SUPREME JUDICIAL COURT DIRK GKEINEDER - Mass Cases

NORFOLK. ss.
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
COMMONWEALTH OF MASSACHUSETTS
V.
DIRK GKEINEDER
NO. SJC-08866
CONSOLIDATED UMEF OF DEFENDANT/APPELLANT DlKK GRFANEDEK
ON DIRECT APPEAL AND APPEAL FROM DENIAI, OF
AMENDED MOTION FOR NEW TRIAL
April 2009
James L. Sultan, BBO #488400
Jonathan P. Hanvell, BBO #662764
Rankin & Sultan
151 Merrimac Strcet
Second Floor
Boston, MA 02114
(61 7) 720-0011

TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . vii
STATEMENT OF THE CASE . . . . . . . . . . . . . . 1
STATEMENT OF RELEVANT FACTS . . . . . . . . . . . 1
SUMMY OF THE ARGUMENT . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . 2
I. GREINEDER WAS DENIED HIS RIGHT TO A PUBLIC
TRIAL. . . . . . . . . . . . . . . . . . . . . 2
A. Statement of Relevant Facts. . . . . . . 2
B. Summary of Applicable Law. . . . . . . . 3
C. Application of Law to Facts. . . . . . . 4
1. The first portion of the trial was
improperly closed to the public. . 4
2. Greineder is entitled to relief. 5
II. THE TRIAL COURT'S ADMISSION, OVER OBJECTION,
OF INCULPATORY DNA TEST RESULTS VIOLATED
GREINEDER'S CONSTITUTIONAL RIGHT TO
CONFRONTATION AND THE PROSCRIPTION AGAINST
HEARSAY. . . . . . . . . . . . . . . . . . . 6
A. Statement of Relevant Facts. . . . . . . 6
B. Summary of Applicable Law. . . . . . . . 9
C. Application of Law to Facts. ...... 11
111. GREINEDER'S CONSTITUTIONAL RIGHTS WERE
VIOLATED BY THE PROSECUTOR'S CROSS-EXAMINATION
AND CLOSING ARGUMENT. ............ 12
A. Statement of Relevant Facts. . . . . . . 12
1. Timeline. . . . . . . . . . . . . . 12
2. The Commonwealth' s evidence
regarding Greineder's statements
about trying to assist his wife. . 13
i

3. Greineder's direct testimony. . . .
4. Cross-examination of Greineder about
efforts ta pick up Ms. Greineder. .
5. Cross-examination of Greineder about
heel mark. . . . . . . . . . . . .
6. Prosecutor's closing argument. . .
B. Summary of Applicable Law. . . . .
1. Ban on exploiting post-arrest
silence. . . . . . . . . . . . . .
2. Ban on comment on pre-arrest
silence. . . . . . . . . . . . . .
3. Ban on suggesting that a defendant
has tailored testimony to fit trial
evidence. . . . . . . . . . . . . .
C. Application of Law to Facts. . . . . . .
IV. THE TRIAL COURT ERRED IN ADMTTTING IRRELEVANT
AND HIGHLY PREJUDICTAL EVIDENCE ABOUT
GREINEDER'S EXTRAMARJTATA SEXUAL ACTIVITIES. .
A. Statement of I?elevant Facts. . . . . . .
B. Summary of Applicable Law. . . . . . . .
1. Admissibility of prior bad acts.
2. Extramarital sexual activity is
relevant to motive to commit murder
only when combined with overt
evidence of hostility. . . . . . .
3. The Commonwealth may not misuse
evidence admitted fox a limited
purpose or refer to 'facts" which
were not admitted at trial in its
closing argument. . . . . . . . . .
4. Standard of review. . . . . . . . .
C. Application of Law to Facts. . . . . . .
..
I1
13
13
15
16
16
16
17
17
la
19
19
20
20
21
22
22
22

1. The sex evidence was inadmissible. .
2. The Commonwealth misused the sex
evidence during closing argument. .
3. conclusion. . . . . + . . . . . . .
V. THE MOTION JUDGE ERRED IN DENYING GREINEDER'S
MOTION FOR NEW TRIAL BASED UPON THE
KECANTATLON OF DEBORAH REBEIRO. . . . I . . .
A. Statement of Relevant Facts. . . . . . .
E. Summary of Applicable Law. . . . . + . .
1. Recantation by prosecution witness
as grounds for new trial. . . . .
2. Recantations in other jurisdictions.
. . . . . . . . . . . . . . . . .
3. Constitutional right to disclosure
of exculpatory information. . . . .
4. Constitutional right to fair trial
based on reliable evidence. . . . .
5. Standard of review. . . . . . . . .
C. Application of Law to Facts. . . . . . .
1. Kebeiro's trial testimony was false,
and her recantation was credible. .
2. Rebeiro's erroneous trial testimony
seriously prejudiced the defense.
3. Greineder is entitled to relief.
a. Greineder is entitled to relief
under the Larrison standard. .
b. Greineder i s entitled to relief
under federal constitutional
law. . . . . . . , . . . . . .
c. Greineder is entitled to relief
under Gallarelli. . . . . . . .
iii
22
24
25
26
26
26
26
26
27
29
30
30
31
31
32
32
33
34

VI.
VII.
d. Greineder is entitled to relief
under the newly-discovered
evidence standard. . . . . .
THE MOTION JUDGE ERRED IN DENYTNG GREINEDER'S
MOTION FOR NEW TRIAL BASED UPON THE
DELIBERATING JURY'S EXPOSURE TO EXTRANEOUS
INFORMATION. . . . . . . . . . . . . . . . .
A. Statement of Relevant Facts. . . . . . .
B. Summary of Applicable Law. . . . . . . .
1. Jury experiment as extraneous
information. . . . . . . . . . . .
2. Prejudice . . . . . . . . . . . . .
C. Application of Law to Facts. . . . . . .
1. The banana experiment exposed the
jury to extraneous information. . .
2. The Commonwealth did not prove the
absence of prejudice. . . . . . . .
GREINEDER'S TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE IN FAILING TO EXCLUDE OR CHALLENGE
SCIENTIFICXLLY UNRELIABLE DNA RESULTS. . . .
A. Statement of Relevant Facts. . . . . . .
B. Summary of Applicable Law. . . . . . . .
1. Exclusion of unreliable scientific
evidence. . . . . . . . . . . . . .
2. Ineffective assistance of counsel.
. . . . . . . . . . . . . . . . .
C. Application of Law to Facts. . . . . . .
1. Defense counsel blundered in failing
to move to exclude the
Commonwealth's scientifically
unreliable DNA results. . . . . . .
2.
Defense counsel blundered in failing
to challenge the DNA evidence at
trial. . . . . . . . . . . . . . .
iv
34
35
35
36
36
38
39
39
40
43
43
44
44
45
47
47
54

VIII.
3. Greineder was prejudiced by defense
counsel's blundera. . . . . . . . .
DEFENSE COUNSEL WAS INEFFECTIVE IN
FALLING TO FILE A MERITORIOUS MOTION
TO SUPPRESS THE NAILS RECEIPT. . . . . .
A. Statement of Relevant Facts. . . . . . .
B. Summary of Applicable Law. . . . . . . .
C. Application of Law to Facts. . . . . . .
1. The seizure of the nails receipt was
unconstitutional. . . . . . . . . .
2. The motion judge's ruling was
erroneous. . . . . . . . . . . . .
3. Counsel's failure to move to
suppress was prejudicial. . . . . .
IX. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO
FILE A MERITORIOUS MOTION TO SUPPRESS THE
FRUITS OF A SEARCH OF GREINEDER'S TOYOTA
AVALON . . . . . . . . . . . . . . . . . . . .
A. Statement of Relevant Facts. . . . . . .
B. Summary of Applicable Law. . . . . . . .
1. Scope of a residential search
warrant. . . . . . . . . . . . . .
2. Limited exception to warrant
requirement for automobile searches.
. . . . . . . . . . . . . . . . . .
C. Application of Law to Facta. . . . . . .
1. The search of the Toyota Avalon was
unlawful. . . . . . . . . . . . . .
2. Counsel was deficient in failing to
file a motion to suppress. . . . .
3. The motion judge's reasoning was
flawed. . . . . . . . . . . . . . .
V
56
57
57
5a
58
58
59
60
60
60
60
60
61
61
61
62
63

