Commonwealth v. DiCicco

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SJC-11672

COMMONWEALTH vs. ROBERT DiCICCO.

Middlesex. November 4, 2014. - February 26, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines,
JJ.

Deoxyribonucleic Acid. Practice, Criminal, New trial,
Postconviction relief. Evidence, Expert opinion,
Scientific test. Witness, Expert.

Indictment found and returned in the Superior Court
Department on September 27, 1983.

A motion for postconviction relief, filed on November 28,
2007, was heard by Diane M. Kottmyer, J., and a motion for
additional funds for the services of an expert witness was
considered by her.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

David J. Nathanson (Michael A. Nam-Krane with him) for the
defendant.
Hallie White Speight, Assistant District Attorney, for the
Commonwealth.
Sara A. Colb, for New England Innocence Project, amicus
curiae, submitted a brief.
Ira L. Gant & Lisa M. Kavanaugh, Committee for Public
Counsel Services, & Elizabeth A. Lunt, for Committee for Public
Counsel Services Innocence Program & another, amici curiae,
submitted a brief.
 2

CORDY, J. In 1984, the defendant was convicted by a jury

of aggravated rape. In July, 2005, the Superior Court clerk's

office in Middlesex County located the trial exhibits, including

the victim's blue jeans and underpants. They had been stored in

plastic bags since the trial. Beginning in January, 2006, the

defendant filed a series of motions to test the evidence for

deoxyribonucleic acid (DNA). These motions were granted and the

State police crime laboratory (crime laboratory) and Orchid

Cellmark (Cellmark), an independent laboratory, performed DNA

testing on the victim's clothing. The defendant subsequently

moved for a new trial pursuant to Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (1995), relying on the affidavit of

Eric Carita (Carita), a forensic analyst employed by the

Connecticut State laboratory,1 who opined that the defendant was

excluded as the source of the male DNA on the victim's jeans

based on "potential alleles."2 In July, 2010, a judge in the

Superior Court (motion judge) held a two-day evidentiary hearing

1
Eric Carita is employed as a forensic science examiner in
the nuclear deoxyribonucleic acid (DNA) casework unit at the
Connecticut State laboratory. He has worked at that laboratory
since 2003. Carita was the second DNA analyst that the
defendant retained to examine the results of the DNA testing.
2
"A DNA profile for an individual is that combination of
alleles, or versions of genes, possessed by the individual at
the loci tested." Commonwealth v. Gaynor, 443 Mass. 245, 248
n.1 (2005).
 3

on the defendant's motion for postconviction relief, at which

Carita and Christine Lemire, the crime laboratory analyst who

performed the DNA analysis,3 testified.

Subsequently, on March 28, 2011, the judge denied the

defendant's motion for a new trial in a detailed memorandum of

decision and order. In an unpublished memorandum and order

pursuant to its rule 1:28, the Appeals Court affirmed the

denial. See Commonwealth v. DiCicco, 84 Mass. App. Ct. 1128

(2014). We granted the defendant's application for further

appellate review and conclude that the motion judge did not

abuse her discretion in determining that, under Commonwealth v.

Lanigan, 419 Mass. 15, 25-26 (1994), Carita's opinion was not

sufficiently reliable to be placed before a jury, and the

defendant's motion for a new trial was properly denied.

Background. We consider the facts as set forth in the

motion judge's findings after an evidentiary hearing, which are

supported by the evidence in the record.4 See Commonwealth v.

Stephens, 451 Mass. 370, 372 (2008).

1. Evidence at the 1984 trial. In August, 1983, the

victim was walking home through a parking lot in Waltham

3
Christine Lemire is employed as a DNA analyst with the
Massachusetts Forensic Technology Center (also commonly known as
the State police crime laboratory [crime laboratory]). She has
worked at that laboratory since 1996.
4
See note 22, infra.
 4

sometime after 1:30 A.M. when she was attacked by two men. One

of these men, later identified as Vincent Park,5 grabbed the

victim and forced her to the ground. While Park pinned the

victim down, the second man, subsequently identified as the

defendant, pulled the victim's jeans and underwear down to her

ankles. As she struggled, the second man raped her vaginally.

The first man called the second man "Chick" and said something

about his "turn."

While the rape was occurring, a van entered the parking lot

and illuminated the area with its headlights such that the

victim could see the second man. This man then stood up and

urinated on and around the victim. The two men then ran from

the parking lot with the van in pursuit. The victim had trouble

getting up because she kept slipping on the urine, but on doing

so, she ran to a telephone booth and called her father. The

police were called and the victim went to the hospital, where

evidence was collected and the victim was interviewed. Two

hours after the rape, the victim told police that she thought

she had seen the second man before and that his name was Robert

or "Chico." Additionally, she provided the police with a

physical description of the second man. The police took the

5
Vincent Park was later charged with aggravated rape, but
was found not guilty by reason of lack of criminal
responsibility.
 5

evidence, including the victim's clothing, when leaving the

hospital.

Later that morning, the victim went to the police station,

looked through two books of photographs, and positively

identified the defendant as the person who had raped her. The

police located the defendant at a local shelter at 6:45 A.M.

Although the defendant had been scheduled to be at the shelter

the previous night, he did not arrive until shortly before the

police looked for him there. The defendant fit the description

of the second man provided by the victim. At trial, the victim

identified the defendant again.

