Following a jury trial, Henry Juan Williams was
Background. Zachariah Johnson was seventy-one years old. He lived at 293 Washington Street in the Dorchester section of Boston. At noon on March 13, 1994, detectives found his body in an alley between 289 and 291 Washington Street, lying next to a chain link fence. A butcher knife was embedded in his chest. He had been stabbed approximately twelve times in the chest, neck, face, and hands; his ring finger bore a deep laceration just above a gold ring which had been twisted (but not removed); his left pants pocket had been pulled inside out; a dollar bill and some change lay on the ground near his body; a nearby window was smashed and broken glass lay scattered on the ground. There were bloodstains all around, including on the walkway leading from the alley toward Washington Street and on the sidewalk in front of 293 Washington Street leading in the general direction of Westville Street.
A criminalist from the Boston police crime laboratory, Mary Corey, arrived on the scene and collected and catalogued many of the blood stains and other physical evidence. Over the next two days Corey received more material from the medical examiner’s office, including samples of Johnson’s blood, fingernail clippings, and head and pubic hair; the clothing Johnson was wearing when he was killed; and the knife that had been embedded in Johnson’s chest. Antigen typing revealed Johnson had type O blood, and blood samples recovered from the scene included both type O and type A blood.
During their investigation, the police learned that Williams was an acquaintance of Johnson, a frequent visitor to his home,
The investigation also revealed that Williams left the rooming house later that morning and never returned to it, traveling to Florida and then Honduras. He was arrested when he later returned to Massachusetts.
In October, 1994, a Suffolk County grand jury began hearing evidence of Johnson’s murder and Williams’s possible involvement. On October 12, the grand jury filed a petition in the Superior Court for an “Order Directing Juan Henry Williams to Provide Samples of His Hair, Blood and Saliva.”
Williams received notice of the petition and opposed it on the grounds that it violated his right not to incriminate himself, an argument he does not pursue on appeal.
Immediately thereafter, blood and saliva samples were taken from Williams (apparently without any need for physical restraint) in the presence of defense counsel. Antigen typing of the blood samples revealed Williams’s blood to be type A. Previous antigen typing by the Boston police crime laboratory had detected type A blood in samples collected from the sidewalk in front of 293 Washington Street; the walkway leading from the alley to the sidewalk; the chain link fence in the alley; the knife handle; the bottom of Johnson’s sweatshirt; Johnson’s left pants pocket; the dollar bill; the back porch (including the stairs, post, and doorknob); and the windows in the alley.
The Boston police crime laboratory sent samples of Williams’s blood, of Johnson’s blood, and of blood found at the scene to the Center for Blood Research Laboratory and the laboratory of the Federal Bureau of Investigation for DNA testing. This testing revealed the presence of DNA consistent with Williams’s DNA in the samples of type A blood taken from the crime scene. With respect to those samples from which the most complete comparisons could be made, the probability of a person unrelated to Williams having the same genetic profile was determined to be between 1:900,000 and 1:1,100,000 African-Americans, 1:30,000,000 Caucasians, and 1:32,000,000
Discussion. The claims of error that Williams raises in his appeal regarding defects in the preindictment order were not raised at trial. Consequently, we review them to determine whether there was error, and if so, whether such error created a substantial likelihood of a miscarriage of justice. Commonwealth v. Gentile,
1. The preindictment order for hair, blood, and saliva samples. Williams claims that the preindictment order was unlawful for three reasons: first, the grand jury’s petition was substantively defective because the information supporting it was neither shown to be reliable nor adequate to establish probable cause to detain him; second, the petition was inadequate in form because it was not signed by the foreperson under oath; and third, the order failed to include judicial findings required by Matter of Lavigne,
We begin with a discussion of the requirements for such an order set forth in Matter of a Grand Jury Investigation,
Our conclusion rested in part on the unique role of the grand jury in our criminal justice system as an investigatory body with broad powers to “inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred.” Matter of a Grand Jury Investigation, supra at 226, quoting United States v. R. Enters., Inc.,
We also noted that the process by which the grand jury sought the order afforded their target important protections unavailable, for instance, in the ex parte process of obtaining a search warrant, including notice of the petition seeking the order and an opportunity to be heard by the court before its issuance. Matter of a Grand Jury Investigation, supra at 226-227 n.4. Those same protections were afforded in the present case. Williams asks us to reconsider and overrule that decision. We see no basis for doing so.
