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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.
2

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

 

1 Eric Carita is employed as a forensic science examiner in 

the nuclear deoxyribonucleic acid (DNA) casework unit at the 

Connecticut State laboratory. He has worked at that laboratory

since 2003. Carita was the second DNA analyst that the 

defendant retained to examine the results of the DNA testing.

2 "A DNA profile for an individual is that combination of 

alleles, or versions of genes, possessed by the individual at 

the loci tested." Commonwealth v. Gaynor, 443 Mass. 245, 248 

n.1 (2005).
3

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 

decision and order. In an unpublished memorandum and order 

pursuant to its rule 1:28, the Appeals Court affirmed the 

denial. See Commonwealth v. DiCicco, 84 Mass. App. Ct. 1128 

(2014). We granted the defendant's application for further 

appellate review and conclude that the motion judge did not 

abuse her discretion in determining that, under Commonwealth v. 

Lanigan, 419 Mass. 15, 25-26 (1994), Carita's opinion was not 

sufficiently reliable to be placed before a jury, and the 

defendant's motion for a new trial was properly denied.

Background. We consider the facts as set forth in the 

motion judge's findings after an evidentiary hearing, which are 

supported by the evidence in the record.4 See Commonwealth v. 

Stephens, 451 Mass. 370, 372 (2008).

1. Evidence at the 1984 trial. In August, 1983, the 

victim was walking home through a parking lot in Waltham 

 

3 Christine Lemire is employed as a DNA analyst with the 

Massachusetts Forensic Technology Center (also commonly known as 

the State police crime laboratory [crime laboratory]). She has 

worked at that laboratory since 1996.

4 See note 22, infra.
4

sometime after 1:30 A.M. when she was attacked by two men. One 

of these men, later identified as Vincent Park,5 grabbed the 

victim and forced her to the ground. While Park pinned the 

victim down, the second man, subsequently identified as the 

defendant, pulled the victim's jeans and underwear down to her 

ankles. As she struggled, the second man raped her vaginally. 

The first man called the second man "Chick" and said something 

about his "turn."

While the rape was occurring, a van entered the parking lot 

and illuminated the area with its headlights such that the 

victim could see the second man. This man then stood up and 

urinated on and around the victim. The two men then ran from 

the parking lot with the van in pursuit. The victim had trouble 

getting up because she kept slipping on the urine, but on doing 

so, she ran to a telephone booth and called her father. The 

police were called and the victim went to the hospital, where 

evidence was collected and the victim was interviewed. Two 

hours after the rape, the victim told police that she thought 

she had seen the second man before and that his name was Robert 

or "Chico." Additionally, she provided the police with a 

physical description of the second man. The police took the 

 

5 Vincent Park was later charged with aggravated rape, but 

was found not guilty by reason of lack of criminal 

responsibility.
5

evidence, including the victim's clothing, when leaving the 

hospital.

Later that morning, the victim went to the police station, 

looked through two books of photographs, and positively 

identified the defendant as the person who had raped her. The 

police located the defendant at a local shelter at 6:45 A.M. 

Although the defendant had been scheduled to be at the shelter 

the previous night, he did not arrive until shortly before the 

police looked for him there. The defendant fit the description

of the second man provided by the victim. At trial, the victim 

identified the defendant again.

At trial, the parties stipulated that Mark Grant, a State 

police chemist, would testify to facts contained in his October, 

1983, report, that chemical tests conducted on a stain on the 

victim's underwear did not exclude the defendant as the source, 

but were inconclusive as to anything further. The tests, 

conducted both on the stain and on a vaginal smear slide taken 

from the rape kit administered to the victim after the attack, 

were positive for the presence of a substance characteristically 

found in semen, but no sperm cells were found.

The defendant was convicted and sentenced to a term of not 

more than twenty years or less than eighteen years in State 

prison. On April 26, 1985, the Appeals Court affirmed the 

defendant's conviction, Commonwealth v. DiCicco, 19 Mass. App. 
6

Ct. 1115 (1985). After completing his sentence, the defendant 

was found to be a sexually dangerous person and was committed to 

the Nemansket Treatment Center at Bridgewater.

2. Postconviction proceedings. In January, 2006, after 

the Superior Court clerk's office located the trial exhibits,6

the defendant filed a motion for necessary access to test 

evidence for DNA, a motion for funds to do comparison DNA 

testing, and a request for discovery and access to the smear 

slide. These motions were granted subject to the parties' 

filing a stipulation as to protocols for handling and testing 

the DNA evidence and subject to the availability of the smear 

slide.7

In July, 2006, the defendant's motion for funds for a 

defense expert, Thomas Fedor of the Serological Research 

Institute, to observe the inventory and evidence assessment at 

the crime laboratory was granted. Later that month, the 

Commonwealth filed a stipulation for release and testing of the 

evidence, wherein the parties agreed that portions of the 

victim's jeans and underpants would be released for testing. 

This stipulation was approved and Fedor was present in November,

2006, when the clothing was examined at the crime laboratory.

 

6 Originally the Superior Court clerk's office in Middlesex 

County had indicated that the exhibits were "gone, destroyed."