At trial, the parties stipulated that Mark Grant, a State

police chemist, would testify to facts contained in his October,

1983, report, that chemical tests conducted on a stain on the

victim's underwear did not exclude the defendant as the source,

but were inconclusive as to anything further. The tests,

conducted both on the stain and on a vaginal smear slide taken

from the rape kit administered to the victim after the attack,

were positive for the presence of a substance characteristically

found in semen, but no sperm cells were found.

The defendant was convicted and sentenced to a term of not

more than twenty years or less than eighteen years in State

prison. On April 26, 1985, the Appeals Court affirmed the

defendant's conviction, Commonwealth v. DiCicco, 19 Mass. App.
 6

Ct. 1115 (1985). After completing his sentence, the defendant

was found to be a sexually dangerous person and was committed to

the Nemansket Treatment Center at Bridgewater.

2. Postconviction proceedings. In January, 2006, after

the Superior Court clerk's office located the trial exhibits,6

the defendant filed a motion for necessary access to test

evidence for DNA, a motion for funds to do comparison DNA

testing, and a request for discovery and access to the smear

slide. These motions were granted subject to the parties'

filing a stipulation as to protocols for handling and testing

the DNA evidence and subject to the availability of the smear

slide.7

In July, 2006, the defendant's motion for funds for a

defense expert, Thomas Fedor of the Serological Research

Institute, to observe the inventory and evidence assessment at

the crime laboratory was granted. Later that month, the

Commonwealth filed a stipulation for release and testing of the

evidence, wherein the parties agreed that portions of the

victim's jeans and underpants would be released for testing.

This stipulation was approved and Fedor was present in November,

2006, when the clothing was examined at the crime laboratory.

6
Originally the Superior Court clerk's office in Middlesex
County had indicated that the exhibits were "gone, destroyed."
7
The vaginal smear slide had been lost, and therefore was
not available for testing in 2007 and 2008.
 7

a. Results of the crime laboratory DNA testing. In

December, 2006, the victim's clothing was examined at the crime

laboratory. No sperm cells or seminal fluid residue was

detected in the stains on the victim's underpants. Several

stains were observed on the exterior and interior of the jeans,

and sperm cells were detected in three of them. Cuttings were

then taken from these three stains (stains 9, 13, and 14). Only

stains 13 and 14 are relevant on appeal.8,9

The crime laboratory10 extracted DNA from the above

mentioned cuttings and performed short tandem repeat (STR)

8
The analysis of stain 9 by the crime laboratory resulted
in a finding of "insufficient DNA" for comparison in both its
sperm and nonsperm fractions. Carita does not offer an opinion
as to stain 9.
9
The samples provided to the defense were subsequently
tested by Orchard Cellmark (Cellmark), see infra.
10
Laboratories that analyze DNA samples for forensic
casework purposes are required by the Quality Assurance
Standards for Forensic DNA Testing Laboratories to "establish
and follow documented procedures for the interpretation of DNA
typing results and reporting." The Scientific Working Group DNA
Analysis Methods (DNA working group), a group of individuals
authorized by Congress to advise the Federal Bureau of
Investigation on DNA testing, has promulgated interpretation
guidelines that are generally accepted in the community of
forensic DNA analysts. The crime laboratory has adopted the DNA
working group's Y-STR guidelines, and analysts conducting Y-STR
analysis are required to comply with these protocols. The DNA
working group's guidelines recommend the establishment of
certain thresholds in the interpretation of Y-STR DNA results.
 8

testing/typing (specifically Y-STR testing)11 on stains 13 and

14. The Y-STR DNA testing is conducted first by subjecting the

sample to a process of "differential extraction" which separates

any sperm cells (sperm fraction) from epithelial cells (nonsperm

fraction). On stain 13, the crime laboratory concluded that the

defendant was excluded as the source of the nonsperm fraction

DNA,12 but that there was insufficient DNA for analysis in the

sperm fraction, as the only result was a single "potential

allele," falling below the threshold at which alleles can be

positively identified, at Locus DYS456.13 As for stain 14, the

11
Short tandem repeat (STR) testing focuses on different
places (loci) on the human genome where certain known sequences
of DNA base pairs repeat themselves. The repeat sequences at a
particular locus are called alleles. Analysts measure the
number of times these repeat sequences occur in a forensic DNA
sample to determine whether the sample matches the subject's DNA
profile. Y-STR typing is a technique by which analysts separate
male DNA from female DNA and focus only on the male fragment.
12
Alleles were identified ("called") at seven loci and
potential alleles were identified at an additional four loci.
13
Consistent with DNA working group's Y-STR guidelines, the
crime laboratory conducted validation studies to help establish
certain thresholds for use in the interpretation of Y-STR DNA
results. Based on the data generated in these validation
studies, the crime laboratory established a "noise threshold,"
which is "based on signal-to-noise analysis internally derived
from empiric data." The noise threshold at the crime laboratory
was established at fifty-five relative fluorescent units (RFUs).
The crime laboratory also established a "call threshold," which
is the level at which the laboratory would identify or report a
peak as an allele given the strength of the result. The call
threshold at the crime laboratory was established as three times
the noise threshold, or 165 RFUs. Pursuant to the crime
laboratory's protocol, peaks below the call level, but above the
 9

crime laboratory concluded that there was a mixture of more than

one male source in the nonsperm fraction, which yielded

inconclusive results for comparison with the defendant's DNA,

that is, he could not be included or excluded as one of the

contributors. With respect to the sperm fraction, there was

insufficient DNA for analysis.