4 . Counsel's failure to move to
suppress was prejudicial . . . . . . 63
X . THE CUMULATIVE ERRORS JUSTIFY REVERSAL OF
GREINEDER'S CONVICTION . . . . . . . . . . . . 64
A . Summary of Applicable Law . . . . . . . . 64
B . Application of Law to Facts . . . . . . . 65
CONCLUSION . . . . . . . . . . . . . . . . . . . . 65
vi

Bradv v. Marvland,
373 U.S. 83 (1963) . . .
California v. Green,
399 U.S. 149 (1970) < .
Carroll v. United States,
267 U.S. 132 (1925) . .
TABLE OF AUTHORITIES
Federal Cases
27, 28, 33, 33n.
. . . . . . . 29
. . . . . . . 61
Chavman v. California,
386 U.S. 18 (1967) . . . . . . . . . . . . . . . . 38
Coosan v. McCaushtrv,
958 F.2d 793 (7‘” Cir. 1991)
Crawford v. washinston,
541 U.S. 36 (2004) . . . .
. . . . . 29
. . . . . 11
Daubert v. Mesrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) . . . . . . . . . . . . 44
DowLins v. United States,
493 U.S. 342 (1990) . . .
Doyle v, Ohio,
426 U.S. 610 (1976) . . .
Kimmelman v. orriso on,
477 U.S. 365 (1986) . . .
KylPs v. Whitlev,
419 U.S. 419 (1995) . . .
Larrison v. united States,
24 P.2d 82 (7th Cir. 1928)
. . . . 21
. . . . 16
. . . 46
. . . 28
27, 21n., 32, 33
Mauu v. Ohio,
367 W.S. 643 (1961) . . . . . . . . . . . . . . . 59
Martin v. United States,
17 F.2d 973 (5th Cir. 1327) . . .
Massachusetts v. Shermard,
468 U .S. 981 (1984) . . . . . . .
vii
26, 21
. . 58

Miller v. Harvey,
566 F.2d 879 (4th Cir. 1977) . . . . . . . . . . 37n.
Neder v. United States,
527 U.S. 1 (1999) . . . . . . . . . . . . . . . . 6
Owens v. United Stateu,
483 F.38 48 (lat Cir. 2007), on remand,
517 F.Supp. 2d 570 (D.Mass. 2007) . . . . 4, 5, 6, 6n.
Parker v. Gladden,
385 U.S. 363 (1966) (per curiam) . . . . . . . . . 42
Press-Enterprise Co. v. Supprior Court of Cal.,
464 U.S. 501 (1984) . . . . . . . . . . . . . . . . 3
Strickland v. Washinston,
466 W.S. 668 (1384) . . . . . . . . 45, 46
United States v. Aqurs,
427 U.S. 97 (1976) . . . . . . . . . . . . . . . . 28
United States v. Antar,
38 F.3d 1348 (3d Cir. 1994) . . . . . 5
United States v. Baalev,
473 U.S. 667 (1985) . . . . . . . . . . . . . . . 28
United States v. Ferreras,
192 F.3d 5 (Ist Cir. 1999) . . . . . . . . . . . . 58
United Statea v. Lofton,
233 F.3d 313 (4kt‘ Cir. 2000) . . . . .
United States v. Mevers,
484 F.2d 113 (3rd Cir. 1973) . ,
2711.
.... 27n.
United States v. Nevell,
28 F.3d 109 (gth Cir. 1994) . . . . . . . . . . 3711.
United States v. Sampson,
335 F.Supp.2d 166 (D.Mass. 2004) . . 65
United States v. Welch,
377 F.Supp. 367 (D.S.C. 1971)
x3.c. 496 F.2d 861 (qL” Cir. 1973) . . . . 37n.
a.
United States v. Willis,
257 F.3d 636 (6t” Cir. 2001) . . . . 27
viii

United States v. YQunq,
17 F.3d 1201 (gth Cir. 1994) . . . . . . . . . . . 29
Waller v. Georsia,
467 U.S. 39 (1984) . . . . . . . . . 3
Walton v. Brilev,
361 F.3d 431 (7th Cir. 2004) . . . . . . . . . . . . 5
Wiqqins v. Smith,
539 U.S. 510 (2003) . . . . . . . . . . . . . 45, 63
State Cases
Bruns v. Jordan Marsh Co.,
305 Mass. 437 (1940) . . . . . . . . . . . . . . . 37
Carter v. State,
753 S.W.2d 432 (Tex. App. 1988) . . . . . . . . 37n.
casterline v. State,
736 s.w.2d 207 (Tex. Ct. App. 1987) . . 2 In
Commonwealth v. Acevedo,
446 Mass. 435 (2006) . . . . . . . . . . . . . . . 46
Commonwealth v. Alvarado,
420 Mass. 542 (1995) . . . . . . . . . . . . . . . 61
Commonwealth v. Baker
440 Mass. 519 (2003) . . . . . . . . . . . . . . . 64
Commonwealth v. Beauchama,
424 Mass. 682 (1997) . . . . . . . . . . . 17, 18, 36
Commonwealth v. Beliard,
443 Mass. 79 (2004) . . . . . . . . . . . . . . . 46
Commonwealth v. Blood,
400 Mass. 61 (1987) . . . . . . . . . . . . . . . 59
Cvmmonwealth v. Bonomi,
335 Mass. 327 (1957) . . . . . . . . . . . . . . Zln.
Commoawealth v. Brown,
451 Mass. 200 (2008) . . . . . . . . . . . . . . . 16
ix

Commonwealth v. Carter,
39 Mass. App. Ct. 439 (1995) . . 63n.
Commonwealth v. Cast,
407 Mass. 891 (1990) . . . . . . . . . . . . . . . 30
Commonwealth v. Cefalo,
381 Mass. 319 (1980) . . . . . . . . . 58
Commonwealth v. Coren,
437 Mass. 723 (2002) . . . . . . . . . . . . . . . 22
Commonwealth v. Cowie,
404 Mass. 119 (1989) . . . . . . . . . . . . . . . 30
Commonwealth v. Cuffie,
414 Mass. 632 (1993) . . . . . . . . . . . . . . . 36
Commonwealth v. Curnin,
409 Mass. 218 (1991) . . . . . . . . . . . . . . . 45
Commonwealth v. Curtis,
417 Mass. 19 (1994) . . . . . . . . . . . . . . . 46
Commonwealth v. DeMarcv,
444 Mass. 678 (2005) . . . . . . . . . . . . . . 21n.
Commonwealth v. Dubois,
451 Mass. 20 (2008) . . . . . . . . . . . . . . . 30
Commonwealth v. Evans,
438 Mass. 142 (2002) . . . . . . . . . .
Commonwealth v. Ewinq,
67 Mass. App. Ct. 531 (2006) . . . . . .
10, 12
. . . . . 18
Commonwealth v. FidlPr,
377 Mass. 192 (1979) . . . . . . . . . 36, 38, 39, 41
Commonwealth v. Fordham,
417 Mass. 10 (1994) . . . . . . . . . . . . . . 19n.
Commonwealth v. Gallarelli,
399 Mass. 17 (1987) . . . . . . . . . . . 28, 29, 34
Commonwealth v. Gaynor,
443 Mass. 245 (2005) . . . . . . . . . . . . . . 53n.
Commonwealth v. Gomez,
450 Mass. 704 (2008) . . . . . . . . . . . . . . . 47
x

Commonwealth v. Gordon,
422 Mass. 816 (1996) . . . . . . . . . . . . . . . 3
Commonwealth v. Grace,
397 Mass. 303 (1986) . . . . . . . . . . . . . . . 26
Commonwealth v. Healy,
438 Mass. 672 (2003) . . . . . . . . . . . . . 27, 28
Commonwealth v. Hill,
54 Mass. App. Ct. 690 (2002) . . . . . . . . 10, Ion.
Commonwealth v. Horton,
434 Mass. 823 (2001) . . . . . . . 6n.
Commonwealth v. Howard,
205 Mass. 128 (1910) . . . . . . . . . . . . . . 2111.
Commonwealth v. Hunt,
392 Mass. 28 (1984) . . . . . . . . 42
Commonwealth v. Kincaid,
444 Mass. 381 (2005) . . . . . . . . . . . . . 38, 33
Commonwealth v. Lanisan,
419 Mass. 15 (1994) . . . 44, 48, 49. 50, 53, 56, 57
Commonwealth v. Lavallev,
410 Mass. 641 (1991) . . . . . . . . . . . 17
Commonwealth v. Leonard,
428 Mass. 782 (1999) . . . . . . . . . . . . . . . 20
Commonwealth v. Lvkus,
451 Mass. 310 (2008) . . . . . . . . . . . . . . . 29
Commonwealth v. Maqraw,
426 Mass. 589 (1998) . . . . . . . . . . 2111.
Commonwealth v. Marbvart,
437 Mass. 331 (2002) . . . . . . . . 10
Commonwealth v. Martin,
417 Mass. 187 (1334) . . . . . . . . . . . . . . . . 4
Commonwealth v. Martin,
427 Mass. 816 (1998) . . . . . . .
Commonwealth v. Martin,
442 Mass. 1002 (2004) . . . . . .
xi
. 28
. 20