7 The vaginal smear slide had been lost, and therefore was 

not available for testing in 2007 and 2008.
7

a. Results of the crime laboratory DNA testing. In 

December, 2006, the victim's clothing was examined at the crime 

laboratory. No sperm cells or seminal fluid residue was 

detected in the stains on the victim's underpants. Several

stains were observed on the exterior and interior of the jeans, 

and sperm cells were detected in three of them. Cuttings were 

then taken from these three stains (stains 9, 13, and 14). Only 

stains 13 and 14 are relevant on appeal.8,9

The crime laboratory10 extracted DNA from the above 

mentioned cuttings and performed short tandem repeat (STR)

 

8 The analysis of stain 9 by the crime laboratory resulted 

in a finding of "insufficient DNA" for comparison in both its 

sperm and nonsperm fractions. Carita does not offer an opinion 

as to stain 9.

9 The samples provided to the defense were subsequently 

tested by Orchard Cellmark (Cellmark), see infra.

10 Laboratories that analyze DNA samples for forensic 

casework purposes are required by the Quality Assurance 

Standards for Forensic DNA Testing Laboratories to "establish 

and follow documented procedures for the interpretation of DNA 

typing results and reporting." The Scientific Working Group DNA 

Analysis Methods (DNA working group), a group of individuals 

authorized by Congress to advise the Federal Bureau of 

Investigation on DNA testing, has promulgated interpretation 

guidelines that are generally accepted in the community of 

forensic DNA analysts. The crime laboratory has adopted the DNA 

working group's Y-STR guidelines, and analysts conducting Y-STR 

analysis are required to comply with these protocols. The DNA 

working group's guidelines recommend the establishment of 

certain thresholds in the interpretation of Y-STR DNA results.
8

testing/typing (specifically Y-STR testing)

11 on stains 13 and 

14. The Y-STR DNA testing is conducted first by subjecting the 

sample to a process of "differential extraction" which separates 

any sperm cells (sperm fraction) from epithelial cells (nonsperm 

fraction). On stain 13, the crime laboratory concluded that the 

defendant was excluded as the source of the nonsperm fraction

DNA,

12 but that there was insufficient DNA for analysis in the 

sperm fraction, as the only result was a single "potential 

allele," falling below the threshold at which alleles can be 

positively identified, at Locus DYS456.13 As for stain 14, the 

 

11 Short tandem repeat (STR) testing focuses on different 

places (loci) on the human genome where certain known sequences 

of DNA base pairs repeat themselves. The repeat sequences at a 

particular locus are called alleles. Analysts measure the 

number of times these repeat sequences occur in a forensic DNA 

sample to determine whether the sample matches the subject's DNA 

profile. Y-STR typing is a technique by which analysts separate 

male DNA from female DNA and focus only on the male fragment.

12 Alleles were identified ("called") at seven loci and 

potential alleles were identified at an additional four loci.

13 Consistent with DNA working group's Y-STR guidelines, the 

crime laboratory conducted validation studies to help establish 

certain thresholds for use in the interpretation of Y-STR DNA 

results. Based on the data generated in these validation 

studies, the crime laboratory established a "noise threshold," 

which is "based on signal-to-noise analysis internally derived 

from empiric data." The noise threshold at the crime laboratory 

was established at fifty-five relative fluorescent units (RFUs). 

The crime laboratory also established a "call threshold," which 

is the level at which the laboratory would identify or report a 

peak as an allele given the strength of the result. The call 

threshold at the crime laboratory was established as three times 

the noise threshold, or 165 RFUs. Pursuant to the crime 

laboratory's protocol, peaks below the call level, but above the 
9

crime laboratory concluded that there was a mixture of more than 

one male source in the nonsperm fraction, which yielded 

inconclusive results for comparison with the defendant's DNA, 

that is, he could not be included or excluded as one of the 

contributors. With respect to the sperm fraction, there was 

insufficient DNA for analysis.

b. Motion for postconviction relief. In November, 2007, 

the defendant filed a motion for postconviction relief, arguing 

that the results of the comparative DNA testing done by the 

crime laboratory exonerated him. In March, 2008, the defendant 

filed a substitute motion for funds and access to do comparison 

DNA testing by the defendant's expert, or, in the alternative, 

for further testing by the Commonwealth and for funds for 

observation of such testing by the defendant's expert.14 On 

September 24, 2008, after a hearing, the judge allowed the 

defendant's motion for funds to have Cellmark take custody of 

 

noise level, are called "potential alleles," and are designated 

by an asterisk symbol and a number. Both called and potential 

alleles are "then checked by two DNA analysts to verify that the 

resulting peaks are found in the correct horizontal location 

('binned' correctly) and are shaped correctly (have good 'peak 

morphology') and are not artifacts." The single potential 

allele detected in the crime laboratory's testing of the sperm 

fraction of stain 13 was approximately seventy RFUs, just over 

the noise threshold established by the laboratory, and 

significantly below the call threshold of 165 RFUs.

14 In support of this motion, the defendant submitted an 

affidavit of Thomas Fedor.
10

the useable samples from the crime laboratory and subject them 

to further DNA testing.

With respect to stain 13, Cellmark concurred with the crime 

laboratory's conclusion as to the nonsperm fraction, that the 

defendant was excluded as the source. With respect to the sperm 

fraction, where the crime laboratory testing had revealed a 

single potential allele, insufficient for analysis, Cellmark's 

testing detected no male DNA at all. Cellmark's testing of the 

stain 14 sample also detected no male DNA in the sperm fraction, 

and concurred with the crime laboratory that the defendant could 

not be excluded as a contributor of the male DNA detected in the 

nonsperm sample.

