Commonwealth v. Anitus
Commonwealth v. Anitus
Opinion of the Court
*104Following a jury trial, the defendant was convicted of armed robbery while masked, pursuant to G. L. c. 265, § 17, and assault by means of a dangerous weapon, pursuant to G. L. c. 265, § 15B(b ). On appeal, the defendant argues that there was insufficient evidence to support the conviction of armed robbery while masked under Commonwealth v. Morris,
Background. On July 3, 2013, two men broke into a Burger King in Easton at around 11:30 P.M. and stole approximately $3,000.
*105Both men were described by the restaurant manager, who was present during the robbery, as African-American and wearing blue surgical masks. The first assailant was approximately six feet tall, and armed with a gun; he wore a dark hooded sweatshirt. The second assailant, who wore a tan hooded sweatshirt, was "a little bit taller" than the armed man.
Surveillance recordings from the Burger King and the neighboring Dunkin' Donuts captured images of both men as they fled the crime scene. The recordings showed the second assailant removing his mask and, as he is fleeing the crime scene, tossing something into the Dunkin' Donuts plaza. His profile was captured in one of the recordings; however, the recording (and the still photographs captured from it) were grainy and of extremely poor quality.
One of the police officers who responded to the crime scene discovered two cloth *702items-a white toddler-sized T-shirt and a blue knotted bandana-in the Dunkin' Donuts plaza. The Commonwealth's theory was that the defendant was the second assailant. Based on the recordings,
The T-shirt and the bandana were tested for DNA. First, a criminologist collected two samples from the T-shirt-one from the interior of the T-shirt and one from the exterior. She also collected one sample from the bandana. Each of the samples was collected by scraping the material with a scalpel to loosen any skin cells that may have been imbedded in the fibers and then taking a swab.
For the T-shirt samples, the major profile matched the defendant's DNA profile.
The defense at trial was that the defendant was in Quincy at the time of the Easton robbery. Three witnesses testified in support of his alibi. Quincy police Officer Stephen O'Donaghue testified that he had seen the defendant, along with his friend, Mark Cram, at a street festival in Quincy sometime between 5:00 P.M. and 7:00 P.M. Cram similarly testified that he had been with the defendant at the festival until approximately 9:30 P.M., when Cram got into a fight and suffered an eye injury. According to Cram, the defendant accompanied him first to his mother's home and then to the hospital, both of which were in Quincy. Cram's mother, Marie Lawson, corroborated that the defendant had brought Cram home and had accompanied them to the hospital around 10:45 P.M.
The evidence also showed that the defendant's brother had *107been involved in a robbery in Weymouth with a similar modus operandi. In particular, a couple of months after the Easton robbery, the brother was arrested, along with another man,
Discussion. 1. Application of Morris to DNA. On appeal, we must first consider whether the principle articulated in Morris and its progeny concerning fingerprint evidence applies to the DNA evidence in this case. In Morris, the defendant was convicted of murder in the first degree and armed assault in a dwelling, based on a fatal shooting by masked intruders.
This principle applies because the presence of a fingerprint on an object alone provides insufficient data to determine *704when the fingerprint was placed on the object. United States v. Corso,
According to the testimony in this case, the same is true for DNA evidence-that is, its presence on an object alone does not provide sufficient information to determine when the DNA was deposited on the object. In fact, the testimony of the DNA analyst shows that the concerns are even more acute with regard to DNA than with regard to fingerprints. The DNA analyst testified that DNA may cling to an object for decades after it is deposited.
Given the evidence that the presence of the defendant's DNA, like the presence of a fingerprint, did not provide sufficient information to determine when the DNA was deposited on the object, we agree that Morris governs this case.
2. Sufficiency of the evidence. Applying Morris, the question then is whether the DNA evidence coupled with the other evidence presented by the Commonwealth was sufficient to allow a jury to find beyond a reasonable doubt that the defendant committed the crime. In conducting our analysis, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore,
*110Again, the decision in Morris informs our analysis. There, in addition to the thumbprint on the clown mask, the Commonwealth introduced evidence that the defendant matched the general description of one of the intruders, that the defendant's mother owned a vehicle resembling one seen fleeing the scene of the crime, and that the defendant was a known associate of two of the other intruders.