Commonwealth v. Martinez,
425 Mass. 382 (1997) . . . . . . . . . . . . . . . 45
Commonwealth v. McCarthv,
428 Mass. 871 (1999) . . . . . . . . . . . . . . . 61
Commonwealth v. MCNickles,
434 Mass. 839 (2001) . . . . . . . . . . . . . 10, 12
Commonwealth v. Molina,
439 Mass. 206 (2003) . . .
Commonwealth v. Murahy,
448 Mass. 452 (2007) . . .
. . . . . 38
Commonwealth Y. Nardi,
452 Mass. 379 (2008) . . . . . . . . . . . . . 11, 12
Cpmpgnwealth v. Nickersgn,
386 Mass. 54 (1982) . . * . . . . . 17
Commonwealth v. Olszewski,
401 Mass. 749 (1988) . . . . . . . . . . . . . . . 28
Commonwealth v. Ortiz,
376 Mass. 349 (1978) . . . . . . . . . . . . . . . 61
Commonwealth v. Patterson,
445 Mass. 626 (2005) . . . . . . . . . . . . 44, 5311.
Commonwealth v. Perez,
444 Mass. 143 (2005) . . . . . . . . . . . . . . . 22
Commonwealth v. Perkins,
450 Mass. 834 (2008) . . . . . . . . . . . . . . . 30
Commonwealth v. Petera,
429 Mass. 22 (1999) . . . . . . . . . . . . . . . 46
Commonwealth v. Randwluh,
438 Mass. 290 (2002) . . . . . . . . . . . . . . . 5
Commonwealth v. Ravmond,
424 Mass. 382 (1997) . . . . . . . . . . . . . . . 26
Commonwealth v. Richotte,
59 Mass. App. Ct. 524 (2003) . . . . . . . . . . . 17
Commonwealth v. Robertson,
408 Mass. 747 (1990) . . . . . . . . . . . . . . . 20
xii
6n +

I
Commonwealth v. Rosa,
412 Mass. 147 (1992) . . . . . . . . . . . . . . . 22
Commonwealth v. Rosenthal,
432 Mass. 124 (2000) . . . . . . . . .
Commonwealth v. Rutkowski,
406 Mass. 673 (1990) . . . . . . . . .
Commonwealth v. Rutledse,
356 Mass. 499 (1969) . . . . . . . . . . . . . . . 26
Commonwealth v. Saferian,
366 Mass. 89 (1974) . . . . . . . . . . . 45. 46. 57
Commonwealth v. Satterfiu,
373 Maea. 109 (1977) . . . . . . . . . . . . . 46, 57
Commonwealth v. Schand,
420 Mass. 783 (1995) . . . . . . . . . . 30
Commonwealth v. Sheppard,
394 Mass. 381 (1985) . . . . . . . . . . . . . . 58n.
Commonwealth v. Simmons,
392 Mass. 45 (1984) . . . . . . . . . . . . . 61, 62
Commonwealth v. Saarks,
433 Mass. 654 (2001) .
Commonwealth v. Talbot,
444 Mass. 586 (2005) ,
21
58
. . + . , . 10, 10n.
. . . . . . . . . 22
Commonwealth v. Tucceri,
412 Mass. 401 (1992) . . . . . . . . . . . . . . . 28
Commonwealth v. Vardinaki,
438 Mass. 444 (2003) . . . . . . . . . . . . . . . 38
Commonwealth v. Walker,
443 Mass. 213 (2005) . . . . . . . . . 30
Commonwealth v. Watkins,
33 Mass. App. Ct. 7 (1992) . . . . . . . . . . . 63n.
Commonwealth v. Wriqht,
411 Mass. 678 (1992) . . . . . . . . . . . . . . . 64
Ex Parte Thomas,
666 So.2d 855 (Ala. 1995) . . . . . . . . . . . 37n.

FitzDatrick v. Allen,
410 Mass. 791 (1991) . . . . . . . . . . . 39n., 4311.
Gentrv v. State,
236 Ga. App. 820 (1999) . . . . . . . 37
HooDer v.State,
680 N.W.2d 89 (Minn. 2004) . . . . . 27n.
Markee v. Biasetti,
410 Mass. 785 (1991) . . . . . . . . . . . 39n., 4311.
Marshall v. State,
305 N.W.2d 838 (S.D. 1981)
. . . . 27n.
People v. Bosle,
41 Cal. App. 4th 770 (1995) . . . . . . . . . . . 37
PeoDle v. Hendricks,
137 I11.2d 31, 560 N.E.2d 661 (1990) . . . . . . 21n.
State v. Britt,
360 s . E . ~ 660 (N.c. 1987) . . . . . . . . . . . 27n.
State v. Caldwell,
322 N.W.2d 574 (Minn. 1982) . . . . . . . . . . . 35
State v, Maeole,
617 P.2d 820 (Hawaii 1980) . . . . . . . . 27n.
State v. Russo,
700 A.2d 161 (Del. Super. 1396) . . . . . . . . 27n.
State v. Scroqqine,
110 ID 380 (1985) . . . . . . . . . . . . . . . 27n.
Statutes and Constitutional Provisions
28 W.S.C. 52255 . . . . . . . . . . . . . . . . . 6
M.G.L.C. 278. §33E . . . . . . . . . . 6, 30, 47, 64
Massachusetts Declaration of Rights
Article XI1 . . . . . . . . . . . . . 11, 36, 45, 46
Massachusetts Declaration wf Rights
Article XIV . . . . . . . . . . . . . . . . . 58, 61
xi,

U.S. Constitution,
Fourth Amendment . . . . 58, 61
U.S. Constitution,
Fifth Amendment . . . . . . . . . . . . . . . 23, 45
U.S. Constitution,
Sixth Amendment . . . . . . . . . . . . . . 6, 11, 36
U.S. Constitution,
Fourteenth Amendment . . . . . . . . . 11, 29, 36, 45
Other Authorities
6 W.R. LaFave, Search and Seizure,
S11.4 (4‘” ed. 2004) . . . . . . . . . . . . . . . 59
Blumenson, Fisher, & Kanstroom,Z Massachusetts
Criminal Practice ~ 1 5 . 2 (1998 ~ & 2001 Supp.) , . 6311.
Annotation. Proorietv of Juror‘s
Tests or Exweriments in J un Room,
31 A.L.R. 4th 566 (1984) . . . . . . . . . . . . . 36
XV

STATEMENT OF THE CASE
Dirk K. Greineder ["Greineder"] was convicted of the
first degree murder of his wife, Mabel ["Ms. Greineder"] .
His direct appeal was stayed to permit him to file a
motion for new trial, which was remanded to the trial
judge (Chernoff, J.) . On October 31, 2007, Judge Chernoff
denied Greineder's amended motion for new trial.
STATEMENT OF RELEVANT FACTS
An overview of the trial evidence is set forth in
the trial judge's 61-page appendix to his decision
denying Greineder's new trial motion. A 912.l The facts
relevant to each of the specific arguments herein appear
in those respective sections of the brief.
SU'MWRY OF THE ARGUMENT
Greineder's constitutional right to a public trial
was violated when all of juror voir dire took place in
private. (pp. 2-6) The admission of inculpatory DNA test
results, over objection, through a witness who neither
conducted the testing nor reviewed the raw data violated
Greineder's constitutional right to confrontation and the
rule against hearsay. (pp. 6-12) The prosecutor's
misconduct in deliberately exploiting Greineder's rights
to remain silent, to prepare and present a defense, and
1
References to the trial transcript are abbreviated
herein as "z. [vol. I / [page (a) 1 ." References to the pre-trial and
post-trial transcripts are abbreviated as "a. [date] / [page(s)l ."
References to the defendant's record-appendix are abbreviated a6 "a.
[pagels)l ."

