Commonwealth v. DiCicco (Lawyers Weekly No. 10-030-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 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. 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 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 […]