b. Motion for postconviction relief. In November, 2007,

the defendant filed a motion for postconviction relief, arguing

that the results of the comparative DNA testing done by the

crime laboratory exonerated him. In March, 2008, the defendant

filed a substitute motion for funds and access to do comparison

DNA testing by the defendant's expert, or, in the alternative,

for further testing by the Commonwealth and for funds for

observation of such testing by the defendant's expert.14 On

September 24, 2008, after a hearing, the judge allowed the

defendant's motion for funds to have Cellmark take custody of

noise level, are called "potential alleles," and are designated
by an asterisk symbol and a number. Both called and potential
alleles are "then checked by two DNA analysts to verify that the
resulting peaks are found in the correct horizontal location
('binned' correctly) and are shaped correctly (have good 'peak
morphology') and are not artifacts." The single potential
allele detected in the crime laboratory's testing of the sperm
fraction of stain 13 was approximately seventy RFUs, just over
the noise threshold established by the laboratory, and
significantly below the call threshold of 165 RFUs.
14
In support of this motion, the defendant submitted an
affidavit of Thomas Fedor.
 10

the useable samples from the crime laboratory and subject them

to further DNA testing.

With respect to stain 13, Cellmark concurred with the crime

laboratory's conclusion as to the nonsperm fraction, that the

defendant was excluded as the source. With respect to the sperm

fraction, where the crime laboratory testing had revealed a

single potential allele, insufficient for analysis, Cellmark's

testing detected no male DNA at all. Cellmark's testing of the

stain 14 sample also detected no male DNA in the sperm fraction,

and concurred with the crime laboratory that the defendant could

not be excluded as a contributor of the male DNA detected in the

nonsperm sample.

In March, 2010, the defendant filed a document entitled,

"Submission of New Forensic Analysis and Motion for Immediate

Relief," together with an affidavit of Carita. The defendant

had retained Carita to review the test data from the analyses of

the crime laboratory and Cellmark. In his affidavit, Carita

stated an opinion that excluded the defendant as the source of

DNA found in both stain samples (13 and 14) taken from the

victim's jeans. The Commonwealth filed an opposition to the

defendant's motion along with an affidavit of Lemire. In April,

2010, the judge found that, notwithstanding certain limitations,

the Carita affidavit stated an opinion that might be admissible

in evidence. Accordingly, she ordered an evidentiary hearing,
 11

explaining that the defendant would have the burden of

establishing both the admissibility of Carita's opinion and that

any DNA evidence that would be admissible satisfied the standard

for a new trial.

3. Evidentiary hearing. A two-day evidentiary hearing was

held, at which both Carita and Lemire testified15 and the

laboratory reports were admitted in evidence.

a. Carita's testimony. Consistent with his affidavit,

Carita testified that the defendant was excluded as the donor of

DNA extracted from the nonsperm fractions of stains 13 and 14.

Although both laboratory reports and Lemire concurred that the

defendant was excluded as the source of the nonsperm fraction of

15
At the hearing, the defendant did not call Fedor, his
previous expert, as a witness, but stated that he was relying
solely on the test results of the crime laboratory and Cellmark,
along with Carita's testimony. Until he filed the Carita
affidavit in March, 2010, the defendant had relied on an
affidavit submitted by Fedor. Fedor did not personally analyze
the DNA, but he had reviewed the test data from the crime
laboratory. Fedor agreed with the crime laboratory that the
defendant was excluded as the source of the DNA on the nonsperm
fraction of stain 13. He disagreed, however, with the crime
laboratory's conclusion that there was insufficient data to
include or exclude the defendant as the source of the DNA from
the nonsperm fraction of stain 14, concluding that the defendant
was excluded as its source. Fedor did note that, "[a]dmittedly,
there is the problem of 'extraneous DNA,'" but qualified this
statement given his speculation that the cuttings were taken
from the area of the victim's jeans that would have been
"potentially soaking in the assailant's urine." Fedor did not
address the crime laboratory's conclusion that the partial DNA
profile obtained from stain 14 indicated the presence of more
than one source. The record does not indicate that Fedor drew
any conclusions regarding the sperm fractions of either cutting.
 12

stain 13, only Carita testified that the defendant was also

excluded as the donor of DNA extracted from the nonsperm

fraction of stain 14. Although he agreed with the crime

laboratory (and Cellmark) that the DNA from the nonsperm

fraction of stain 14 was a mixture from more than one male,

Carita based his opinion of exclusion on the fact that "two

possible genetic markers" identified by the crime laboratory as

potential alleles at one location (DYS458) were inconsistent

with the defendant's allele at that location.16 Additionally,

Carita testified that the defendant also was excluded as the

donor of the DNA extracted from the sperm fraction of stain 13.

His opinion was based on the single potential allele, measured

at approximately seventy relative fluorescent units (RFUs), at

DYS456, far below the "call" threshold of 165 RFUs established

by the crime laboratory. See notes 12 and 13, supra.

Carita acknowledged in his testimony that his opinion was

not in accord with the crime laboratory's Y-STR interpretive

guidelines, and offered no evidence that the Scientific Working

Group DNA Analysis Methods (DNA working group) Y-STR guidelines

explicitly permit an exclusion to be based on a single potential

allele. He contended, however, that his conclusions were

nevertheless permissible under the provisions of the DNA working

16
Both the crime laboratory and Cellmark had concluded that
there was insufficient data to render such a conclusion.
 13

group's Y-STR guidelines, which state that "the interpretation

of the results of casework is a matter of professional judgment

and expertise . . . not every situation can or should be covered

in a preset rule." Carita went on to testify that he relied on

the Connecticut State laboratory interpretive guidelines, which

bind him in his consulting work, to form his opinion, but these

were not introduced in evidence.