to attend his trial violated his constitutional right to
due process and deprived him of a fair trial. (pp. 12-19)
The admission of irrelevant and unfairly prejudicial
evidence regarding Greineder's extramarital sexual
activities deprived him of a fair trial. (pp. 19-26)
The post-trial recantation of key opinion testimony
by the Commonwealth's footprint expert warrants a new
trial. (pp. 26-35) An experiment conducted by the
deliberating jury exposed the jury to prejudicial
extraneous information, requiring a new trial. (pp. 35-
43) Greineder was deprived of constitutionally effective
assistance of counsel by his counsel's failure to move:
(1) to exclude scientifically unreliable DNA test results
or challenge those results at trial; (2) to suppress a
receipt seized pursuant to a general search warrant; and
(3) to suppress the fruits of an unconstitutional car
search. (pp. 43-64) The myriad errors committed at trial
warrant relief under M.G.L.c. 278,S333. (pp. 64-65)
ARGUMENT
I. GREINEDER WAS DENIED HIS RIGHT TO A PUBLIC TRIAL.
A. Statement of Relevant Facts.
Trial commenced on May 21, 2001 with jury selection.
Prospective jurors were summoned one at a time for
individual voir dire, which took place in a small
courtroom, Room 8 . z. 1/5. Judge Chernoff explained:
2

First of all, we are in Room 8. The record
should reflect that we are in Room 8 for the
purposes of conducting a non-public individual
voir dire of the jurors.
- Id. at 37; A. 127.’ The defendant was formally placed at
the bar for trial in this same private setting. a.
Judge Chernoff made no findings on the record to
justify conducting this portion of the trial in private.
After an adequate number of indifferent jurors were
identified, the process continued in Courtroom 10. z.
II/246. There, jurors were seated, peremptory challenges
were exercised, and the jury was sworn. z. at 279.
B. Summary of Applicable Law.
A public trial is guaranteed by the First and Sixth
Amendments to the Constitution. Press-Enterorise Co. v.
Superior Court of Cal., 464 U.S. 501, 505 (1984); Waller
v. Georsia, 467 U.S. 33, 46 (1984). Closure of any
portion of a trial requires ”an overriding interest based
on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.((
Press-Enternrise, 464 U. S. at 510. “The guarantees of
open public proceedings in criminal trials cover
proceedings for the voir dire examination of potential
jurors concerning their qualifications to serve. ‘I
Commonwealth v. Gordon, 422 Mass. 816, 823 (1996).
Prior to trial. the judge stated that he had met with
members of the media “who have an interest in being present during
the public part of this case.“ E. 5/18/01 at 3 (emphasis added).
3

In Owens v. United States, 483 F.3d 48 (1st Cir.
2007), the court found that the closure of the courtroom
during jury selection "call [SI into question the
fundamental fairness of [defendant's] trial.!' s. at 65.
Such a violation of the right to a public trial
constitutes structural error, entitling a defendant to
relief without a showing of actual prejudice. la. at 65-
66. Relief is necessary because a public trial is a
"basic protection" whose "precise effects are
unmeasurable, but without which a criminal trial cannot
reliably serve its function." s, at 64. Sea also
Commonwealth v. Martin, 417 Mass. 187, 196 (1994).
C. Application of Law to Facts.
1. The first portion of the trial was
improperly closed to the public.
The trial court barred the public from attending
individual voir dire, thereby violating Greinederls
constitutional right to a public trial. The closure was
not limited to questioning regarding claims of personal
hardship by jurors, cf. Gordon, 422 Mass. at 823, but
covered the entirety of voir dire. The court made none
of the findings necessary to justify such a closure. It
neither explained why closure was necessary to "preserve
higher values" nor how blanket closure was "narrowly
tailored" to serve those values. It did not state that
alternatives had been considered and rejected or find any
4

logistical reasons for closure.3 As the court did not
make the necessary contemporaneous findings, closure
cannot be justified after the fact. United States v.
Antar, 38 F.3d 1348, 1361 (3d Cir. 1994).
2. Greineder i s entitled to relief.
Although there was no objection at trial to the
private jury selection procedure, a constitutional right
of this magnitude i s not waived merely by a failure to
object. “[Llike other fundamental trial rights, a right
to a public trial may be relinquished only upon a showing
that the defendant knowingly and voluntarily waived such
a right.“ Walton v. Brilev, 361 F.3d 431, 433 (7th Cir.
2004). There is no evidence that Greineder voluntarily
waived a known constitutional right. There was no
colloquy. Federal case law has established that loss of
the right to a public trial cannot be deemed
nonprejudicial. Indeed, as the court explained in Owens,
the error is a structural one, so prejudice is presumed.
Even if this Court holds that Greineder should have
objected to the closure at trial, his failure to do so
constituted ineffective assietance of counsel. ~ e e
Commonwealth v. Randolah, 438 Mass. 290. 294-296 (2002).
As in m:
3 Since the individual voir dire took place in a courtroom
and the other jurors were waiting elsewhere, there was clearly
enough space to accommodate some members of the public.
5

counsel's failure to object to closing the
trial for an entire day of jury selection, one
of the most important phases of a criminal
trial, deprived Owens of a substantial fair
trial right .... [We do not see how the
failure to object to the closure could have
been sound trial strategy.
483 F.3d at 64. Trial counsel's failure to object
deprived Greineder of his Sixth Amendment right to
effective assistance of counsel, so reversal is required.
The closure, an unconstitutional, structural. error,
also created a substantial risk of a miscarriage of
justice under M.G.L.c. 278, 533E. Greineder is entitled
to relief, even if the error is deemed unpreserved. I€
such an error was deemed sufficient in Owens to meet the
rigorous 52255 standard for relief, it certainly entitles
a defendant to relie€ under 533E. A structural error, one
that "infect[al the entire trial process," Neder v.
United States, 527 U.S. 1, 8 (1999), by definition
carries with it a risk of miscarriage of justice.'
11. THE TRIAL COURT'S ADMISSTON, OVER OBJECTION, OF
INCULPATORY DNA TEST RESULTS VIOLATED GREINEDER'S
CONSTITUTIONAL RIGHT TO CONFRONTATION AND THE
PROSCRIPTION AGAINST HEARSAY.
A. Statement of Relevant Facts.
A key piece of the Commonwealth's case was
In -, 434 Mass. 023, 832-833
12001), this Court held that excluding the public from jury
selection did not create a substantial likelihood of a miscarriage
of justice. After m, however, a showing of prejudice is not
required as a matter of federal law. See Commonwealth v. Muruhv, 448
Maas. 452, 462 (2007) (Massachusetts courts "give great deference to
decisions of Federal courts if they seem persuasive").
6

inculpatory DNA test results linking Greineder to the
knife and brown work gloves presumably used by his wife's
killer. The Commonwealth presented those results at trial
through the testimony of Dr. Robin Cotton, the forensic
laboratory director of Cellmark Diagnostics. She
testified that all of Cellmark's DNA testing in this case
was conducted by Wendy Magee and reviewed by Jennifer
Reynolds or Lewis Maddox. z. 11/207; 13/26-27. Neither
Magee, Reynolds, nor Maddox testified at trial.
Dr. Cotton testified that Cellmark conducted STR-
based DNA testing using the Profiler Plus@ and Cofiler@
testing kits. E. 11/210. On voir dire, she explained
that the testing process produces electronic data
recorded onto a CD-ROM and run through Genescan and
Genotyper software. z. 11/236; 12/17. The technical.
analyst decides which filters and scales to apply, thus
determining how much of the data appears a8 a series of
visible peaks on a printed diagram called an
"electropherogram." a. 11/186-188,242-243; 12/6-7, 195-
196, As Dr. Cotton explained:
- Id. at 7.
It's possible to display the data in a lot of
different ways, and adjust the scales of the
data, and essentially enlarge areas .... It's
flexible like that for a reason, because you
need that flexibility in doing the analysis.
Dr. Cotton testified that the electropherograms
7