In March, 2010, the defendant filed a document entitled,

"Submission of New Forensic Analysis and Motion for Immediate 

Relief," together with an affidavit of Carita. The defendant

had retained Carita to review the test data from the analyses of 

the crime laboratory and Cellmark. In his affidavit, Carita

stated an opinion that excluded the defendant as the source of 

DNA found in both stain samples (13 and 14) taken from the 

victim's jeans. The Commonwealth filed an opposition to the 

defendant's motion along with an affidavit of Lemire. In April, 

2010, the judge found that, notwithstanding certain limitations, 

the Carita affidavit stated an opinion that might be admissible 

in evidence. Accordingly, she ordered an evidentiary hearing, 
11

explaining that the defendant would have the burden of 

establishing both the admissibility of Carita's opinion and that 

any DNA evidence that would be admissible satisfied the standard 

for a new trial.

3. Evidentiary hearing. A two-day evidentiary hearing was 

held, at which both Carita and Lemire testified15 and the 

laboratory reports were admitted in evidence.

a. Carita's testimony. Consistent with his affidavit,

Carita testified that the defendant was excluded as the donor of 

DNA extracted from the nonsperm fractions of stains 13 and 14. 

Although both laboratory reports and Lemire concurred that the 

defendant was excluded as the source of the nonsperm fraction of 

 

15 At the hearing, the defendant did not call Fedor, his 

previous expert, as a witness, but stated that he was relying 

solely on the test results of the crime laboratory and Cellmark, 

along with Carita's testimony. Until he filed the Carita 

affidavit in March, 2010, the defendant had relied on an 

affidavit submitted by Fedor. Fedor did not personally analyze 

the DNA, but he had reviewed the test data from the crime 

laboratory. Fedor agreed with the crime laboratory that the 

defendant was excluded as the source of the DNA on the nonsperm 

fraction of stain 13. He disagreed, however, with the crime 

laboratory's conclusion that there was insufficient data to 

include or exclude the defendant as the source of the DNA from 

the nonsperm fraction of stain 14, concluding that the defendant 

was excluded as its source. Fedor did note that, "[a]dmittedly, 

there is the problem of 'extraneous DNA,'" but qualified this 

statement given his speculation that the cuttings were taken 

from the area of the victim's jeans that would have been 

"potentially soaking in the assailant's urine." Fedor did not 

address the crime laboratory's conclusion that the partial DNA 

profile obtained from stain 14 indicated the presence of more 

than one source. The record does not indicate that Fedor drew 

any conclusions regarding the sperm fractions of either cutting.
12

stain 13, only Carita testified that the defendant was also 

excluded as the donor of DNA extracted from the nonsperm 

fraction of stain 14. Although he agreed with the crime 

laboratory (and Cellmark) that the DNA from the nonsperm 

fraction of stain 14 was a mixture from more than one male, 

Carita based his opinion of exclusion on the fact that "two 

possible genetic markers" identified by the crime laboratory as 

potential alleles at one location (DYS458) were inconsistent 

with the defendant's allele at that location.16 Additionally, 

Carita testified that the defendant also was excluded as the 

donor of the DNA extracted from the sperm fraction of stain 13. 

His opinion was based on the single potential allele, measured 

at approximately seventy relative fluorescent units (RFUs), at 

DYS456, far below the "call" threshold of 165 RFUs established 

by the crime laboratory. See notes 12 and 13, supra.

Carita acknowledged in his testimony that his opinion was 

not in accord with the crime laboratory's Y-STR interpretive 

guidelines, and offered no evidence that the Scientific Working 

Group DNA Analysis Methods (DNA working group) Y-STR guidelines 

explicitly permit an exclusion to be based on a single potential 

allele. He contended, however, that his conclusions were 

nevertheless permissible under the provisions of the DNA working 

 

16 Both the crime laboratory and Cellmark had concluded that 

there was insufficient data to render such a conclusion.
13

group's Y-STR guidelines, which state that "the interpretation 

of the results of casework is a matter of professional judgment 

and expertise . . . not every situation can or should be covered

in a preset rule." Carita went on to testify that he relied on 

the Connecticut State laboratory interpretive guidelines, which 

bind him in his consulting work, to form his opinion, but these

were not introduced in evidence.

b. Motion judge's ruling. After hearing, the judge ruled 

that, given the limited data from the low-level DNA procured 

from the victim's clothing, Carita's opinions with respect to 

the sperm fraction of stain 13 and the nonsperm fraction of 

stain 14, which were based exclusively on potential alleles,

were not sufficiently reliable to be placed before a jury. With 

respect to the sperm fraction of stain 13, the judge found that 

Carita cited no authority for the proposition that an exclusion 

may be based on a single potential allele in the absence of any 

other data, and that the potential allele on which he relied did

not meet "the requirements of the laboratory's calling 

threshold, which gives absolute confirmation that a genetic 

marker is DNA and not a possible artifact." The judge also 

found that although Carita agreed that the detected DNA in the 

nonsperm fraction of stain 14 was a mixture, he cited no 

authority for the proposition that an exclusion may be based on 

two potential alleles at one locus in such a mixed sample where 
14

the possibility of stutter17 cannot be eliminated. Although the 

judge acknowledged that it is permissible to use potential 

alleles in the interpretation of a DNA profile, "[i]n this case 

. . . given the minimal amount of DNA, Carita is not using 

potential alleles to interpret results. His opinions are based 

solely on peaks identified as potential alleles in the context 

of very limited data obtained from low-level DNA."18

After concluding that Carita's opinions with respect to the 

sperm fraction of stain 13 and the nonsperm fraction of stain 14 

would not be admitted in evidence, she went on to find that the 

newly discovered DNA evidence which would be admissible lacked 

the materiality, weight, and significance necessary to 

demonstrate that it would likely have been a real factor in the 

jury's deliberations.