b. Motion judge's ruling. After hearing, the judge ruled

that, given the limited data from the low-level DNA procured

from the victim's clothing, Carita's opinions with respect to

the sperm fraction of stain 13 and the nonsperm fraction of

stain 14, which were based exclusively on potential alleles,

were not sufficiently reliable to be placed before a jury. With

respect to the sperm fraction of stain 13, the judge found that

Carita cited no authority for the proposition that an exclusion

may be based on a single potential allele in the absence of any

other data, and that the potential allele on which he relied did

not meet "the requirements of the laboratory's calling

threshold, which gives absolute confirmation that a genetic

marker is DNA and not a possible artifact." The judge also

found that although Carita agreed that the detected DNA in the

nonsperm fraction of stain 14 was a mixture, he cited no

authority for the proposition that an exclusion may be based on

two potential alleles at one locus in such a mixed sample where
 14

the possibility of stutter17 cannot be eliminated. Although the

judge acknowledged that it is permissible to use potential

alleles in the interpretation of a DNA profile, "[i]n this case

. . . given the minimal amount of DNA, Carita is not using

potential alleles to interpret results. His opinions are based

solely on peaks identified as potential alleles in the context

of very limited data obtained from low-level DNA."18

After concluding that Carita's opinions with respect to the

sperm fraction of stain 13 and the nonsperm fraction of stain 14

would not be admitted in evidence, she went on to find that the

newly discovered DNA evidence which would be admissible lacked

the materiality, weight, and significance necessary to

demonstrate that it would likely have been a real factor in the

jury's deliberations.

Discussion. "Motions for a new trial are addressed to the

'sound discretion' of the trial judge." Commonwealth v.

DiBenedetto, 458 Mass. 657, 663-664 (2011), citing Commonwealth

v. De Christoforo, 360 Mass. 531, 542 (1971). See also Mass. R.

17
Stutter, "a very common artifact," is a byproduct of the
process used to amplify DNA and will result in peaks that occur
before and after a real peak. Accordingly, stutter peaks may
mask true peaks.
18
In making her findings, the judge pointed out that the
findings in the report of Cellmark, an independent laboratory
hired by the defendant, were consistent with the crime
laboratory findings in all material respects, and both stood in
stark contrast to Carita's opinion as to the adequacy of the
data to make an exclusion.
 15

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). "Judges

are to apply the standard set out in Mass. R. Crim. P. 30 (b)

rigorously," and "grant such a motion only if it appears that

justice may not have been done" (quotations and citations

omitted). Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992).

"[A]n appellate court will examine the motion judge's conclusion

only to determine whether there has been a significant error of

law or other abuse of discretion." DiBenedetto, 458 Mass. at

664, quoting Commonwealth v. Wolinski, 431 Mass. 228, 235

(2000).

1. The exclusion of Carita's opinion. In Lanigan, 419

Mass. at 25-26, we adopted, in part, the standard for the

admissibility of expert testimony delineated by the United

States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993). In so doing, we held that "a

proponent of scientific opinion evidence may demonstrate the

reliability or validity of the underlying scientific theory or

process by some other means, that is, without establishing

general acceptance," Lanigan, supra at 26, as "the touchstone

of admissibility is reliability, and not necessarily general

acceptance within the scientific community." Commonwealth v.

Vao Sok, 425 Mass. 787, 796 (1997), quoting Commonwealth v.

Sands, 424 Mass. 184, 185-186 (1997). However, we noted that,

"in most cases general acceptance will be the significant, and
 16

'often the only, issue.'" Canavan's Case, 432 Mass. 304, 310

(2000), quoting Lanigan, supra. Accordingly, "a party seeking

to introduce scientific evidence may lay an adequate foundation

either by establishing general acceptance in the scientific

community or by showing that the evidence is reliable or valid

through an alternate means." Canavan's Case, supra.

Under Daubert-Lanigan, the motion judge, in her role as

gatekeeper, "has a significant function to carry out in deciding

on the admissibility of a scientific expert's opinion."

Lanigan, 419 Mass. at 25. Conclusions based on personal

observation or clinical experience are subject to this analysis.

Canavan's Case, 432 Mass. at 313. The expert's opinion must

"have a reliable basis in the knowledge and experience of his

discipline," Daubert, 509 U.S. at 592, and the motion judge must

assess "whether the reasoning or methodology underlying [an

expert witness's] testimony is scientifically valid and whether

that reasoning or methodology is properly applied to the facts

in issue." Lanigan, supra at 26, quoting Daubert, supra at 592-

593.

Accordingly, if the process or theory underlying an

expert's opinion lacks sufficient reliability or an expert

cannot provide a reliable factual basis for his conclusions, the

trial judge must exclude the opinion from reaching the trier of

fact. Lanigan, 419 Mass. at 25-26. See Canavan's Case, 432
 17

Mass. at 315.19 The defendant, as the proponent of the expert

testimony at issue, has the burden to establish that Carita's

opinion is reliable. See Commonwealth v. Sliech-Brodeur, 457

Mass. 300, 328 n.41 (2010), citing Canavan's Case, 432 Mass. at

314. We review a judge's determination to admit or exclude

expert testimony under Daubert-Lanigan for an abuse of

discretion. Commonwealth v. Vasquez, 462 Mass. 827, 844 (2012).

Commonwealth v. Pytou Heang, 458 Mass. 827, 844 (2011). As we

have held previously, "the admissibility of DNA test results

should be determined on a case-by-case basis." Commonwealth v.

Mathews, 450 Mass. 858, 871 (2008), citing Commonwealth v.