.
reviewed and interpreted by the analyst do not contain
all of the electronic data. since some has been filtered
out. E. 12/197. Based on her interpretation of the
remaining data, the analyst instructs the computer which
peaks to label as actual DNA alleles. x. 11/190. Dr.
Cotton noted: “There are things that may show up as peaks
that we have to recognize are not real peaks.” a. The
determination of whether a peak represents an actual
allele or an “artifact“ is made by the analyst and
confirmed by the technical reviewer. z. Dr. Cotton did
not know whether the technical reviewer examined the
unfiltered electronic data in this case. E. 12/24.
Dr. Cotton didn‘t conduct any of the DNA testing,
serve as a technical. reviewer, or examine the underlying
raw empirical data. z. 13/27-28. She didn’t look at the
data with the stutter filters removed. s. at 163-164.5
Defense counsel’s objection to Dr. Cotton‘s testimony
reporting the DNA test results based upon her lack of
personal knowledge was overruled. E. 11/208-209.
Dr. Cotton proceeded to tell the jury the DNA
results reported by Wendy Magee on the three key items of
evidence in the case - the knife and brown work gloves
recovered from the storm drains at Morse Pond. She
Stutter filters remove all smaller peaks at each locus, 5.
13/142, thus making significant data unavailable to Dr. Cotton based
solely upon the unexplained discretion of the analyst.
8

testified that Greineder could not be excluded as a
contributor to the mixture of DNA found on each of those
three items, specifying the statistical likelihood of a
random match probability for the same combination of
alleles. Charts detailing those inculpatory test results
were distributed to the jurors during trial and made
available to them during deliberations. n. 12/13-60.
Having permitted Dr. Cotton to testify over
objection about the test results obtained by Wendy Magee,
the trial judge prohibited defense counsel from
introducing electropherograms displaying the raw,
unfiltered data underlying those same results. E.
13/111. In objecting to the admission of such materials,
the prosecutor declared:
This is a complex set of information, run
through a complex program. And there’s a lot
of variables, including the filters that you
talk of, to take out stutter, to take out
artifacts. And the person who did this and
made those decisions to sun it in a certain
way needs to get up there and verify that....
I Id. at 7 (emphasis added). Yet the person who made those
decisions for Cellmark (Wendy Magee) did not “yet up
there” and testify at trial.
B. Summary of Applicable Law.
An expert witness is permitted to rely upon facts or
data not in evidence in formulating an opinion, but
prohibited from describing those underlying facts or data
9

on direct examination. Commonwealth v. Markvart, 437
Mass. 331, 338-339 (2002). (” [Aln expert‘s direct
examination is not a vehicle for the introduction of
facts in evidence (other than those the expert directly
observed). . . .“) Thus, in Commonwealth v. Evans, 438 Mass.
142, 152 (2002), this Court held that the trial court
erred in permitting a laboratory technician to testify
about the results of testing performed by someone else.
Similarly, in Commonwealth v. McNickles, 434 Mass. 839,
855-857 (2001), the Court concluded that Dr. Cotton
ahould not have been permitted to testify on direct
examination about observations made by other Cellmark
analysts. :f. Commonwealth v. Saarks, 433 Mass. 654, 659-
660 (2001) (no error in admitting Dr. Cotton’s testimony
about test results where she conducted “an independent
review of the empirical data separate and apart from the
review undertaken by [the analyst]“ which “encompassed
all that the original [staff scientist had done] .“);
Commonwealth v. Rill, 54 Mass. App. Ct. 690, 694-697
(2002) (to the same effect) .‘
Hill (and presumably Suarks) involved older DNA testing
methodologies where Cellmark’s case folder contained all of the raw
empirical data relied upon by the technical analysts in interpreting
test results. See Hill, 54 Mass. App. Ct. at 695, n.5. In the
instant case, however, both the testing methodology employed and the
contents of Cellmark’s case folder were dramatically different.
Here, the printed electropherograms constituted ahridged versions of
the raw, electronic data produced by the testing process, and
explanations for the subjective, discr@tionary interpretations made
by the technical analyst, critical to shaping Cellmark’s reported
(continued.. .)
6 -
10

This Court held in Bmmonwealth v. Nardi, 452 Mass.
379 (2008). that it was error for a doctor to testify
about findings in another doctor's autopsy report which
involved the exercise of judgment and discretian. a. at
393. Presentation of those findings through another
witness was "inadmissible hearsay and testimonial in
nature." a. at 392. As this Court recognized in Nardi,
Crawford v. Washinqton, 541 U.S. 36 (20041, established
a constitutional bar to the admission of test results
through a witness who did not perform the testing.
C. Application of Law to Facts.
Dr. Cotton's testimony reporting the DNA test
results generated by Wendy Magee was blatant, testimonial
hearsay. Admission of that evidence, over objection,
violated Greineder's rights to confrontation under the
Sixth and Fourteenth Amendments and Article XII. While
Dr. Cotton did review the case file, she did not examine
the raw, unfiltered, empirical data. Rather, she only saw
what remained after Magee instructed the computer which
data to filter out and which peaks to label as DNA
alleles. She was thus not competent to interpret or opine
about the xaw data, which she had never seen, ox explain
the decisions made by Wendy Magee and the technical
6(...continued)
test results, were unknown to the testifying witness
11

eviewers in filtering out portions of the raw data and
selecting peaks to label as true alleles. As in Evans,
McNickles, and Nardi, Dr. Cotton was simply reporting the
results of another scientist's exercise of judgment and
discretion. Those inculpatory results were effectively
insulated from confrontation and cross-examination as a
result of this improper, second-hand presentation. Given
the importance of the DNA evidence to the Commonwealth's
case, this preserved error was clearly not harmless
beyond a reasonable doubt. It was prejudicial error,
requiring reversal of Greineder's conviction.
111. GREINEDER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY
THE PROSECUTOR'S CROSS-EXAMINATION AND CLOSING
ARGUMXNT.
A. Statement of Relevant Facta
1. Timeline.
When the police responded to Morse Pond, Greineder
was first questioned by Detective McDermott and then by
Trooper Foley. D. 6/249-262; 10/37-61. Greineder was
then taken to the Wellesley police station, where he
called Attorney Terry Seqal, who came to the station.7
Id. at 63-72. Police later applied for a search warrant
for Greineder's residence, which they executed early the
following morning. At that: the, Greineder was informed
The motion judge found that after attorney segal arrived
and spoke to Ereinecier, Greineder informed McDermott Chat Begal had
told him not ta speak wi.th them anymore. &. 16.
12

of his Miranda rights. a. at 112-124.
2. The Commonwealth's evidence regarding
Greineder's statements about trying to
assist his wife.
BothMcDermottand Foley testified about Greineder's
statements respecting his attempts to assist Ms.
Greineder. McDermott testified that Greineder told her
that he tried to "rouse" his wife. She testified that
Greineder later stated that he touched his wife's body
after returning from his van, but did not indicate
exactly how. E. 6/251-261; 7/15-28, 123, 130. Foley
testified:
He [Greinederl told me that he tried to pick
her up. Be said that he couldn't pick her up.
She weighed 120 lbs., and he used to be able
to lift 250 Lbs. and he couldn't lift her, she
was like a dead weight.
- Tr. 11/109-110.
3. Greineder's direct teatimony.
Greineder testified that he tried to pick up his
wife three times, first while kneeling at her right side.
Then he stepped over her and tried again. When that did
not work, he went to the other side of her body, squatted
down, and again tried to lift her. z. 20/78-82. He was
then told to back away and did so. Greineder remembered
"sort of backing up on my knees, and kneeling in or next
to a bloodstain in the middle of the path. a. at 93-94.
4. Cross-examination of Greineder about
efforts to pick up Ma. Greineder.
13

On cross-examination, the prosecutor xepeatedly
attacked Greineder's testimony that he attempted to pick
up Ms. Greineder three times, focusing on his failure to
tell the police this detail earlier and suggesting that
his trial testimony had been fabricated in response to
the Commonwealth's evidence and in an effort to buttress '
the defense case. The prosecutor asked Greineder: "You
never told the police that [you tried to pick up your
wife a number of times] prior to today, did you?"
Greineder replied: "They never asked. 'I E. 20/144. The
prosecutor continued, asking Greineder twice whether "the
first time you ever mentioned that to anybody in any kind
of law enforcement capacity was here today at trial." a.
at 146 (emphasis added). Defense counsel's objection was
twice sustained. Undaunted, the prosecutor continued:
" [Wlhen you spoke to investigators about the death of
your wife, did you aver mention that you had tried to
pick her up more than once?" a. (emphasis added)
The prosecutor implied that expert testimony
regarding stains on Greineder's jacket had prompted a
change in Greineder's story: "[Dlid the testimony
regarding this jacket have anything to do with jarring
your memory on that?" B. 20/152. When Greineder denied
this, the prosecutor then asked whether Greineder thought
it was important to mention his multiple attempts to pick
14

up Ms. Greineder . Greineder replied: "It didn' t come up. "
a. at 153-154. The prosecutor continued to question
Greineder about his failure to tell officers that he had
tried three times to pick up his wife. E. 21/88-89.
Finally, he questioned Greineder about his contact
with Stuart James, a defense expert, implying that
Greineder's trial testimony was tailored to support
James' opinion. He asked: "Nothing happened over this
weekend to make you recollect things better .... You
didn't have any conversation with a Stuart James over
this weekend that caused you to remember lifting your
wife on three occasions?" u. at 107-108. Greineder
replied that he had never spoken with James. a.
5. Croaa-examination of Greineder about heel
mark.
The prosecutor also asked Greineder whether he told
Foley that he was on his knees and then backed into the
pool of blood. He implied that Greineder had fabricated
this testimony after hearing Det. Rebeiro's trial
testimony: "You didn't ever say that until you heard
Deborah Rebeiro talk about your heel mark in that blood. 'I
E. 20/149-151. He further questioned Greineder about the
positioning of his body as he attempted to pick up Ms.
Greineder:
Q: And as you remembered today, sir, at the
close of the Commonwealth's case, is it
important to you that you're not kneeling
15