Discussion. "Motions for a new trial are addressed to the 

'sound discretion' of the trial judge." Commonwealth v. 

DiBenedetto, 458 Mass. 657, 663-664 (2011), citing Commonwealth

v. De Christoforo, 360 Mass. 531, 542 (1971). See also Mass. R. 

 

17 Stutter, "a very common artifact," is a byproduct of the 

process used to amplify DNA and will result in peaks that occur 

before and after a real peak. Accordingly, stutter peaks may 

mask true peaks.

18 In making her findings, the judge pointed out that the 

findings in the report of Cellmark, an independent laboratory 

hired by the defendant, were consistent with the crime 

laboratory findings in all material respects, and both stood in 

stark contrast to Carita's opinion as to the adequacy of the 

data to make an exclusion.
15

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). "Judges 

are to apply the standard set out in Mass. R. Crim. P. 30 (b) 

rigorously," and "grant such a motion only if it appears that 

justice may not have been done" (quotations and citations 

omitted). Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). 

"[A]n appellate court will examine the motion judge's conclusion 

only to determine whether there has been a significant error of 

law or other abuse of discretion." DiBenedetto, 458 Mass. at 

664, quoting Commonwealth v. Wolinski, 431 Mass. 228, 235 

(2000).

1. The exclusion of Carita's opinion. In Lanigan, 419 

Mass. at 25-26, we adopted, in part, the standard for the 

admissibility of expert testimony delineated by the United 

States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 

Inc., 509 U.S. 579 (1993). In so doing, we held that "a 

proponent of scientific opinion evidence may demonstrate the 

reliability or validity of the underlying scientific theory or 

process by some other means, that is, without establishing 

general acceptance," Lanigan, supra at 26, as "the touchstone 

of admissibility is reliability, and not necessarily general 

acceptance within the scientific community." Commonwealth v. 

Vao Sok, 425 Mass. 787, 796 (1997), quoting Commonwealth v. 

Sands, 424 Mass. 184, 185-186 (1997). However, we noted that, 

"in most cases general acceptance will be the significant, and 
16

'often the only, issue.'" Canavan's Case, 432 Mass. 304, 310

(2000), quoting Lanigan, supra. Accordingly, "a party seeking 

to introduce scientific evidence may lay an adequate foundation 

either by establishing general acceptance in the scientific 

community or by showing that the evidence is reliable or valid 

through an alternate means." Canavan's Case, supra.

Under Daubert-Lanigan, the motion judge, in her role as 

gatekeeper, "has a significant function to carry out in deciding 

on the admissibility of a scientific expert's opinion." 

Lanigan, 419 Mass. at 25. Conclusions based on personal 

observation or clinical experience are subject to this analysis. 

Canavan's Case, 432 Mass. at 313. The expert's opinion must 

"have a reliable basis in the knowledge and experience of his 

discipline," Daubert, 509 U.S. at 592, and the motion judge must 

assess "whether the reasoning or methodology underlying [an 

expert witness's] testimony is scientifically valid and whether 

that reasoning or methodology is properly applied to the facts 

in issue." Lanigan, supra at 26, quoting Daubert, supra at 592-

593.

Accordingly, if the process or theory underlying an 

expert's opinion lacks sufficient reliability or an expert 

cannot provide a reliable factual basis for his conclusions, the 

trial judge must exclude the opinion from reaching the trier of 

fact. Lanigan, 419 Mass. at 25-26. See Canavan's Case, 432 
17

Mass. at 315.

19 The defendant, as the proponent of the expert 

testimony at issue, has the burden to establish that Carita's 

opinion is reliable. See Commonwealth v. Sliech-Brodeur, 457 

Mass. 300, 328 n.41 (2010), citing Canavan's Case, 432 Mass. at 

314. We review a judge's determination to admit or exclude 

expert testimony under Daubert-Lanigan for an abuse of 

discretion. Commonwealth v. Vasquez, 462 Mass. 827, 844 (2012). 

Commonwealth v. Pytou Heang, 458 Mass. 827, 844 (2011). As we 

have held previously, "the admissibility of DNA test results 

should be determined on a case-by-case basis." Commonwealth v. 

Mathews, 450 Mass. 858, 871 (2008), citing Commonwealth v. 

Curnin, 409 Mass. 218, 222 (1991).20

a. Stain 13. The defendant argues that Carita's opinion

regarding the sperm fraction of stain 13 is admissible for a few 

reasons. First, he contends that the opinion meets the DaubertLanigan standard as it is "based on reliable data from which 

[Carita] drew a logical conclusion." The defendant notes that 

the motion judge never found that the potential allele found in 

 

19 See Mass. G. Evid. § 702 (2014) (expert opinion may be 

given if "[a] the testimony is based upon sufficient facts or 

data, [b] the testimony is the product of reliable principles 

and methods, and [c] the witness has applied the principles and 

methods reliably to the facts of the case").

20 "[A] judge's determination on the reliability of 

scientific testimony is no different from other evidentiary 

decisions by a trial judge that are reviewed on appeal under an 

abuse of discretion standard of review." Canavan's Case, 432 

Mass. 304, 311 (2000).
18

the sperm fraction of stain 13 was unreliable. Further, both 

Carita and Lemire testified that potential alleles were used in 

the work of DNA analysts. Both individuals additionally agreed 

that the potential allele was correctly designated and that it 

had the hallmarks of correct binning and good peak morphology. 