Curnin, 409 Mass. 218, 222 (1991).20

a. Stain 13. The defendant argues that Carita's opinion

regarding the sperm fraction of stain 13 is admissible for a few

reasons. First, he contends that the opinion meets the Daubert-

Lanigan standard as it is "based on reliable data from which

[Carita] drew a logical conclusion." The defendant notes that

the motion judge never found that the potential allele found in

19
See Mass. G. Evid. § 702 (2014) (expert opinion may be
given if "[a] the testimony is based upon sufficient facts or
data, [b] the testimony is the product of reliable principles
and methods, and [c] the witness has applied the principles and
methods reliably to the facts of the case").
20
"[A] judge's determination on the reliability of
scientific testimony is no different from other evidentiary
decisions by a trial judge that are reviewed on appeal under an
abuse of discretion standard of review." Canavan's Case, 432
Mass. 304, 311 (2000).
 18

the sperm fraction of stain 13 was unreliable. Further, both

Carita and Lemire testified that potential alleles were used in

the work of DNA analysts. Both individuals additionally agreed

that the potential allele was correctly designated and that it

had the hallmarks of correct binning and good peak morphology.

See note 13, supra. Moreover, the potential allele occurred at

a smaller locus, making it more efficiently amplified and, the

defendant contends, reliable. The defendant argues that

excluding Carita's opinion because of factors such as potential

DNA degradation21 is improper, as both experts agreed that

degradation would not change the defendant's allele at DYS456.

Second, the defendant argues that Carita's opinion was

reasonable, and that Carita's reliance on a single potential

allele is "merely application of accepted methodology to a

specific context." He contends that Carita did follow the Y-STR

interpretation guidelines set forth by the DNA working group, as

promulgated in January, 2009, which state that interpreting

evidence is a matter of "professional judgment and expertise"

and "[n]ot every situation can or should be covered by a preset

rule." Further, the defendant contends that Carita's conclusion

21
As the motion judge found, degradation "relates to the
DNA molecule breaking up . . . over time," or due to exposure to
certain other factors. A proper environment for DNA storage is
in breathable material (e.g., paper) and in a cool, dark, dry
environment. Degradation of DNA can occur as a result of
ultraviolet light, chemicals, or microbes, in addition to
improper packaging and handling.
 19

aligns with § 1.1.1.1. of the DNA working group's Y-STR

guidelines, which states that the "analytical thresholds are

defined as the minimum and maximum intensity thresholds between

which data are reliable for use in allele designations."

Accordingly, he contends that the lack of a specific DNA working

group guideline governing exclusion on single potential alleles

is of no import.

Last, the defendant argues that the motion judge

misunderstood her gatekeeping role under Daubert-Lanigan. He

contends that the motion judge's issue with Carita's

interpretation of the data and her concerns over factors such as

possible degradation ought to have gone only to the opinion's

weight, rather than its admissibility, and remained a question

for a jury to determine.

After reviewing the record before the judge below, we

cannot say that she abused the discretion afforded to her under

Daubert-Lanigan in excluding Carita's testimony. Carita's

opinion that the defendant was excluded as the contributor of

the sperm fraction of stain 13 was based solely on a single

below-threshold peak. He acknowledged that this potential

allele did not meet the crime laboratory's calling threshold,

which would have provided "absolute confirmation that a genetic

marker is DNA and not a possible artifact," but nevertheless was
 20

"probably true" DNA.22 Although it is undisputed that such

potential alleles may be used for interpretational purposes

along with other data when examining an individual's DNA

profile, it was not an abuse of discretion to find that, in the

absence of any authority substantiating Carita's opinion, a

single potential allele without any other data is not enough to

exclude an individual. As Lemire testified, "[T]here's just not

enough data . . . to generate any comparison . . . ."

Based on the record on appeal, Carita provided virtually no

support for his opinion except to testify that the DNA working

group does not explicitly prohibit this practice and that he

once before had rendered a similar exclusion opinion based on a

single potential allele. Aside from this testimony, the

defendant offered no evidence to establish that Carita's opinion

was generally accepted by the relevant scientific community or

otherwise was sufficiently reliable. Carita cited to no

scientific authority, in either his affidavit or in his hearing

22
The motion judge appears to have erred in her finding
that Carita admitted that he had not complied with DNA working
group guidelines in reaching his opinion. Although it is
accurate that Carita did not comply with the crime laboratory's
protocols that had been promulgated in accord with the DNA
working group's advice that each laboratory "prepare guidelines
for formulating conclusions resulting from comparisons of
evidentiary samples and known reference samples," see § 4.1 of
the DNA working group's Y-STR guidelines, he did not violate any
explicit DNA working group provision. However, this fact does
not change our over-all assessment that, for a myriad of other
reasons, the judge did not abuse her discretion in ruling
Carita's opinion inadmissible.
 21

testimony, to support his ultimate conclusion, instead relying

solely on his "judgment and expertise."23 Nor did the defendant

supply the judge with written guidelines for Carita's laboratory

in Connecticut or any other laboratory which supported the

reliability of Carita's opinion. See Canavan's Case, 432 Mass.

at 315, quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157

(1999) (no rule requires court "to admit opinion evidence that

is connected to existing data only by the ipse dixit of the

expert").