A: No.
in such a way so that your feet are
behind you?
Q: Did you come to that realization this
weekend, by any chance, sir?
A: No.
z. 21/103.
6. Prosecutor's closing argument.
In his closing, the prosecutor argued that
Greineder's testimony that he tried to pick up Ms.
Greineder three times was concocted to support Stuart
James' blood spatter testimony and stressed that
Greineder had not provided this account previously. n.
25/63. He returned to this theme later, claiming that
Greineder's story did not emerge "until ".. Stuart James
told him" about the spatter evidence. Id. at 78. Finally,
he contended that Greineder's "story" of trying to pick
up Ms. Greineder three times was the product of "a year-
and-a-half of careful construction." =. at 87-88.
B. Sununary of Applicable Law.
1. Ban on exploiting post-arrest silence.
'I [A] defendant's silence after Miranda warnings have
been given may not be used to support an inference of
guilt." Commonwealth v. Brown, 451 Mass. 200, 208 (ZOOS),
citinq Doyle v. Ohio, 426 U.S. 610, 617-618 (1976). That
"absolute prohibition is not negated when a defendant
16

waives that right and makes voluntary statements to
investigators." Commonwealth v. Richgtte, 59 Mass. App.
Ct. 524, 526 (2003). If a defendant does make a
statement, direct contradictions between that statement
and the defendant's trial testimony can be brought out.
Commonwealth v. Lavalley, 410 Mass. 641, 648-650 (1991).
The prosecutor may not emphasize what a defendant "failed
to say," but may only "argue that what he did say was
wholly incompatible with the defense proffered at trial. ''
Richotte, 59 Mass. App. Ct. at 529.
2. Ban on comment on pre-arreat silence.
This Court has held:
[Ilmpeachment of a defendant with the fact of
his prearrest silence should be approached
with caution, and, wherever it is undertaken,
it should be prefaced by a proper
demonstration that it was 'natural' to expect
the defendant to speak in the circumstances.
Commonwealth v. Nickerson, 386 Mass. 54, 63 (1982). It
may not always be "natural" for a witness to disclose
even exculpatory information since "the witness ... may
not realize the significance of the information he
possesses." a., at 58 n.4.
3. Ban on suggesting that a defendant has
tailored testimony to fit trial evidence.
A defendant has the right to "wait until after the
prosecution ha[sl made its case before revealing his
story." Commonwealth v. Beauchama, 424 Mass. 682, 690-691
17

(1997). While the prosecutor can attack a defendant's
credibility, "the prosecutor may not elicit evidence of
the defendant's silence, his request for an attorney, or
the discussions the defendant had with his attorney to
argue that the defendant fabricated his story." Id. at
691 (holding improper an argument "that because the
defendant sat through all the Commonwealth's evidence he
was able to fabricate a cover story tailored to answer
every detail of the evidence against him"). Similarly, a
prosecutor may not argue that a defendant "used his
access to the Commonwealth's evidence before trial to
conform his testimony falsely to fit the evidence against
him." Commonwealth v. Ewinq, 67 Mass. App. Ct. 531, 542
(2006). Such an argument infringes on the defendant's
"right to prepare far trial." a.
C. Application of Law to Facta.
The prosecutor deliberately and repeatedly violated
the defendant's right not to be punished for exercising
his constitutional rights by invoking Greineder's
pretrial silence and opportunity to hear the evidence at
trial when he urged the jury to reject his testimony. The
prosecutor relied heavily in cross-examination, over
objection, and closing argument on Greineder's failure to
disclose prior to trial that he attempted to pick up his
wife three times. According to the prosecutor, the fact
18

that Greineder had never mentioned this detail before was
cause to deem it a fabrication. This is exactly the
argument prohibited by law! Greineder was entitled to
wait until trial to disclose his detailed account, and
the fact that he chose to do so was not grounds for
arguing that he should be disbelieved.
This serious error was compounded by the
prosecutor's exploitation of Greineder's right toprepare
for trial and to be present during trial by repeatedly
implying that Greineder's testimony was fabricated to
meet the Commonwealth's case-in-chief. Further, he
implied that Greineder'a testimony was concocted to
buttress testimony provided by Stuart James.' Those
suggestions were constitutionally impermissible. The
repeated and intentional misconduct here amounted to a
concerted assault on the defendant's credibility, a key
issue in the case. No curative instructions were ever
given, and reversal is required.
IV. THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT AND
HIGHLY PREJUDICIAL EVIDENCE ABOUT GREINEDER' S
EXTRAMARITAL SEXUAL ACTIVITIES.
A. Statement of Relevant Facta.
The prosecutor had absolutely no good faith basis to
believe that Greineder had spoken to James over the weekend prior to
hi8 testimony, yet he asked questiona regarding auch an imagined
conversation and argued in closing that the nonexistent conversation
took place. a, -, Commonwealth v. Fordham, 417 Mass. 10, 20
(1994) (error €or prosecutor "to communicate impressions by innuendo
through questions which are answered in the negative ... when the
questioner has no evidence to support the innuendo").
19

The facts respecting the Commonwealth's admission
and exploitation of a plethora of evidence respecting
Greineder's extramarital sexual activities axe detailed
at pp. 52-62 of the Memorandum of Law in SUppOrt of
Defendant's Motion for New Trial (A. 179-189)and at pp.
28-40 of Defendant's Post-Hearinq Memorandum of Law
Respectinq Ineffective Assistance of Counsel Claims
Unrelated to Expert Testimony. (A. 818-830)
B. Summary of Applicable Law.
1. Admissibility of prior bad acts.
"Prior bad acts are not admissible to show that the
defendant has a criminal propensity or is of bad
character. I' Commonwealth v. Robertson, 408 Mass. 747. 750
(1990). Such evidence is admissible when it "pertains to
the defendant's knowledge, intent, motive, method,
identity or some other relevant issue at trial."
Commonwealth v. Leonard, 428 Mass. 782, 786 (1999).
Relevance determinations are made by the trial judge, who
must also decide "whether the probative value of the
evidence is outweighed by its prejudicial effect." a.
Evidence that the defendant used an alias may constitute
a "gratuitous, improper, and prejudicial attack on the
defendant's character and credibility." Commonwealth v.
Martin, 442 Mass. 1002, 1003 (2004). Mistaken evidentiary
rulings may violate a defendant s right to due process if
20

they render the trial fundamentally unfair. Dowlina v.
United States, 493 U.S. 342, 352 (1990) I
2. Extramarital. sexual activity i6 relevant to
motive to commit murder only when combined
with overt evidence of hostility.
This Court has held that ll[e]vidence of a hostile
relationship between a defendant and his spouse may be
admitted as relevant to the defendant’s motive to kill
the victim spouse. ‘‘ Commonwealth v. Rosenthal, 432 Maas.
124, 127 (2000). However, sexual infidelity alone has
never been equated with a “hostile relationship. ‘I Tn
every case where the Court has treated prior bad acts of
extramarital sexual activity as relevant evidence of
hostility, the defendant also engaged in physical abuse
or expressed disdain towards the victim.’ As other
jurisdictions have recognized, evidence of extramarital
sexual relationships is not, without more, probative of
a motive to commit uxoricide.l’
9
See, m, Commonwealth v. DeMarCO, 444 Mass. 678, 683
(2005); Commonwealth v. Mas raw, 426 Mass. 589, 596 n.9 (1998);
Commonwealth v. Bonomi, 335 MaSS. 327, 340 (1957); Commonwealth v.
Howard, 205 Mass. 128, 133 (1310).
10 ~n casterline v. Scats, 736 S.W.2d 207, 211-212 (TeX.
Ct. App. 1987), the Texas Court of Criminal Appeals held:
Evidence of a troubled marriage alone does not establish
a motive to kill. Spouses in a troubled marriage may be
neither jealous nor emotional, and even if they are,
that jealousy or emotion need not necessarily create a
homicidal motive. It would be highly speculative to
infer that marital infidelity. standing alone. created
a homicidal motive.
See Peoule v. Hendricks, 137 Ill. 31, 54-55, 560 N.E.2d 661 (1990).
-
21