See note 13, supra. Moreover, the potential allele occurred at 

a smaller locus, making it more efficiently amplified and, the 

defendant contends, reliable. The defendant argues that 

excluding Carita's opinion because of factors such as potential 

DNA degradation21 is improper, as both experts agreed that 

degradation would not change the defendant's allele at DYS456.

Second, the defendant argues that Carita's opinion was 

reasonable, and that Carita's reliance on a single potential 

allele is "merely application of accepted methodology to a 

specific context." He contends that Carita did follow the Y-STR 

interpretation guidelines set forth by the DNA working group, as 

promulgated in January, 2009, which state that interpreting

evidence is a matter of "professional judgment and expertise" 

and "[n]ot every situation can or should be covered by a preset 

rule." Further, the defendant contends that Carita's conclusion 

 

21 As the motion judge found, degradation "relates to the 

DNA molecule breaking up . . . over time," or due to exposure to 

certain other factors. A proper environment for DNA storage is 

in breathable material (e.g., paper) and in a cool, dark, dry

environment. Degradation of DNA can occur as a result of 

ultraviolet light, chemicals, or microbes, in addition to 

improper packaging and handling.
19

aligns with § 1.1.1.1. of the DNA working group's Y-STR 

guidelines, which states that the "analytical thresholds are 

defined as the minimum and maximum intensity thresholds between 

which data are reliable for use in allele designations." 

Accordingly, he contends that the lack of a specific DNA working 

group guideline governing exclusion on single potential alleles 

is of no import.

Last, the defendant argues that the motion judge 

misunderstood her gatekeeping role under Daubert-Lanigan. He

contends that the motion judge's issue with Carita's 

interpretation of the data and her concerns over factors such as 

possible degradation ought to have gone only to the opinion's

weight, rather than its admissibility, and remained a question 

for a jury to determine.

After reviewing the record before the judge below, we 

cannot say that she abused the discretion afforded to her under 

Daubert-Lanigan in excluding Carita's testimony. Carita's 

opinion that the defendant was excluded as the contributor of 

the sperm fraction of stain 13 was based solely on a single

below-threshold peak. He acknowledged that this potential 

allele did not meet the crime laboratory's calling threshold, 

which would have provided "absolute confirmation that a genetic 

marker is DNA and not a possible artifact," but nevertheless was 
20

"probably true" DNA.22 Although it is undisputed that such 

potential alleles may be used for interpretational purposes 

along with other data when examining an individual's DNA 

profile, it was not an abuse of discretion to find that, in the 

absence of any authority substantiating Carita's opinion, a 

single potential allele without any other data is not enough to 

exclude an individual. As Lemire testified, "[T]here's just not 

enough data . . . to generate any comparison . . . ."

Based on the record on appeal, Carita provided virtually no

support for his opinion except to testify that the DNA working 

group does not explicitly prohibit this practice and that he

once before had rendered a similar exclusion opinion based on a 

single potential allele. Aside from this testimony, the 

defendant offered no evidence to establish that Carita's opinion 

was generally accepted by the relevant scientific community or 

otherwise was sufficiently reliable. Carita cited to no 

scientific authority, in either his affidavit or in his hearing 

 

22 The motion judge appears to have erred in her finding

that Carita admitted that he had not complied with DNA working 

group guidelines in reaching his opinion. Although it is 

accurate that Carita did not comply with the crime laboratory's 

protocols that had been promulgated in accord with the DNA 

working group's advice that each laboratory "prepare guidelines 

for formulating conclusions resulting from comparisons of 

evidentiary samples and known reference samples," see § 4.1 of 

the DNA working group's Y-STR guidelines, he did not violate any 

explicit DNA working group provision. However, this fact does 

not change our over-all assessment that, for a myriad of other 

reasons, the judge did not abuse her discretion in ruling 

Carita's opinion inadmissible.
21

testimony, to support his ultimate conclusion, instead relying 

solely on his "judgment and expertise."23 Nor did the defendant 

supply the judge with written guidelines for Carita's laboratory 

in Connecticut or any other laboratory which supported the 

reliability of Carita's opinion. See Canavan's Case, 432 Mass. 

at 315, quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157

(1999) (no rule requires court "to admit opinion evidence that 

is connected to existing data only by the ipse dixit of the

expert").

Carita pointed to no error in Lemire's analysis and did not 

challenge Cellmark's conclusions that it found no DNA at all in 

the sperm fraction of stain 13. Although it is accurate that 

Lemire agreed that the potential allele in question was likely 

real human DNA, she explained that, under the DNA working group

and the crime laboratory's protocols, she could not confirm this 

conclusion, as the potential allele registered below the call 

threshold and she had no other results to interpret. She 

explained that although the peak in question resembled real DNA, 

it could have just been noise given its registration below the 

 

23 In support of Carita's opinion, the defendant's brief

cites to a single article entitled "DNA for the Defense Bar," 

issued by the Department of Justice's National Institute of 

Justice (2012), which was not before the motion judge and to 

which the Commonwealth objects. The defendant neither argues 

that this publication qualifies as a learned treatise nor that 

it would have been admissible at the evidentiary hearing. As 

such, it does not affect our calculus as to whether the judge 

abused her discretion in deeming Carita's opinion inadmissible.
22

call threshold. Further, while acknowledging that a potential 

allele may be used for interpretation, Lemire repeatedly 

testified that in order to use potential alleles below threshold 

in her analysis she would need additional information at any 

given profile in order to utilize that information for an 

interpretation.24 This was all the more convincing to the judge 

given Lemire's testimony that the tested sample is "low template 

DNA," and it is possible that inhibition25 and degradation may 

have been factors in the sample.26

b. Stain 14. The defendant also argues that Carita's 

opinion regarding the nonsperm fraction of stain 14 ought to be

admissible. Testing indicated that this fraction was likely a 

 

24 The defendant takes issue with the fact that Lemire used 

alleles below threshold to support a conclusion of inclusion in 

her testimony in a different case. However, there, unlike here, 

Lemire had "additional information beyond simply . . . a 

potential allele below threshold" to aid her analysis. The 

judge concluded that the cases were sufficiently dissimilar such 

that Lemire's conclusions are not inconsistent.

