62 N.E.3d 86
Mass. App. Ct.2016Background
- In April 2002 the defendant, Alexander Mattei, and three other inmates on work release were working at an elderly/disabled housing complex; a resident was violently assaulted in her apartment and treated for facial trauma and eye injuries.
- DNA testing was performed by analyst Stacey Edward; later analyst Brian Cunningham (a substitute witness who began employment at the lab one month after Edward performed testing) reviewed Edward’s work and testified at trial to his independent conclusions about mixed DNA from the defendant’s sweatpants and the victim’s interior doorknob.
- Defense sought to cross-examine police about failure to investigate other workers’ criminal histories to show investigative inadequacies and shift suspicion from Mattei to other potential suspects.
- Defense requested a Bowden instruction (permitting the jury to consider police investigation inadequacies as bearing on guilt); the judge refused but allowed extensive testimony and argument about investigative failings.
- In closing, the prosecutor made contested statements (inferences about motive, characterization of evidence as “overwhelming,” and an apparent misstatement about the timing of a lab contamination); the judge instructed jurors that arguments are not evidence.
- The defendant was convicted of assault with intent to rape and assault and battery; he appealed raising four principal challenges relating to the substitute DNA analyst, limits on cumulative cross-examination, refusal to give a Bowden instruction, and prosecutor’s closing remarks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of substitute DNA analyst testimony | Commonwealth: substitute analyst may testify to own opinion after reviewing original testing | Mattei: Cunningham didn’t perform tests, wasn’t employed at time of testing, and reached conclusions conflicting with original analyst — Confrontation Clause violation | Admission proper: Cunningham reviewed Edward’s data, conducted independent evaluation, was familiar with lab protocols, and defendant had meaningful cross-examination opportunity |
| Limitation on cross-examining police about other workers’ records | Commonwealth: limiting further questioning avoided cumulative, speculative, prejudicial testimony | Mattei: needed to expose investigative inadequacies; Higginbottom’s testimony was relevant | No abuse of discretion: lead investigator Heseltine testified that knowledge of other records would have changed investigation; further Higginbottom questioning would have been cumulative |
| Refusal to give Bowden instruction | Mattei: Bowden instruction needed because defense theory relied on police investigatory inadequacy | Commonwealth: judge need not give Bowden instruction if issue remains for jury | No reversible error: judge did not remove issue from jury and allowed testimony and argument about investigation failures; Bowden instruction not required |
| Prosecutor’s closing argument conduct | Mattei: prosecutor appealed to sympathy, speculated, shifted burden, opined on strength of case, and misstated evidence | Commonwealth: arguments were reasonable inferences and responsive to defense closing; misstatement unintentional and not material | No miscarriage of justice: challenged statements were permissible inferences or responses to defense, jury instructed that arguments are not evidence, misstatement immaterial |
Key Cases Cited
- Commonwealth v. Nardi, 452 Mass. 379 (2008) (substitute expert may testify to opinion based on another analyst’s work)
- Commonwealth v. Barbosa, 457 Mass. 773 (2010) (DNA techniques reliable; substitute testimony permitted when expert conducts independent review)
- Commonwealth v. Grady, 474 Mass. 715 (2016) (substitute analyst may testify after review of underlying data)
- Commonwealth v. Tassone, 468 Mass. 391 (2014) (distinguishes situation where testifying expert lacked employment or personal knowledge of lab protocols)
- Commonwealth v. Jones, 472 Mass. 707 (2015) (testifying analyst must independently evaluate nontestifying analyst’s data before giving opinion)
- Commonwealth v. Greineder, 464 Mass. 580 (2013) (standards for admissibility of DNA-based opinions and limits of confrontation challenge)
- Commonwealth v. Bowden, 379 Mass. 472 (1979) (judge may not remove issue of flawed police investigation from jury; instruction discretionary)
- Commonwealth v. Reynolds, 429 Mass. 388 (1999) (defendant entitled to expose inadequacies in police investigation)
- Commonwealth v. Bresilla, 470 Mass. 422 (2015) (scope of proper closing argument; instructions can mitigate potential prejudice)