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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 
2

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, 
3

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 with 

it and appealing from any order of contempt that results"). For 

the reasons that follow, we discern no error in the issuance of 

the order compelling Christopher to provide a buccal swab, and 

accordingly we affirm the judgment.

Background. At approximately 10:00 A.M. on the morning of 

April 16, 2012, Richard Coyne discovered his sixty-seven year 

old mother Barbara on the floor of her bedroom, bleeding 

profusely. Emergency responders transported her to Boston 

Medical Center, where she died at 10:37 A.M. An autopsy 

revealed that multiple stab wounds caused her death. A swab of 

her hands and fingernails yielded biological material, which DNA 

testing revealed to have come from two or more individuals.1,2

Investigation of the crime scene yielded, among other 

forensic evidence linking Timothy to the crime, bloody 

fingerprints matching Timothy's on an overturned jewelry box in 

the victim's bedroom. In addition, videotape obtained from a 

1 The victim is included as a possible contributor to the 

mixture.

2 A supplemental affidavit of criminalist Joseph Ross, 

submitted after the entry of the judgment of contempt and 

included in the record upon allowance by the Superior Court 

judge of the Commonwealth's motion to expand the record, 

discloses that "Timothy Kostka is partially included and unable 

to be excluded as a possible contributor to the mixture."

 
4

nearby corner store showed Timothy engaging in a transaction at 

a lottery machine at approximately 10:03 A.M.; information 

obtained from the Massachusetts State Lottery Commission 

thereafter revealed that winning lottery tickets cashed at the 

store at that time were consistent in game and book number to 

other tickets gathered as evidence from the victim's home.

As observed in the introduction, Timothy and Christopher 

are twin brothers. The Commonwealth believes that they are 

fraternal twins. Indeed, Christopher testified before the grand 

jury that he and Timothy are fraternal twins.3

 However, in the 

affidavit of criminalist Joseph Ross submitted in support of the 

Commonwealth's motion to compel, Ross explains that

"if Timothy Kostka and Christopher Kostka are actually 

identical twins, they would share the same DNA profile. If 

it is determined that they have different DNA profiles, 

then it can be inferred that they are not identical twins."4

3 The record includes no evidence regarding the twins' 

physical resemblance to one another, though various comments 

made by counsel at the hearing on the Commonwealth's motion to 

compel suggest that they are different in appearance. There is, 

however, no basis on the present record to determine the extent 

of any difference in their appearance, and no expert opinion or 

other evidence explaining the significance of differences in 

appearance in determining whether twins are identical or 

fraternal.

4 In his supplemental affidavit, see note 2, supra, Ross 

asserts that "[c]omparison of [Timothy's and Christopher's] DNA 

profiles is the only way to conclude whether they are identical 

or fraternal twins." The record contains no evidence suggesting 

otherwise.

 
5

See Commonwealth v. Curnin, 409 Mass. 218, 218 n.1 (1991) ("The 

DNA of each person, except for identical twins, is unique

. . . ").

In a thoughtful and detailed written memorandum of 

decision, a judge of the Superior Court allowed the 

Commonwealth's motion to compel Christopher to provide a saliva 

sample, finding that "the only definitive way the Commonwealth 

can establish that Timothy Kostka and Christopher Kostka are 

truly fraternal twins and not identical twins is through DNA 

testing" and that a determination that Timothy Kostka's DNA is 

unique is highly relevant to the question of his guilt. Upon 

Christopher's refusal to comply with the order compelling him to 

provide a saliva sample, a judgment of contempt entered and this 

appeal followed.5

Discussion. In Commonwealth v. Draheim, 447 Mass. at 118, 

the Supreme Judicial Court considered the "novel question 

. . . whether or in what circumstances the Commonwealth can 

obtain a sample of physical evidence from the body of a third 

party" not suspected of a crime.6

 The court held that, where 

5 A single justice of this court stayed execution of 

Christopher's sentence pending the appeal. See Matter of a 

Grand Jury Subpoena, 411 Mass. 489, 498-499 (1992).

6 The question was identified, but left open, in Jansen, 

petitioner, 444 Mass. 112, 120-121 (2005), overruled in part on 

other grounds by Commonwealth v. Dwyer, 448 Mass. 122, 140 n.22 

(2006), in which the court affirmed an order allowing the 

 
6

third parties rather than suspects are involved, in order to 

respect their constitutional rights "the Commonwealth must show 

probable cause to believe a crime was committed, and that the 

sample will probably provide evidence relevant to the question 

of the defendant's guilt. . . . Additional factors concerning 

the seriousness of the crime, the importance of the evidence, 

and the unavailability of less intrusive means of obtaining it 

are germane." Id. at 119.

The Superior Court's order reflects correct application of 

the Draheim standard. "In this case, the Commonwealth's burden 

to show probable cause that a crime has been committed is easily 

met because [Timothy] has been indicted." Ibid. The 

Commonwealth's burden to "prove additionally that the saliva 

samples will probably provide evidence relevant to [Timothy's] 

guilt," ibid., is met by the judge's findings that "the only 

definitive way the Commonwealth can establish that Timothy 

Kostka and Christopher Kostka are truly fraternal twins and not 

identical twins is through DNA testing"7 and that determination 

that Timothy's DNA is unique as a contributing source of the DNA 

recovered from the crime scene is relevant to the question of 

defendant in a criminal case to obtain a buccal swab from a 

third party for the purpose of developing evidence thought to be 

exculpatory of the defendant.

7 The defendant does not argue that this finding is clearly 

erroneous, and it finds support in the record in the 

uncontroverted Ross affidavit and supplemental affidavit.

 
7

Timothy's guilt. Finally, the judge considered the influence of 

the additional factors of "the seriousness of the crime, the 

importance of the evidence, and the unavailability of less 

intrusive means of obtaining [the evidence]," Commonwealth v. 

Draheim, supra, observing that the crimes of armed home invasion 

and murder are unquestionably serious, that the evidence is 

plainly important to determine whether Timothy and Christopher 

are fraternal or identical twins, and that DNA testing is the 

only means to do so. There was no error in the allowance of the 

Commonwealth's motion to compel; accordingly, entry of the 

judgment of contempt on Christopher's refusal to comply with the 

order compelling him to provide a buccal swab was appropriate.

Judgment of contempt

 affirmed.