25 As the motion judge found, inhibition "relates to the 

ability to generate an STR profile." In the quantification 

system, there is an internal positive control that is used as an 

indicator as to "whether inhibitors or chemicals or anything 

intrinsic to the DNA . . . sample may be compromising or not 

allowing the method to work effectively." However, even where 

inhibition is not detected at the quantification stage, it may 

be present at different sites and affect the analysis.

26 Although Carita testified that he saw no evidence of 

these factors in the sample, he also qualified his testimony to 

state that the sample involved a very small amount of DNA, so he 

could see no appearance of inhibition, and "the profile's too 

low to determine whether there could or could not have been 

degradation."
23

mixture of DNA from more than one male. Data were retrieved at 

just four loci and only two alleles (out of a potential 

seventeen or eighteen) were called. Of these two called 

alleles, one at DYS393 matched the defendant, while the other at 

DYS389I was inconsistent with his profile. Two other potential 

alleles (one at DYS389I and the other at DYS391) were also 

consistent with the defendant. Of chief significance to 

Carita's opinion was the identification of two additional 

potential alleles at another locus, DYS458, which did not match

the defendant. Lemire and Carita agreed that the presence of 

these two potential alleles at the same location likely

indicated a mixture of DNA from more than one source. Carita, 

however, inferred from these two potential alleles that the 

defendant definitively could be excluded as the contributor of

the nonsperm fraction of stain 14. Lemire, on the other hand, 

testified that the data obtained were insufficient for 

comparison. Cellmark's test results agreed with Lemire's 

conclusion.

As with the sperm fraction from stain 13, discussed above, 

we cannot say that it was an abuse of discretion for the judge 

to rule Carita's opinion inadmissible. As an initial matter, 

the two potential alleles at DYS458 that form the basis of 

Carita's opinion were just fifteen RFUs above the crime 

laboratory's noise threshold. Lemire testified that sufficient 
24

DNA was not found such that one could eliminate the possibility 

of "stutter" from this mixed sample.

27 She explained that the 

two potential alleles in question, at just fifteen RFUs, gave 

rise to the possibility of a peak which would be consistent with 

the defendant's known DNA profile at DYS458 in a "stutter"

position.28 She explained that if there were sufficient DNA in 

the sample, which there was not, an analyst could determine 

whether there was DNA present from something other than a

stutter artifact. However, Lemire explained that here the 

defendant could not be excluded because the data were too 

limited to evaluate whether there was something more than

stutter present.29 Carita testified that "there was no stutter 

available for evaluation," as it was a "low-level sample."

The appellate record is devoid of any reliable authority to

support Carita's conclusion that an individual can be excluded 

 

27 In mixed samples, stutter and alleles can overlap, 

thereby complicating interpretation.

28 Stutter occurs when, during the amplification process, a 

fragment one repeat unit smaller or larger than the true allele

is produced. As a result, stutter generates a peak that is

actually one repeat unit off from the main peak. A stutter 

artifact of a 15 allele (such as that of the defendant at the 

DYS458 locus) could appear at a 16 allele because of the stutter 

effect. See note 17, supra.

29 Lemire testified that, according to the crime 

laboratory's Y-STR guidelines, had there been peaks present 

above the call threshold at this loci she would have been able 

to evaluate whether the potential alleles at fifteen RFUs were 

more than just stutter.
25

as a donor based on these two potential alleles that (1) are in 

a low-level mixed sample, (2) register merely fifteen RFUs above 

the noise threshold, and (3) may represent a stutter peak. He

does not point to any DNA working group or crime laboratory 

guideline or other scientific authority that permits his 

conclusion. Carita did not merely use these potential alleles 

to aid in his over-all interpretation of a DNA profile, but 

instead he made below-threshold peaks the sole basis for his 

opinion.

2. Admissible evidence as factor in jury deliberations. 

We also must consider whether the defendant has established that 

the DNA evidence that is admissible casts meaningful doubt on 

the justice of his conviction. See Commonwealth v. Grace, 397 

Mass. 303, 305 (1986); Mass. R. Crim. P. 30 (b) ("trial judge 

. . . may grant a new trial at any time if it appears that 

justice may not have been done"). See also Commonwealth v. 

Cintron, 435 Mass. 509, 516 (2001), overruled on other grounds 

by Commonwealth v. Hart, 455 Mass. 230 (2009); Commonwealth v. 

Pike, 431 Mass. 212, 218 (2000).

The relevant question is not whether the verdict would have 

necessarily been different, but "whether the new evidence would 

probably have been a real factor in the jury's deliberations." 

