57 Mass. App. Ct. 550 | Mass. App. Ct. | 2003
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 could 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
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
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).
Both the defendant and his mother testified that, other than during a six-week period that summer when the mother at
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
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,
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
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.
“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. Siam, 434 Mass. 732, 752 (2001), cert. denied, 534 U.S. 1142 (2002). Cf. Commonwealth v. Lanigan, 413 Mass. 154, 166 n.13 (1992), S.C., 419 Mass. 15 (1994) (in a rape case, the materiality of paternity test results is “for the trial judge”). We
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 Mass. 206, 217 n.15 (1986), involving criminal proceedings to establish paternity.
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 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. Id. at 847. The court rejected the defendant’s argument that the evidence should not have been admitted because of “the expert’s reliance on unsupported assumptions,” noting that the expert “presented statistical analyses for the full range of possibilities presented by the forensic evidence.” Id. at 848. The court concluded that the judge had not abused her discretion in admitting the analyses, “including an analysis that took into account the strong likelihood that [the victim’s] own DNA was in the sample taken from her vagina.” Id. at 849. Cf. Com
Here, “[t]he calculations on which the probability determinations were based were explained in detail.” Commonwealth v. Gomes, 403 Mass. 258, 275 (1988). During cross-examination of Dr. Osborne and direct examination of Dr. Boonlayangoor, defense counsel elicited the testimony that the probability of paternity estimate assumed a fifty percent likelihood that the defendant engaged in sexual intercourse with the victim; he highlighted the weaknesses of this assumption in his examination of Dr. Boonlayangoor and in closing argument.
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
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.
There was no erroneous admission of evidence. Even if there
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 Mass. at 817, where the trial judge refused to give the jury an instruction with respect to DNA evidence that was requested by the defendant, “[tjhere is no requirement that a judge give a special instruction on the role of DNA evidence. The judge had discretion in determining how he would instruct the jury on the issue.”
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 Supreme Judicial Court, many of which we have discussed in this opinion, we do not think that this requirement would be
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.
The pregnancy was terminated.
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.
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.
A BFAIR worker testified that the victim had her period on July 18, 1996; she recalled the incident because she had to locate a sanitary pad because the victim was not wearing one. The worker included the incident in her monthly progress report, a document that also was admitted in evidence. The mother testified that her daughter’s last period prior to her pregnancy was May 29, 1996.
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”).
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).
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.
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.
The defendant did not request a voir dire to challenge the reliability of the process underlying the Commonwealth’s expert testimony. See Commonwealth v. Curnin, 409 Mass. 218, 222 n.7 (1991); Commonwealth v. Vega, 36 Mass. App. Ct. 635, 638-639 (1994). “To preserve objections to DNA analysis [on the basis of reliability], a defendant must file an appropriate pretrial motion stating the grounds for the objections and request a hearing in accordance with the principles set forth in Canavan’s Case, 432 Mass. 304, 309-312 (2000), and Commonwealth v. Lanigan, 419 Mass. 15, 24-27 (1994).” Commonwealth v. Sparks, 433 Mass. 654, 659 (2001).
The Commonwealth’s criminal complaint in Beausoleil was based on G. L. c. 273, § 12 (begetting an illegitimate child), now repealed. St. 1986, c. 310, § 25.
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.
See Commonwealth v. Beausoleil, 397 Mass. at 210 (“The HLA test is based on the identification and typing of more than fifty antigens found in the white blood cells. . . . When administered by itself, the HLA test excludes between 78% and 80% of all nonfathers; this figure increases to over 90% when it is administered in conjunction with the enhanced Landsteiner series”).
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.”
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,