Carita pointed to no error in Lemire's analysis and did not

challenge Cellmark's conclusions that it found no DNA at all in

the sperm fraction of stain 13. Although it is accurate that

Lemire agreed that the potential allele in question was likely

real human DNA, she explained that, under the DNA working group

and the crime laboratory's protocols, she could not confirm this

conclusion, as the potential allele registered below the call

threshold and she had no other results to interpret. She

explained that although the peak in question resembled real DNA,

it could have just been noise given its registration below the

23
In support of Carita's opinion, the defendant's brief
cites to a single article entitled "DNA for the Defense Bar,"
issued by the Department of Justice's National Institute of
Justice (2012), which was not before the motion judge and to
which the Commonwealth objects. The defendant neither argues
that this publication qualifies as a learned treatise nor that
it would have been admissible at the evidentiary hearing. As
such, it does not affect our calculus as to whether the judge
abused her discretion in deeming Carita's opinion inadmissible.
 22

call threshold. Further, while acknowledging that a potential

allele may be used for interpretation, Lemire repeatedly

testified that in order to use potential alleles below threshold

in her analysis she would need additional information at any

given profile in order to utilize that information for an

interpretation.24 This was all the more convincing to the judge

given Lemire's testimony that the tested sample is "low template

DNA," and it is possible that inhibition25 and degradation may

have been factors in the sample.26

b. Stain 14. The defendant also argues that Carita's

opinion regarding the nonsperm fraction of stain 14 ought to be

admissible. Testing indicated that this fraction was likely a

24
The defendant takes issue with the fact that Lemire used
alleles below threshold to support a conclusion of inclusion in
her testimony in a different case. However, there, unlike here,
Lemire had "additional information beyond simply . . . a
potential allele below threshold" to aid her analysis. The
judge concluded that the cases were sufficiently dissimilar such
that Lemire's conclusions are not inconsistent.
25
As the motion judge found, inhibition "relates to the
ability to generate an STR profile." In the quantification
system, there is an internal positive control that is used as an
indicator as to "whether inhibitors or chemicals or anything
intrinsic to the DNA . . . sample may be compromising or not
allowing the method to work effectively." However, even where
inhibition is not detected at the quantification stage, it may
be present at different sites and affect the analysis.
26
Although Carita testified that he saw no evidence of
these factors in the sample, he also qualified his testimony to
state that the sample involved a very small amount of DNA, so he
could see no appearance of inhibition, and "the profile's too
low to determine whether there could or could not have been
degradation."
 23

mixture of DNA from more than one male. Data were retrieved at

just four loci and only two alleles (out of a potential

seventeen or eighteen) were called. Of these two called

alleles, one at DYS393 matched the defendant, while the other at

DYS389I was inconsistent with his profile. Two other potential

alleles (one at DYS389I and the other at DYS391) were also

consistent with the defendant. Of chief significance to

Carita's opinion was the identification of two additional

potential alleles at another locus, DYS458, which did not match

the defendant. Lemire and Carita agreed that the presence of

these two potential alleles at the same location likely

indicated a mixture of DNA from more than one source. Carita,

however, inferred from these two potential alleles that the

defendant definitively could be excluded as the contributor of

the nonsperm fraction of stain 14. Lemire, on the other hand,

testified that the data obtained were insufficient for

comparison. Cellmark's test results agreed with Lemire's

conclusion.

As with the sperm fraction from stain 13, discussed above,

we cannot say that it was an abuse of discretion for the judge

to rule Carita's opinion inadmissible. As an initial matter,

the two potential alleles at DYS458 that form the basis of

Carita's opinion were just fifteen RFUs above the crime

laboratory's noise threshold. Lemire testified that sufficient
 24

DNA was not found such that one could eliminate the possibility

of "stutter" from this mixed sample.27 She explained that the

two potential alleles in question, at just fifteen RFUs, gave

rise to the possibility of a peak which would be consistent with

the defendant's known DNA profile at DYS458 in a "stutter"

position.28 She explained that if there were sufficient DNA in

the sample, which there was not, an analyst could determine

whether there was DNA present from something other than a

stutter artifact. However, Lemire explained that here the

defendant could not be excluded because the data were too

limited to evaluate whether there was something more than

stutter present.29 Carita testified that "there was no stutter

available for evaluation," as it was a "low-level sample."

The appellate record is devoid of any reliable authority to

support Carita's conclusion that an individual can be excluded

27
In mixed samples, stutter and alleles can overlap,
thereby complicating interpretation.
28
Stutter occurs when, during the amplification process, a
fragment one repeat unit smaller or larger than the true allele
is produced. As a result, stutter generates a peak that is
actually one repeat unit off from the main peak. A stutter
artifact of a 15 allele (such as that of the defendant at the
DYS458 locus) could appear at a 16 allele because of the stutter
effect. See note 17, supra.
29
Lemire testified that, according to the crime
laboratory's Y-STR guidelines, had there been peaks present
above the call threshold at this loci she would have been able
to evaluate whether the potential alleles at fifteen RFUs were
more than just stutter.
 25

as a donor based on these two potential alleles that (1) are in

a low-level mixed sample, (2) register merely fifteen RFUs above

the noise threshold, and (3) may represent a stutter peak. He

does not point to any DNA working group or crime laboratory

guideline or other scientific authority that permits his

conclusion. Carita did not merely use these potential alleles

to aid in his over-all interpretation of a DNA profile, but

instead he made below-threshold peaks the sole basis for his

opinion.

2. Admissible evidence as factor in jury deliberations.

We also must consider whether the defendant has established that

the DNA evidence that is admissible casts meaningful doubt on

the justice of his conviction. See Commonwealth v. Grace, 397

Mass. 303, 305 (1986); Mass. R. Crim. P. 30 (b) ("trial judge

. . . may grant a new trial at any time if it appears that

justice may not have been done"). See also Commonwealth v.

