to the
sample with the probability that he was not a contributor to the sample."
There, the vaginal swab obtained from the victim contained DNA from more than
one person. Because testing does not always result in completely separating the
DNA of the victim from that of the contributor of semen, the sample portion
referred to as the "male fraction" may contain some of the victim's
DNA. The testing suggested, but did not confirm, the presence of the victim's
DNA in the mixed sample. The expert, testifying to the likelihood that the
defendant was a contributor to the vaginal swab specimen, had to take into
account the uncertainty as to whether it was the victim's DNA that was, or was
not, in the mixed sample. He testified that, assuming that the victim was a
contributor to the mixed sample, it was 37,000 times more likely that the
defendant was a contributor than that an unknown person was a contributor;
assuming that the victim was not a contributor, it was 220 times more likely
that the defendant was a contributor than that he was not.
Here, "[t]he calculations on which the
probability determinations were based were explained in detail." Commonwealth v. Gomes, 403
We next consider the unpreserved claim that
admission of the evidence relieved the Commonwealth of its burden of producing
evidence of guilt and of persuading the jury of the guilt beyond a reasonable
doubt. We need not decide whether the argument raises an issue of
constitutional dimension, although it does not appear to do so. Our standard of
review, under either view, is whether admission of the evidence created a
substantial risk of a miscarriage of justice. Commonwealth v.
Rivera, 425
The additional evidence pointing to the
defendant as the person who had had intercourse with the victim was compelling.
The jury could have found that on or about July 30, 1996, the victim became
pregnant as the result of sexual intercourse that occurred against her will;
that the victim's hymen was not intact, from which it could be inferred that
she had engaged in intercourse; that only two men were identified as having had
the opportunity during this time period to engage in sexual intercourse with
the victim -- the victim's father and the defendant; and that DNA test results
excluded the victim's father as a contributor of DNA. This was sufficient other
evidence to permit the jury to find beyond a reasonable doubt that the
defendant had had sexual intercourse with the victim. See, e.g., Commonwealth
v. Fowler, 425 Mass. 819, 828 n.20 (1997) (not prejudicial error to allow
Commonwealth's expert to testify that of the only four men who had contact with
victim in the days preceding her death, DNA tests of semen in victim's mouth
eliminated all but defendant as source of semen); Commonwealth v. Fowler, 431
Mass. 30, 33-34 (2000) (DNA obtained from swab of murder victim's mouth;
presence of sperm in mouth of victim "was enough evidence to warrant the
inference beyond a reasonable doubt that the victim had been penetrated
orally").
In addition, through direct and cross-examination of the experts and the
judge's instructions, the jury were informed that the probability of paternity
statistic did not rely on evidence of intercourse, but assumed for purposes of
the mathematical calculation that the defendant was equally likely to be the
father as not to be the father.[13]
There was no erroneous admission of evidence. Even if there had been error, our
analysis permits the conclusion that the risk was not substantial and that a
miscarriage of justice did not occur.
2. Jury instruction. The trial judge also did not err in denying the
defendant's request to instruct the jury that the probability estimate could
not be used as evidence that the defendant had had intercourse with the victim.
The trial judge instructed the jury that they were free to reject or accept the
opinions of the experts, and that they were to consider the soundness of the
reasons underlying the experts' opinions. They were specifically instructed: "if
you choose to accept, in whole or in part, the test results and the probability
of paternity, you are not to substitute any probability of paternity for the
standard of proof beyond a reasonable doubt which I will soon explain to you.
No mathematical probability can relieve you of your obligation to make that
determination based on all of the evidence presented to you." As the court observed in Commonwealth v. Rosier, 425
In support of his claim, the defendant directs us to the court's margin comment
in Commonwealth v. Beausoleil, 397 Mass. at 220 n.18,
where it is suggested that "the judge should instruct the jury, if . . .
so requested, that they may not consider HLA test
results as evidence of intercourse, and that they may not consider such
evidence of paternity unless they have found, beyond a reasonable doubt, that
sexual intercourse at or about the time of conception had taken place between
the mother and the alleged father." In light of subsequent decisions of
the
In any event, as we have noted, the Commonwealth presented strong evidence,
independent of the DNA evidence, that the defendant engaged in sexual
intercourse with the victim. The Commonwealth, in its summation, did not focus
on the probability of paternity evidence. The judge appropriately instructed
that the jury evaluate the soundness of the technical principles underlying the
expert testimony and that they were not to substitute the probability of
paternity for the standard of proof beyond a reasonable doubt. Thus, any error
on the part of the judge in declining to give the requested instruction was
harmless.
Judgment affirmed.
FOOTNOTES:
[1] The pregnancy was terminated.