3. The Commonwealth may not misuse evidence
admitted for a limited purpose or refer
to "facta" which were not admitted at
trial in its cloaing argument.
The Commonwealth's misuse of evidence introduced for
a limited purpose is error and may create a substantial
risk of unfair prejudice. See, e.q., Commonwealth v.
Rosa, 412 Mass. 147, 157 (1992). Prosecutors must limit
their arguments "to facts in evidence and inferences that
may reasonably be drawn from the evidence." Commonwealth
v. Coren, 437 Mass. 723, 731 (2002).
4. Standard of review.
The trial court's determination of whether evidence
is relevant and, if so, whether it is more probative than
prejudicial, is reviewed for "palpable error.
Commonwealth v. Talbot, 444 Mass. 586, 589 n.2 (2005).
In adjudicating a claim of error during the
Commonwealth's closing argument, a reviewing court
considers:
(1) whether the defendant seasonably objected;
(2) whether the error was limited to
collateral issues or went to the heart of the
case; (3) what specific ox general
instructions the judge gave the jury which may
have mitigated the mistake; and (4) whether
the error, in the circumstances, possibly made
a difference in the jury's conclusions.
Commonwealth v. Perez, 444 Mass. 143, 151 ( 2005).
C. Application of Law to Pacts.
1. The sex evidence was inadmissible.
22

Prior to trial, the Commonwealth managed to convince
the court to admit explosive evidence sullying the
defendant's character on a false premise. Desperately
seeking admission of such evidence, the prosecutor
characterized it as demonstrating a Ilhostile
relationship" probative of motive. D. (1/25/01)/39-40.
Yet the plethora of evidence regarding Greineder's
extramarital sexual activities (and use of an alias in
connection with those activities) admitted at trial did
not provide any link in a chain of evidence proving that
the defendant had a motive to murder his wife. There was
no evidence introduced to suggest that Ms. Greineder
intended to leave Greineder, nor was there any evidence
of hostility between the two. Hence, the sex evidence was
simply not relevant and should have been excluded.
Even if Greineder's extramarital sexual activity had
some conceivable relevance on the issue of motive, any
probative value was far outweighed by the resulting
unfair prejudice. Evidence that Greineder was involved in
extramarital sexual activity, including the use of
prostitutes, group sex, and sadomasochism, was a
transparent attack on his character. Tf Greineder could
lead this secret, repulsive double life, couldn't he also
have secret, repulsive plans to murder his wife? That
implicit suggestion permeated the Commonwealth's case,
23

then was hammered home in closing argument. It was
patently improper, but it worked!
In ruling on Greineder's motion limine, the trial
court allowed the Commonwealth to present evidence about
his sexual activities during the seven days prior to Ms.
Greineder's death. This putative compromise was wholly
ineffectual. The practical result of the ruling was to
make it appear that in the week prior to his wife's
murder, Greineder had suddenly engaged in a wild burst of
extramarital sexual activity. The jury would undoubtedly
have been tempted to infer some connection between this
unprecedented behavior and the murder. To negate that
unfair and erroneous inference, Greineder was forced to
introduce evidence of a longer history of extramarital
sexual activity himself. In the end, the court's ruling
did nothing to protect Greineder from an unfair trial.
2. The Comonwezllth misuaed the sex evidence
during closing argument.
Having hoodwinked the court into believing the sex
evidence was tied to motive, the Commonwealth abandoned
that bogus theory entirely in closing argument. The
prosecutor's inability to connect the sexual evidence in
any way to Ms. Greineder's murder did not deter him from
bringing up the sordid details one more time, improperly
connecting Greineder's sexual activities with the murder:
I wish I could tell you exactly how a person
24

gets to that point [i.e., to commit murder1 in
their own life. I can't. I can't tell you how
a person gets to the point where he's doing
many things that this Defendant was doing.
E. 25/95.''
To make matters worse, the prosecutor referred to
several "facts" which were unsupported by the evidence.
Re told the jury that Greineder had described his wife as
"old and soft," and that Greineder had been seeking out
a woman named "Elizabeth" with whom he had "a long term
standing relationship." B. 25/61. Neither of these
"facts1' was in evidence ." The unfair prejudice resulting
from these fabrications was substantial.
3. Conclusion.
Evidence regarding Greineder's extramarital sexual
activities had no proper place at trial. The Commonwealth
broke its promise to use such evidence solely to
establish Greineder's motive to murder his wife.
Nevertheless, the evidence came in, through witness after
witness, until the Commonwealth had achieved its real
objective of destroying the defendant's character. The
erroneous admission and misuse of this toxic bad acts
evidence contributed significantly to the jury's verdict
li The phrase "many things that this Defendant was doing"
cannot have referred to anything but the extramarital sexual
activities highlighted so many times during trial.
12
On cross-examination, Greineder speciPically denied
that he had made either statement. Tr. 20/169-170. There was no
evidence to the contrary presented at trial.
25

and violated Greineder's right to a fair trial.
V. THE MOTION JUDGE ERRED IN DENYINU GREINEDER'S
MOTION FOR NEW TRIAL BASZD UPON THE RECANTATION OF
DEBORAW REBEIRO.
A. Statement of Relevant Facts,
The facts relevant to this claim are set forth at
pp, 2-11 of Defendant's Supplemental Memorandum of Law
Resrsectinq Recanted Expert Testimony in Support of
Amended Motion for New Trial (A. 892-901). Judge Chernoff
addressed this claim at pp. 60-68 of his Rulinq. (A. 971-
979).
B. Summary of Applicable Law.
1. Recantation by prosecution witness as
grounds for new trial.
Recantation of trial testimony by a prosecution
witness may warrant: the granting of a new trial. See,
e.q., Commonwealth v. Rutledse, 356 Mass. 499 (1969). A
recantation merits "serious consideration from the motion
judge." Commonwealth v. Raymond, 424 Mass. 382, 397
(1997). This Court's decisions dealing with recantations
typically cite the prejudice standard governing new trial
motions based on newly-discovered evidence. &e, e.4..
z.; Commonwealth v. Grace, 397 Mass. 303, 306 (1986).
2. Recantations in other jurisdictions.
A recantation of trial testimony may cast serioua
doubt on the justice of a conviction. Martin v. United
26

States, 17 F.2d 973, 976 (5th Cir. 1927). Many
jurisdictions have crafted standards specifically for
evaluating new trial motiona based on them. The best
known of these, the so-called Larrison test, puts its
primary focus on determining whether the testimony given
at trial was false. a Larrison v. United States, 24
F.2d 8 2, 87-88 (7th Cir. 1 928). Most recantations cannot
clear this hurdle, but in the rare case where the
recantation i s deemed credible (and the testimony at
trial thereby deemed false) , the prejudice requirement
for granting relief is relaxed so that a movant need only
show that "the jury might have reached a different
conclusion" in order to obtain relief. United States v.
Willis, 257 F.3d 636, 647 (6th Cir. 2001) (emohasis
W) .33
3. Conatitutional right to disclosure of
exculpatory information.
Under Bradv v. Marvland, 373 U.S. 83 (1963), and its
progeny, a defendant is denied due process when the
prosecution fails to disclose material, exculpatory
information prior to trial. Commonwealth v. Healv,
l3
For other jurisdictions adopting some variant of the
Larriaon teat. s, u.. United States v. Lofton, 233 F.3d 313, 318
(qth Cir. 2000) : United States v. MeYexs, 484 F.2d 113, 116 (ja Cir.
1973); HooPer v. state. 680 N.W.28 89, 94 (Minn. 2004); State v.
w, 700 A.2d 161, 165 (Del. super. 1996); State v. Britt, 360
S.E.2d 660. 664-665 (N.C. 1987); State v. Scrosains, 110 ID 380,
384-385 (1985) ; Marshall v. State, 305 N.W.2d 838 (S.D. 1981) ;
Y. Maeole, 617 P.Zd 820, 824 (Hawaii 1980).
27