Cintron, 435 Mass. 509, 516 (2001), overruled on other grounds

by Commonwealth v. Hart, 455 Mass. 230 (2009); Commonwealth v.

Pike, 431 Mass. 212, 218 (2000).

The relevant question is not whether the verdict would have

necessarily been different, but "whether the new evidence would

probably have been a real factor in the jury's deliberations."

Grace, 397 Mass. at 306. Additionally, the new evidence must

demonstrate such materiality, weight, and significance that the
 26

motion judge could find that "there is a substantial risk that

the jury would have reached a different conclusion had the

evidence been admitted at trial." Id. As rule 30 (b) motions

are attacks on final decisions, they are "granted only in

extraordinary circumstances," Commonwealth v. Comita, 441 Mass.

86, 93 (2004), and the defendant has the burden of producing a

"credible reason" to reverse the final decision that "outweighs

the risk of prejudice to the Commonwealth." Commonwealth v.

Lopez, 426 Mass. 657, 662 (1998), quoting Fanelli, 412 Mass. at

504.

Both the crime laboratory and Cellmark agreed that the

defendant was excluded as the source of the DNA recovered from

the nonsperm fraction of stain 13. The defendant argues that

this stain must have been deposited by the assailant's urine at

the time of the attack, by virtue of the victim's trial

testimony that the assailant urinated "on and around me" and

that she slipped in urine while attempting to stand.30

Accordingly, the defendant argues that because these cells

30
Although urea, a substance typically found in urine, was
not detected in the sample, the defendant argues that this
substance might have dissipated in the intervening twenty-three
years between when the pants were collected in evidence and when
they were submitted for DNA testing. We note that this is
possible, as a crime laboratory's chemist averred in her report
that the failure to detect semen and urine is unremarkable as
such fluids do not have cell walls and break down more easily
than epithelial cells.
 27

indisputably do not belong to him, he could not have been the

assailant.

However, as noted by the judge, there is no scientific

method of ascertaining whether these cells were deposited by the

assailant or by any one of the many individuals who handled the

evidence after the commission of the crime. The pants in

question were taken from the victim at the hospital, turned over

to the police, and admitted in evidence at trial. For over

twenty years the evidence was indisputably stored in plastic

bags, an environment incapable of protecting against

contamination.31 The defendant's argument that the epithelial

cells present in stain 13 necessarily came from the assailant's

urine is a statement of conjecture, at best.

It remains the defendant's burden to demonstrate the

importance of newly available evidence, see Grace, 397 Mass. at

306, and there is simply no way of determining when and under

what circumstances the male DNA obtained from the nonsperm

fraction of this stain was deposited. Lemire specifically

testified that she was unable to draw any conclusions as to the

time or manner by which the DNA was deposited and she had no

scientific way of assessing whether the evidence had been

31
The crime laboratory's DNA Y-STR report states,
"[e]xtraneous DNA may be present on common articles such as
clothing, shoes, etc. This extraneous DNA often manifests
itself as a low level minor male contributor in a DNA result,
and may have no probative value in a case."
 28

contaminated prior to its arrival at the crime laboratory.

Accordingly, the judge could not determine whether the exclusion

of the defendant as the contributor of this DNA had any

significant probative value, thereby diluting the defendant's

argument of materiality and undermining claims that the jury

would have reached a different conclusion had the evidence been

admitted at trial.

In sum, the newly available, admissible evidence would have

shown that (1) the DNA, if any, contained in the sperm cells of

both stains and the nonsperm cells of stain 14 were insufficient

to either include or exclude the defendant as their donor; and

(2) it is not possible to determine the significance of the fact

that the defendant was excluded as a source of the nonsperm

cells in stain 13. We agree with the judge that this evidence

would not be capable of casting meaningful doubt on the jury's

verdict that the defendant was the perpetrator of the rape.

3. Additional expert funds. The defendant first filed a

motion for funds to do comparison DNA testing in January, 2006.

In May of that year, the motion was granted in the amount of

$4,000. Subsequently, in July, 2006, the defendant filed a

motion for funds in the amount of $5,000 for his defense expert

at the time (Fedor) to observe the inventory and assessment of

evidence at the crime laboratory. This motion was granted.
 29

Nearly two years later, in March, 2008, the defendant filed

a substitute motion for funds and access to do comparison DNA

testing by the defendant's expert, or, in the alternative, for

further testing by the Commonwealth and for funds for

observation of such testing by the defendant's expert. A second

motion for funds was filed in September, 2008, and the judge

permitted the defendant's motion in the amount of $6,575 to have

Cellmark take custody of usable samples from the crime

laboratory and subject them to independent DNA testing.

In October, 2009, the defendant moved for funds in the

amount of $5,500 for the attendance of Fedor and "a like amount"

for the attendance of a representative from Cellmark at an

evidentiary hearing. As of March, 2010, the motion judge did

not believe, based on the record as it existed (which included

an affidavit submitted by Fedor as well as reports from both the

crime laboratory and Cellmark), that the defendant was entitled

to an evidentiary hearing on his motion for a new trial.

Subsequently, the defendant filed a document entitled

"Submission of New Forensic Analysis and Motion for Immediate

Relief," alongside the aforementioned Carita affidavit. The

defendant had not sought court approval to retain Carita, and

according to his affidavit, Carita had reviewed test data from

the crime laboratory's analysis on a voluntary basis up until

that point. The Commonwealth filed an opposition, but in April,
 30

2010, the judge found that, notwithstanding certain limitations,

the Carita affidavit stated an opinion that might be admissible

in evidence. Accordingly, the motion judge granted an

evidentiary hearing, ordering the parties to "explore the

possibility of minimizing the cost to the Commonwealth" by

taking video testimony of Fedor and a Cellmark representative.