[2] One BFAIR worker
recalled two instances at the BFAIR offices that she
allowed the victim to remain in an office with the director and secretary while
the worker used the bathroom across the hall. Another testified on
cross-examination that, on occasion, she took the victim to the worker's home
that she shared with her boyfriend; there is no evidence that she ever left the
victim alone with the boyfriend.
[3] Indeed, Dr. Laurent Delli-Bovi,
the victim's gynecologist, testified that when the victim was brought to her
office for an ultrasound to determine how far her pregnancy had progressed, the
procedure took a very long time and was difficult because the victim did not
understand what was happening to her. The mother, the doctor, and a nurse had
to "work very hard" to get the victim to lie down on the examining
table and keep her distracted so that the examination, which was not painful,
could be conducted.
[4] A BFAIR worker
testified that the victim had her period on
[5] The defendant and the victim's father were
ordered to submit to the taking of blood samples. See In the Matter of a Grand
Jury Investigation, 427 Mass. 221, 226, cert. denied sub nom. A.R. v. Massachusetts, 525 U.S. 873 (1998) ("There is
reason to believe [it may even be more likely than not] that either the father
or the brother caused the pregnancy. Proper testing certainly will exclude one,
and could exclude both, from the grand jury's continuing interest. The test
results, no matter what they are, will be a significant aid in the grand jury's
inquiry").
[6] A description of the scientific methodology
underlying paternity tests that establish "the impossibility of the accused's paternity . . . to a medical
certainty" is contained in Commonwealth v. Beausoleil,
397 Mass. 206, 209-210 (1986).
[7] Dr. Osborne also
described a second statistic relevant to determining paternity: the paternity
index. The paternity index compares the likelihood that an alleged father could
produce a child having the same genetic markers as the tested child with the
likelihood that a random man could produce the same genetic markers as the
tested child. The random man's likelihood of paternity statistic is derived
from gene frequency tables based on sample populations.
Dr. Osborne described the use of Bayes' Theorem to calculate the probability of paternity,
based on the paternity index data. He testified that the 99.7 percent
probability statistic was based on what he termed to be a neutral prior
probability of .5 -- that is, that the defendant was fifty percent as likely to
be the father as unlikely to be the father, not knowing anything further. He
agreed, on cross-examination, that additional information could be incorporated
to alter the probability statistic.
According to the evidence at trial, the probability of paternity statistic
is applied to paternity test results which do not exclude the alleged father
regardless whether the tests are based on human leukocyte antigen (HLA) or DNA.
[8] Dr. Boonlayangoor
testified that because "the mother, child, and the alleged father, all . . . have the same marker[s]" on
the two systems (identified as the VWF and D5S18
systems), it could not be ascertained which marker was contributed by the
father and which by the mother. He concluded that in these circumstances, the
paternity index assessment with respect to each system (3.22 for the VWF, 1.79 for the D5S18) should be replaced with a factor
of 1.0. Recalculating the paternity index based on these assumptions, the
expert testified that the combined paternity index would be fifty-eight to one,
or almost six times less than Dr. Osborne's result of 334 to one.
[9] The defendant did not request a voir dire to challenge the reliability of the process
underlying the Commonwealth's expert testimony.
[10] The Commonwealth's criminal complaint in Beausoleil was based on G. L. c. 273, § 12
(begetting an illegitimate child), now repealed.
[11] As described by
Dr. Boonlayangoor, the HLA
test uses the "ABO" blood group and the
genetic makeup of white blood cell antigens to analyze forensic samples,
whereas the DNA test looks at the genetic makeup of humans at the molecular
level. HLA testing continues to be used in order to
match tissue for transplantation. The primary drawback in HLA
testing is that it requires fresh samples, whereas "the DNA structure in
the cell is stable for a number of months and years" if collected and
preserved properly.
[12] Dr. Boonlayangoor
testified that the percent of probability of paternity "could be deceptive
and misleading," because it starts from a fifty percent prior probability
and not from a one percent prior probability. "We presume immediately he
is fifty percent, he is fifty percent [likely] to be the father. So it [is] deceptive from the beginning."
[13] We do not suggest that testimony regarding Bayes' Theorem and the prior odds of .5 employed in this
case would be admissible on facts other than those present here. See, e.g.,
Peterson, A Few Things You Should Know About Paternity Tests (But Were Afraid
to Ask), 22 Santa Clara L. Rev. 667, 685 (1982); Kaye, The Probability of an
Ultimate Issue: The Strange Case of Paternity Testing, 75 Iowa L. Rev. 75,
93-94 (1989). Here, the assumptions employed by the Commonwealth's expert to
arrive at the probability of paternity statistic are consistent with the
evidence in this case -- that the defendant was one of only two men who might
have been the father.