Grace, 397 Mass. at 306. Additionally, the new evidence must 

demonstrate such materiality, weight, and significance that the 
26

motion judge could find that "there is a substantial risk that 

the jury would have reached a different conclusion had the 

evidence been admitted at trial." Id. As rule 30 (b) motions 

are attacks on final decisions, they are "granted only in 

extraordinary circumstances," Commonwealth v. Comita, 441 Mass. 

86, 93 (2004), and the defendant has the burden of producing a 

"credible reason" to reverse the final decision that "outweighs 

the risk of prejudice to the Commonwealth." Commonwealth v. 

Lopez, 426 Mass. 657, 662 (1998), quoting Fanelli, 412 Mass. at 

504.

Both the crime laboratory and Cellmark agreed that the 

defendant was excluded as the source of the DNA recovered from 

the nonsperm fraction of stain 13. The defendant argues that 

this stain must have been deposited by the assailant's urine at 

the time of the attack, by virtue of the victim's trial 

testimony that the assailant urinated "on and around me" and 

that she slipped in urine while attempting to stand.30 

Accordingly, the defendant argues that because these cells 

 

30 Although urea, a substance typically found in urine, was 

not detected in the sample, the defendant argues that this 

substance might have dissipated in the intervening twenty-three 

years between when the pants were collected in evidence and when 

they were submitted for DNA testing. We note that this is 

possible, as a crime laboratory's chemist averred in her report 

that the failure to detect semen and urine is unremarkable as 

such fluids do not have cell walls and break down more easily 

than epithelial cells.
27

indisputably do not belong to him, he could not have been the 

assailant.

However, as noted by the judge, there is no scientific 

method of ascertaining whether these cells were deposited by the 

assailant or by any one of the many individuals who handled the 

evidence after the commission of the crime. The pants in 

question were taken from the victim at the hospital, turned over 

to the police, and admitted in evidence at trial. For over 

twenty years the evidence was indisputably stored in plastic 

bags, an environment incapable of protecting against 

contamination.31 The defendant's argument that the epithelial 

cells present in stain 13 necessarily came from the assailant's 

urine is a statement of conjecture, at best.

It remains the defendant's burden to demonstrate the 

importance of newly available evidence, see Grace, 397 Mass. at 

306, and there is simply no way of determining when and under 

what circumstances the male DNA obtained from the nonsperm 

fraction of this stain was deposited. Lemire specifically

testified that she was unable to draw any conclusions as to the 

time or manner by which the DNA was deposited and she had no 

scientific way of assessing whether the evidence had been 

 

31 The crime laboratory's DNA Y-STR report states, 

"[e]xtraneous DNA may be present on common articles such as 

clothing, shoes, etc. This extraneous DNA often manifests 

itself as a low level minor male contributor in a DNA result, 

and may have no probative value in a case."
28

contaminated prior to its arrival at the crime laboratory. 

Accordingly, the judge could not determine whether the exclusion 

of the defendant as the contributor of this DNA had any 

significant probative value, thereby diluting the defendant's 

argument of materiality and undermining claims that the jury 

would have reached a different conclusion had the evidence been 

admitted at trial.

In sum, the newly available, admissible evidence would have 

shown that (1) the DNA, if any, contained in the sperm cells of 

both stains and the nonsperm cells of stain 14 were insufficient 

to either include or exclude the defendant as their donor; and 

(2) it is not possible to determine the significance of the fact 

that the defendant was excluded as a source of the nonsperm 

cells in stain 13. We agree with the judge that this evidence 

would not be capable of casting meaningful doubt on the jury's 

verdict that the defendant was the perpetrator of the rape.

3. Additional expert funds. The defendant first filed a 

motion for funds to do comparison DNA testing in January, 2006. 

In May of that year, the motion was granted in the amount of 

$4,000. Subsequently, in July, 2006, the defendant filed a 

motion for funds in the amount of $5,000 for his defense expert 

at the time (Fedor) to observe the inventory and assessment of 

evidence at the crime laboratory. This motion was granted.
29

Nearly two years later, in March, 2008, the defendant filed 

a substitute motion for funds and access to do comparison DNA 

testing by the defendant's expert, or, in the alternative, for 

further testing by the Commonwealth and for funds for 

observation of such testing by the defendant's expert. A second 

motion for funds was filed in September, 2008, and the judge 

permitted the defendant's motion in the amount of $6,575 to have 

Cellmark take custody of usable samples from the crime 

laboratory and subject them to independent DNA testing.

In October, 2009, the defendant moved for funds in the 

amount of $5,500 for the attendance of Fedor and "a like amount" 

for the attendance of a representative from Cellmark at an 

evidentiary hearing. As of March, 2010, the motion judge did 

not believe, based on the record as it existed (which included

an affidavit submitted by Fedor as well as reports from both the 

crime laboratory and Cellmark), that the defendant was entitled 

to an evidentiary hearing on his motion for a new trial.

Subsequently, the defendant filed a document entitled 

"Submission of New Forensic Analysis and Motion for Immediate 

Relief," alongside the aforementioned Carita affidavit. The 

defendant had not sought court approval to retain Carita, and

according to his affidavit, Carita had reviewed test data from 

the crime laboratory's analysis on a voluntary basis up until 

that point. The Commonwealth filed an opposition, but in April, 
30

2010, the judge found that, notwithstanding certain limitations, 

the Carita affidavit stated an opinion that might be admissible 

in evidence. Accordingly, the motion judge granted an 

evidentiary hearing, ordering the parties to "explore the 

possibility of minimizing the cost to the Commonwealth" by 

taking video testimony of Fedor and a Cellmark representative.

