Posts tagged "1108914"

Commonwealth v. Kostka (Lawyers Weekly No. 11-089-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   13-P-1576                                       Appeals Court   COMMONWEALTH  vs.  CHRISTOPHER KOSTKA. No. 13-P-1576. Suffolk.     May 9, 2014. – July 25, 2014. Present: Green, Meade, & Sullivan, JJ. Contempt.  Practice, Criminal, Contempt.  Deoxyribonucleic Acid.  Constitutional Law, Search and seizure. Search and Seizure, Buccal swab, Probable cause.  Probable Cause.  Evidence, Buccal swab, Relevancy and materiality.     Adjudication of contempt in the Superior Court Department by Jeffrey A. Locke, J., on April 9, 2013.     John H. Cunha, Jr., for the defendant. Teresa K. Anderson, Assistant District Attorney (Ursula A. Knight, Assistant District Attorney, with her) for the Commonwealth.      GREEN, J.  In Commonwealth v. Draheim, 447 Mass. 113, 119 (2006), the Supreme Judicial Court held that “so long as the Commonwealth satisfies the requirements of both the Fourth Amendment [to the United States Constitution] and Mass. R. Crim. P. 17(a)(2), 378 Mass. 885 (1979), it should be permitted the same access as defendants to potentially beneficial evidence from third parties,” including third parties who are not suspects in a crime.  Accordingly, in Draheim, the Commonwealth was allowed to obtain saliva samples from two alleged male victims of alleged statutory rapes and from two children borne by the defendant, in order to allow deoxyribonucleic acid (DNA) testing to determine whether either of the alleged victims had fathered either child. This appeal presents a variation on the theme.  Christopher Kostka (Christopher) is the twin brother of Timothy Kostka (Timothy), who has been indicted on charges of murder in the first degree and armed home invasion, arising from the stabbing death of Barbara Coyne.  The Commonwealth obtained an order from the Superior Court compelling Christopher to provide a buccal swab to allow the Commonwealth to determine whether Timothy and Christopher are identical or fraternal twins.  If (as the Commonwealth anticipates) DNA testing establishes that the two are fraternal twins, the Commonwealth proposes to use the test results to establish that biological material recovered from the victim’s fingernails must have been contributed by Timothy (and, in particular, to exclude Christopher as a possible contributor).  Christopher appeals from a judgment of contempt entered in the Superior Court, following his refusal to comply with the order.  See Lenardis v. Commonwealth, 452 Mass. 1001, 1001 (2008) (“A nonparty directed to provide evidence pursuant to [Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979),] can challenge the propriety of the order by refusing to comply […]

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Posted by Massachusetts Legal Resources - July 25, 2014 at 4:38 pm

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