Commonwealth v. Lunden (Lawyers Weekly No. 11-101-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-1953 Appeals Court COMMONWEALTH vs. STEPHEN LUNDEN. No. 13-P-1953. Middlesex. February 3, 2015. – August 10, 2015. Present: Cypher, Hanlon, & Agnes, JJ. Practice, Criminal, Collateral estoppel. Collateral Estoppel. Search and Seizure, Fruits of illegal arrest. Constitutional Law, Search and seizure. Evidence, Scientific test. Deoxyribonucleic Acid. Indictments found and returned in the Superior Court Department on September 23, 2010. A pretrial motion to suppress evidence was heard by Gary V. Inge, J., and a motion for reconsideration was considered by him. An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. Matthew Harper-Nixon for the defendant. AGNES, J. The defendant is charged in a seven count indictment that includes drug offenses and multiple charges of breaking and entering in the nighttime with the intent to commit a felony. The principal question raised by the Commonwealth’s interlocutory appeal is whether, as determined by the motion judge, the deoxyribonucleic acid (DNA) evidence that the Commonwealth proposes to offer against the defendant, which is derived from a 2007 blood sample from the defendant, must be suppressed as the “fruit of the poisonous tree,” namely, the blood sample seized unlawfully from the defendant in 2000. See Commonwealth v. Benoit, 382 Mass. 210, 214-216 (1981).[1] The essential facts are not in dispute. At the time the first blood sample was seized in September, 2000, the defendant was serving a State prison sentence for two counts of violation of civil rights with injury as a result of a 1998 conviction. At that time, G. L. c. 22E, § 3, listed thirty-three specific offenses for which a DNA sample from a convicted person then serving a sentence could be obtained. Violation of civil rights with injury was not one of the listed offenses, and thus the seizure of the defendant’s blood in 2000 was unlawful. However, three years later, the Legislature amended the statute, effective February 10, 2004, and made it applicable to “[a]ny person who is convicted of an offense that is punishable by imprisonment in the state prison.” G. L. c. 22E, § 3, as amended by St. 2003, c. 107, § 1. […]