The defendant filed, and the judge allowed, a motion for 

funds for the attendance of an expert witness in the amount of 

$4,500 for Carita to attend the evidentiary hearing. In his 

motion, the defendant made clear that this request was "an all 

inclusive authorization, covering preparation, travel, and court 

time." The hearing took place on July 9 and 23, 2010, at which 

both Carita and Lemire testified. As discussed above, the 

motion judge ultimately found that Carita's opinions would not 

be admissible at trial.

Approximately one year later, in May, 2011, the defendant 

sought additional funds to cover the remainder of Carita's bill, 

explaining that the original funds sought constituted an 

underestimate based on an expected one-day evidentiary hearing. 

The motion judge denied the motion without prejudice to renew. 

On September 1, 2011, the defendant filed a renewed motion for 

funds with an accompanying affidavit detailing Carita's dates of 

service, work performed, and time spent traveling. The 

defendant asserted that Carita was retained because the cost of 
31

transporting Fedor and an expert from Cellmark was 

"substantial," and counsel had been "unsuccessful" in making 

video conferencing arrangements. The motion judge denied this 

motion as well, basing her decision on the defendant's failure 

to seek prior approval to retain Carita and her view that 

Carita's testimony was unreliable, inadmissible, and put forth 

solely "to supplement an inadequate record."

Rule 30 (c) (5) of the Massachusetts Rules of Criminal 

Procedure, as appearing in 435 Mass. 1501 (2001), and as 

explained by the Reporters' Notes to Rule 30, Mass. Ann. Laws 

Court Rules, Rules of Criminal Procedure, at 1710-1711 

(LexisNexis 2014), "gives judges discretion to allow for the 

payment of costs associated with the preparation and 

presentation of a new trial motion" (quotations and citation 

omitted). Commonwealth v. Mitchell, 438 Mass. 535, 555, cert. 

denied, 539 U.S. 907 (2003). See Commonwealth v. Evans, 439 

Mass. 184, 204, cert. denied, 540 U.S. 923, and cert. denied, 

540 U.S. 973 (2003). Further, where an indigent defendant seeks 

to obtain additional evidence in connection with a motion for 

postconviction relief that would likely raise a meritorious 

defense warranting a new trial, the judge has discretion to 

grant a motion for funds to hire an expert. See Mitchell, 438 

Mass. at 555. A judge considering such a motion for expert 

funds must consider "not only the potential admissibility of the 
32

expert's testimony and its cost, but also the 'desirability or 

necessity' of the testimony to the requesting party's case." 

Commonwealth v. Zimmerman, 441 Mass. 146, 153 (2004), quoting 

Commonwealth v. Lockley, 381 Mass. 156, 161 (1980).

The judge likely factored the above considerations into her 

assessment when granting the initial $4,500 for Carita to appear 

and testify at the evidentiary hearing, given that she ordered 

the hearing only after receiving Carita's affidavit and finding 

that Carita presented an opinion that "might be admissible." At

that point, the motion judge had before her the substance of 

Carita's testimony, which did not vary at the hearing.

Although the judge would have had discretion to deny the 

defendant's initial request for funds, see Zimmerman, 441 Mass. 

at 152-153, her initial approval strongly supports the inference 

that she deemed Carita's services to be reasonably necessary. 

And although the defendant did not seek explicit permission to 

retain Carita, the judge implicitly provided such permission 

when granting $4,500 for Carita to appear and testify at the 

evidentiary hearing.

Accordingly, it appears that the judge predicated the grant 

of additional expert funds on whether she ultimately agreed with 

the substance of Carita's opinion, and when denying the 

defendant's renewed motion for funds, she explicitly stated that 

"[h]ad the Court realized the extent to which the opinions of 
33

Mr. Carita that led to the evidentiary hearing were not based on 

any accepted or reliable scientific methodology, the Court would 

not have allowed" the original funds for Carita's attendance and 

testimony.

Carita adequately documented the services he performed and 

the time spent assisting the defendant's case. He testified on 

behalf of the defendant over the course of an (unanticipated) 

two-day evidentiary hearing and assisted defense counsel in 

drafting proposed findings of fact. Additionally, although the 

judge took issue with the fact that the defendant did not obtain 

explicit permission to retain Carita, up until the point at 

which the defendant sought and the judge granted funds, Carita 

had provided his services pro bono. Once the judge granted the 

funds requested by the defendant so that Carita could attend the 

evidentiary hearing, it was not unreasonable for the defendant 

to believe he had the judge's permission to retain Carita. 

Although the defendant's initial request assured the judge it 

would be an "all inclusive authorization," the evidentiary 

hearing lasted one day longer than anticipated.

It was only in hindsight, after her ultimate finding on the 

admissibility of his opinion, that the judge denied additional

funds. This is impermissible. See Zimmerman, 441 Mass. at 152-

153 (judge should consider not only potential admissibility of 

expert testimony, but also "desirability or necessity" to the 
34

requesting party's case). See also Lockley, 381 Mass. at 161. 

Accordingly, it was an abuse of discretion to deny the 

defendant's supplemental request to pay Carita for additional 

services rendered.32

Conclusion. The denial of the defendant's motion for a new 

trial is affirmed and the denial of supplemental expert funds is 

reversed. The case is remanded for further proceedings 

consistent with this opinion.

So ordered.

 

32 It would have been permissible for the judge to deny the 

request for additional funds if they were not justified because 

the additional expenses had been foreseeable (but not approved 

in advance) or because the amount was unreasonably high for the 

services rendered.