The defendant filed, and the judge allowed, a motion for

funds for the attendance of an expert witness in the amount of

$4,500 for Carita to attend the evidentiary hearing. In his

motion, the defendant made clear that this request was "an all

inclusive authorization, covering preparation, travel, and court

time." The hearing took place on July 9 and 23, 2010, at which

both Carita and Lemire testified. As discussed above, the

motion judge ultimately found that Carita's opinions would not

be admissible at trial.

Approximately one year later, in May, 2011, the defendant

sought additional funds to cover the remainder of Carita's bill,

explaining that the original funds sought constituted an

underestimate based on an expected one-day evidentiary hearing.

The motion judge denied the motion without prejudice to renew.

On September 1, 2011, the defendant filed a renewed motion for

funds with an accompanying affidavit detailing Carita's dates of

service, work performed, and time spent traveling. The

defendant asserted that Carita was retained because the cost of
 31

transporting Fedor and an expert from Cellmark was

"substantial," and counsel had been "unsuccessful" in making

video conferencing arrangements. The motion judge denied this

motion as well, basing her decision on the defendant's failure

to seek prior approval to retain Carita and her view that

Carita's testimony was unreliable, inadmissible, and put forth

solely "to supplement an inadequate record."

Rule 30 (c) (5) of the Massachusetts Rules of Criminal

Procedure, as appearing in 435 Mass. 1501 (2001), and as

explained by the Reporters' Notes to Rule 30, Mass. Ann. Laws

Court Rules, Rules of Criminal Procedure, at 1710-1711

(LexisNexis 2014), "gives judges discretion to allow for the

payment of costs associated with the preparation and

presentation of a new trial motion" (quotations and citation

omitted). Commonwealth v. Mitchell, 438 Mass. 535, 555, cert.

denied, 539 U.S. 907 (2003). See Commonwealth v. Evans, 439

Mass. 184, 204, cert. denied, 540 U.S. 923, and cert. denied,

540 U.S. 973 (2003). Further, where an indigent defendant seeks

to obtain additional evidence in connection with a motion for

postconviction relief that would likely raise a meritorious

defense warranting a new trial, the judge has discretion to

grant a motion for funds to hire an expert. See Mitchell, 438

Mass. at 555. A judge considering such a motion for expert

funds must consider "not only the potential admissibility of the
 32

expert's testimony and its cost, but also the 'desirability or

necessity' of the testimony to the requesting party's case."

Commonwealth v. Zimmerman, 441 Mass. 146, 153 (2004), quoting

Commonwealth v. Lockley, 381 Mass. 156, 161 (1980).

The judge likely factored the above considerations into her

assessment when granting the initial $4,500 for Carita to appear

and testify at the evidentiary hearing, given that she ordered

the hearing only after receiving Carita's affidavit and finding

that Carita presented an opinion that "might be admissible." At

that point, the motion judge had before her the substance of

Carita's testimony, which did not vary at the hearing.

Although the judge would have had discretion to deny the

defendant's initial request for funds, see Zimmerman, 441 Mass.

at 152-153, her initial approval strongly supports the inference

that she deemed Carita's services to be reasonably necessary.

And although the defendant did not seek explicit permission to

retain Carita, the judge implicitly provided such permission

when granting $4,500 for Carita to appear and testify at the

evidentiary hearing.

Accordingly, it appears that the judge predicated the grant

of additional expert funds on whether she ultimately agreed with

the substance of Carita's opinion, and when denying the

defendant's renewed motion for funds, she explicitly stated that

"[h]ad the Court realized the extent to which the opinions of
 33

Mr. Carita that led to the evidentiary hearing were not based on

any accepted or reliable scientific methodology, the Court would

not have allowed" the original funds for Carita's attendance and

testimony.

Carita adequately documented the services he performed and

the time spent assisting the defendant's case. He testified on

behalf of the defendant over the course of an (unanticipated)

two-day evidentiary hearing and assisted defense counsel in

drafting proposed findings of fact. Additionally, although the

judge took issue with the fact that the defendant did not obtain

explicit permission to retain Carita, up until the point at

which the defendant sought and the judge granted funds, Carita

had provided his services pro bono. Once the judge granted the

funds requested by the defendant so that Carita could attend the

evidentiary hearing, it was not unreasonable for the defendant

to believe he had the judge's permission to retain Carita.

Although the defendant's initial request assured the judge it

would be an "all inclusive authorization," the evidentiary

hearing lasted one day longer than anticipated.

It was only in hindsight, after her ultimate finding on the

admissibility of his opinion, that the judge denied additional

funds. This is impermissible. See Zimmerman, 441 Mass. at 152-

153 (judge should consider not only potential admissibility of

expert testimony, but also "desirability or necessity" to the
 34

requesting party's case). See also Lockley, 381 Mass. at 161.

Accordingly, it was an abuse of discretion to deny the

defendant's supplemental request to pay Carita for additional

services rendered.32

Conclusion. The denial of the defendant's motion for a new

trial is affirmed and the denial of supplemental expert funds is

reversed. The case is remanded for further proceedings

consistent with this opinion.

So ordered.

32
It would have been permissible for the judge to deny the
request for additional funds if they were not justified because
the additional expenses had been foreseeable (but not approved
in advance) or because the amount was unreasonably high for the
services rendered.