Turning to the substance of the petition, the information set forth therein fully satisfied the requirement that the grand jury have a “reasonable basis for believing” that the blood sample would “significantly aid” their investigation into Johnson’s murder. It is readily apparent from the petition that there was a basis for investigating Williams’s possible involvement in the crime, and whether the blood found at the scene of the murder was similar or identical in type to Williams’s blood would be highly probative of his presence and participation in the crime. This was not a request predicated on a hunch, a guess, or a shot in the dark.
Williams argues that the evidence heard by the grand jury and used in support of a petition such as this should be subjected
We turn next to the adequacy of the form of the petition. It is undisputed that the petition was authorized by the grand jury, accurate in its particulars, and signed by the foreperson. It was not, however, signed under oath. This court has never considered whether a petition filed by a grand jury must be under oath or supported by a sworn affidavit. We conclude that it must be when the approval sought is dependent on a showing of a “reasonable basis for believing” that the evidence sought will significantly aid the grand jury in their investigation. This requirement is minimally necessary considering the important interests at stake, and is consistent with the requirement that pretrial motions relying on facts be supported by affidavit, Mass. R. Grim. P. 13 (a),
Williams waived the requirement of an oath by failing to object to its absence. We therefore review the error to determine whether it created a substantial likelihood of a miscarriage of
Finally, we turn to the hearing itself, and the judge’s order allowing the petition. Presented with a petition from the grand jury, the judge must hold a hearing before deciding whether to order the extraction of the samples and, as noted above, must be satisfied that there is a “reasonable basis for believing” that the blood sample will “significantly aid” the grand jury’s investigation. Williams contends that the judge must also weigh other considerations, and that the judge’s order reflected neither the required finding of a “reasonable basis” nor such a weighing. This argument appears to be based on language contained in Matter of Lavigne,
The judge held a hearing on October 17, 1994, and, at its conclusion, signed a one paragraph order. See note 3, supra. The order does not include any findings, nor does it make refer
Williams also claims that the preindictment order was unconstitutional because it authorized the use of unlimited force to obtain the samples. Specifically, the order stated that “[i]f the defendant should resist, the representatives of the Commonwealth are authorized to physically restrain Juan Henry Williams as much as is necessary to procure the samples.” Such language is not unconstitutional. Courts are not required to prescribe with exactitude the particular degree of force to be used in executing warrants or carrying out orders. See Commonwealth v. Garner,
“As we have stated many times ... a judge is not required to instruct on the claimed inadequacy of a police investigation. ‘Bowden simply holds that a judge may not remove the issue from the jury’s consideration.’ ” Commonwealth v. Boateng,
3. G.L. c. 278, § 33E. We have reviewed the entire record of the proceedings in this case as is our responsibility pursuant to G. L. c. 278, § 33E, and see no basis for exercising our authority to reduce the jury’s verdict of guilty of murder in the first degree or to grant Williams any other relief.
Judgments affirmed.
Notes
There is some confusion as to Williams’s name. In the grand jury’s petition and the resulting court order, he is referred to as “Juan Henry Williams.” In all other instances, including in the indictments, he is referred to as “Henry Juan Williams,” occasionally followed with “otherwise known as Preston Williams.” As is our custom we recite the defendant’s name as it first appears on the indictments. See Commonwealth v. Adams,
In the Superior Court proceedings, Williams conceded that the petition set forth “probable cause” to obtain the evidence. It is not clear from the transcript whether this was a concession that the petition set forth “probable cause” to believe that Williams committed the crime or “probable cause” to believe that the evidence sought would aid in the grand jury’s investigation. See discussion infra.
This case was previously before this court on an interlocutory appeal concerning the admissibility of DNA testing. Commonwealth v. Vao Sok,
We do not mean to suggest, however, that a judge, in considering such a petition, cannot inquire into the basis or the “reasonableness” of the basis on which the grand jury are relying.
The court recognizes that there will be occasions when only a summary (and perhaps only a partial summary) of the relevant evidence may be set forth in a petition, where there is danger that the investigation might be prematurely compromised by further or more specific disclosures. If the prosecutor is called on by the judge to elaborate, the judge may consider any such elaboration (whether under oath or provided by the prosecutor as an officer of the court with firsthand knowledge of the evidence presented to the grand jury) in his or her discretion in ruling on the petition.
We note that the hearing was held and the order entered one month before this court decided Matter of Lavigne,
Williams requested that the judge give an instruction that stated in relevant part: “In considering whether the Commonwealth has proven the charges against the defendant beyond a reasonable doubt, you may consider . . . whether the Commonwealth failed to collect and preserve the evidence properly .... I instruct you that if you find that the authorities unreasonably failed ... to properly collect and preserve the evidence in this case . . . such a finding may raise a reasonable doubt as to the defendant’s guilt.” The judge declined to give the instruction, to which Williams objected.