Like the clown mask with a fingerprint on it in Morris, the T-shirt and the bandana with the defendant's DNA are portable objects that suggest that the defendant, at some point, may have touched the objects.
To tie the defendant to the vehicle used by the assailants, the Commonwealth points to the evidence that the vehicle on the surveillance recording was the same make and model as the mother's vehicle, the brother used the mother's vehicle for *706the Weymouth robbery with a similar modus operandi, the brother *111often drove the mother's vehicle, and on at least two occasions the defendant was a passenger while the brother was driving. Such an attenuated connection to a vehicle involved in the robbery is not enough to support a conviction beyond a reasonable doubt.
With regard to the second assailant's profile on the surveillance footage, it shows that this assailant was likely a black man, about the same height and build as the first assailant. However, the profile on the surveillance recording is of such poor quality that it cannot reasonably be used for the fine analysis required to establish that the defendant's profile matches the profile on the recording. The still images from the surveillance recording are even grainier. Accord Commonwealth v. Pleas,
Here, taken as a whole, the evidence does not support conviction beyond a reasonable doubt. See Morris,
Judgments reversed.
Verdicts set aside.
Judgments to enter for
Trial counsel's objection, a still image from the booking recording of the defendant was shown to the jury, and the defendant was asked to stand with his profile to the jury, ostensibly to allow the jury to compare the defendant's profile to the grainy profile captured on the surveillance recording.
The mother's car was a 2005 Cadillac CTS, and an automotive expert opined that the vehicle captured on the surveillance recording was a 2004 or 2005 Cadillac CTS.
Based on the recordings, the jury could have found that the manager was mistaken that the assailants wore blue surgical masks.
The criminologist testified that there were so many stains on the T-shirt that no tests were performed to determine the DNA of the fluids on the T-shirt. The criminologist was able to test one stain on the bandana for bodily fluids; however, the test came back negative.
The frequency of occurrence of the major profile in the African-American population was one in 23.25 quadrillion; in the Asian population, one in 143.1 quadrillion; in the Caucasian population, one in 239.6 quadrillion; and in the Hispanic population, one in 29.10 quadrillion. Using an updated database from the National Institute of Standards and Technology, the statistics show that the frequency of occurrence in the African-American population was one in 25.76 quintillion; in the Asian population, one in 569.8 quintillion; in the Caucasian population, one in 500.5 quintillion; and in the Hispanic population, one in 70.22 quintillion.
The frequency of occurrence of the major profile in the African-American population was one in 260,000; in the Asian population, one in 1.588 million; in the Caucasian population, one in 4.429 million; and in the Hispanic population, one in 1.110 million.
Cram, who had consumed alcohol and then pain medication that evening, believed that it was 10:00 P . M . when they left for the hospital.
The second assailant in the Weymouth robbery was shorter and heavier than the second assailant in the Easton robbery.
Here, the Commonwealth provided no evidence suggesting more rapid DNA degradation. Cf. Diaz vs. Hughes, U.S. Dist. Ct., No. SA CV 14-1819-SJO(E),
The DNA analyst described secondary transfer as follows: (i) an individual touches one object, depositing his DNA on it; (ii) that object then contacts an "intermediary object," leaving the individual's DNA on the intermediary object; and (iii) the intermediary object then touches a third object, thereby depositing the individual's DNA on the third object.
Accord State v. Freeman,
In fact, although the presence of a fingerprint on an object suggests a particular person (the person whose fingerprint matches) touched the object, the testimony of the DNA analyst suggests that the evidence of DNA matching the defendant's DNA on the objects (without more) establishes only that the defendant may have touched something or someone that then touched the objects.
In the Weymouth robbery, another man was the leading suspect as the brother's coventurer; however, that man's physical attributes do not match the description of the second assailant in the Easton robbery.
Because we reverse the judgment on this basis, we need not address the defendant's remaining arguments.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.