Posts tagged "1101713"

Commonwealth v. Tassone (Lawyers Weekly No. 11-017-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       10‑P‑1923                                       Appeals Court   COMMONWEALTH  vs.  WAYNE C. TASSONE.     No. 10‑P‑1923. Berkshire.     October 11, 2012.  ‑  January 29, 2013. Present:  Kantrowitz, Sikora, & Rubin, JJ.   Robbery.  Assault and Battery.  Deoxyribonucleic Acid.  Constitutional Law, Confrontation of witnesses.  Evidence, Identity, Expert opinion, Grand jury proceedings.  Witness, Expert.  Grand Jury.  Practice, Criminal, Confrontation of witnesses, Assistance of counsel.       Indictments found and returned in the Superior Court Department on July 24, 2009.   The cases were tried before John A. Agostini, J.     William W. Adams for the defendant. Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.     RUBIN, J.  The defendant was convicted of unarmed robbery and assault and battery arising out of the robbery of a variety store in Pittsfield.  The defendant’s primary defense was mistaken identity.  A pair of eyeglasses, identified as the defendant’s, was found at the scene.  His counsel argued that the defendant’s brother, who owned a similar pair of eyeglasses, had committed the robbery.  The defendant’s primary argument here is a challenge under the confrontation clause of the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), to the expert testimony here of a chemist at the State police crime laboratory comparing the results of an analysis of deoxyribonucleic acid (DNA) taken from the defendant prepared by the State police crime laboratory with an analysis of DNA found on the eyeglasses prepared by Orchid Cellmark (Cellmark), a commercial DNA testing facility in Dallas, Texas.  The argument in essence is that testimony by an expert comparing these two DNA analyses is improper, and that the confrontation clause requires that the defendant have an opportunity to cross-examine the analysts who prepared these DNA reports.   This case is controlled by the United States Supreme Court’s recent decision in Williams v. Illinois, 132 S. Ct. 2221 (2012) (Williams).  In Williams, the Court decided an almost identical case in which an expert testified comparing a DNA profile from a sample of the defendant’s blood with a DNA report generated by Cellmark from semen found on the victim of a rape.  The Supreme Court was divided in that case.  A plurality of four justices concluded that the expert did not testify to the truth of the underlying analysis, […]

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Posted by Massachusetts Legal Resources - January 30, 2013 at 5:23 am

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