438 Mass. 672, 434-435 (2003). Two important features of
the Bradv rule expand its scope beyond intentional
nondisclosure by a malicious prosecutor. First, knowledge
by any member of the prosecutorial team is imputed to the
prosecutor. See, a, Kvles v. Whitlev, 419 U.S. 419,
437 (1995); Commonwealth v. Martin, 427 Mass. 816, 823
(1998). As this Court has noted, prosecutorial misconduct
can include the "inept and 'bungling' performance of the
police, which is attributed to the [prosecutor] ."
Commonwealth v. Olszewski, 401 Mass. 749, 753 (1988).
Second, there is no requirement of bad faith to establish
a violation of due process. United States v. Aqurs, 427
U+S. 37, 110 (1976); Bradv, 373 U.S. at 87-88 (violation
does not turn on whether nondisclosure waa product "of
guile"). Reversal is required if there is a "reasonable
probability## that, had the material been disclosed, the
result would have been different. United States v.
Bacrlev, 473 U.S. 667, 682 (1985). The "question is not
whether the defendant would . . . have received a different
verdict," but rather whether the defendant received a
fair trial. Kvles, 419 U.S. at 434.
Under Massachusetts law, the standard of prejudice
required for relief depends on whether a specific request
was made for the information. Commonwealth v. Tucceri,
412 Mass. 401, 407 (1992); Commonwealth v. Gallarelli,
28

399 Mass. 17, 21 n.5 (1987). In Gallarelli, the Court
held that a request for all 'police reports and
scientific reports" was sufficient to cover relevant
laboratory reports. a. at 21-22. When the prosecutor
fails to turn over exculpatory information which had been
specifically requested, the court "must set aside the
verdict unless it is sure that the error 'did not
influence the jury or had but a very slight effect."'
'Commonwealth v. Lykus, 451 Mass. 310, 326 (2008)
4. Constitutional right to fair trial based
on reliable evidence.
A defendant's right to due process under the Fifth
and Fourteenth Amendments protects him from conviction
based on unreliable evidence. California v. Green, 399
U.S. 149, 188 n.20 (1970). That due process guarantee may
require a new trial based on newly-discovered evidence.
In Cooqan v. McCauqhtry, 958 F.2d 793, 801 (7th Cir.
1991), the court wrote:
In some situations newly-discovered evidence
is so compelling that it would be a violation
of the fundamental fairness embodied in the
Due Process Clause not to afford a defendant a
new trial at which the evidence could be
Considered.
In the recantation context, fundamental fairness may
require a new trial, even in the absence of bad faith.
United States v. Younq, 17 F.3d 1201,1203 (9th Cir. 1994) .
29

5. Standard of review.14
A new trial motion is general1 committed to the
discretion of the trial judge. Commonwealth v. Schand,
420 Mass. 783, 787 (1995). If, however, the original
trial was infectedwithprejudicial constitutional error,
the judge has no discretion to deny the motion.
Commonwealth v. Cowie, 404 Mass. 119, 123 (1989). In
reviewing the denial of a new trial motion, an appellate
court considers whether the motion judge committed a
significant error of law or other abuse of discretion.
Commonwealth v. Perkins, 450 Mass. 834, 845 (ZOOS). On
appellate review, the judge's findings of fact after an
evidentiary hearing will be aclcepted if supported by the
record. Commonwealth v. Walker, 443 Mass. 213, 224
(2005). The reviewing court may reject findings which are
clearly erroneous. Commonwealth v. Cast, 407 Mass.
891,897 (1990). Where the denial of a motion for new
trial i s considered along with the direct appeal from a
conviction for first degree murder, this Court must
determine whether, under t4.G.L.c. 278, S33E, there is a
substantial likelihood of a miscarriage of justice.
Commonwealth v. Dubois, 451 Mass. 20, 30 (2008).
C. Application of Law to Facts.
14
This standard of review applieEt to all of the issues
raised by Greineder's motion for new trial.
30

1. Rebeiro's trial testimony was false, and
her recantation was credible.
There can be no doubt that Rebeiro' s recantation was
honest and reliable. She would not have volunteered her
affidavit, exposing herself to professional embarrassment
and potentially imperiling the conviction, unless it were
true. Moreover, Rebeiro's recantation is strongly
corroborated by Bodziak's affidavit, the catalyst
prompting Rebeiro to change her tune. In sum, this Court
should credit Rebeiro' s recantation and conclude that her
trial testimony that Greineder's heel mark was adjacent
to a drag mark leading to Ms. Greineder's body was false.
2. Rebeiro's erroneous trial testimony
seriously prejudiced the defense.
The connection between Greineder' 6 alleged heel mark
and the drag mark found near Ms. Greineder's body was a
key part of the Commonwealth's case. The "heel mark" was
discussed by the prosecutor in his opening, addressed at
length by Rebeiro, and emphasized in the prosecutor's
closing argument. The significance of this evidence was
clear - if the jury believed Rebeiro' s uncontradicted
testimony about Footprint #7. it could conclude that
Greineder had dragged Ms. Greindex's body to its final
resting place and thus, almost certainly, was her killer.
The prosecutor also used this false testimony to
undermine Greineder's credibility and suggest that he had
31

concocted his testimony to fit the evidence.
The defense did not offer any explanation of the
"heel mark, " cross-examine Rebeiro about Footprint #7, or
give the jury any reason to disbelieve her testimony.
Defense counsel said nothing about Footprint #7 in
closing argument, presumably because he had nothing to
say. That evidence thus stood as an important, unrebutted
piece of the Commonwealth's case. As the motion judge
noted, this evidence was "significant" in light of the
Commonwealth's contention, "persuasively dr[ivenl home
to the jury,II that it was "strongly probative1' of
Greineder's guilt. 8. 975-976, 979. Rebeiro's
recantation, if available at trial, would have completely
eviscerated the inculpatory quality of this unrebutted
testimony.
The recantation evidence would have been important
for another reason as well. Much of the Commonwealth's
case was based on the credibility of ita coterie of
experts who testified, inter alia, about blood spatter,
footprint, fiber, and DNA evidence. If the defense had
been able to present Rebeiro's recantation to the jury,
it would have had the probable effect of casting doubt on
the Commonwealth's entire phalanx of experts.
3. Greineder I s entitled tQ relief.
a. Greineder is entitled to relief
under the Larrison atandard.
32

As noted above, many jurisdictions have adopted a
legal standard for evaluating prejudice in reliable
recantation cases that is moce generous than in other
newly-discovered evidence cases. This Court should adopt
a similar test. Under Larrison, there is no doubt that
the jury might have reached a different conclusion had
Rebeiro's recantation been presented so Greineder is
clearly entitled to relief.
b. Greineder is entitled to relief
under federal constitutional law.
The significance that the recanting witness was a
government agent cannot be overstated. Under such
circumstances, this Court should apply a Bradv-type
analysis. That line of cases is specifically designed to
deal with mistakes by a member of the prosecution team
that affect the accuracy of the information presented to
the jury at trial. Here, it was the malfeasance of the
prosecution team itself that tainted the presentation of
evidence to the jury, violating the defendant's right to
a fair trial.I5 Under auch Circumstances, this Court
should apply a "reasonable probability'' test in
l5 COnSideK the following two scenarios: In the first,
Rebeiro testifies that the footprint was that of a heel, while
Lunbeknomst to the prosecutor) there is a prior affidavit authored
by Rebeiro which indicates that the print was that of a toe, a
document never turned over to the defendant in violation of w.
Xn the second, as here, the conflicting affidavit is produced after
trial. It would be truly anomalous if a defendant in the first
scenario were entitled to a new trial, while the defendant in the
second were denied any relief.
33

determining whether the prejudice flowing from the
erroneous testimony requires a new trial. Under that
test, Greineder is clearly entitled to relief.lb
c. Grelneder is entitled to relief
under Gallarelli.
Greineder's pre-trial motion for all scientific test
results was allowed by agreement. Docket #14, E. 4/10/00
at 5; 8. 24. Under Gallarelli, that request was
sufficiently specific to encompass Rebeiro's accurate
opinion, as revealed in her post-trial affidavit. The
Commonwealth's failure to produce this exculpatory
evidence resulted in a trial tainted by the presentation
of false, unreliable expert testimony. This Court cannot
be sure that such nondisclosure "did not influence the
jury or had but a very slight effect," so Greineder is
entitled to relief.
d. Grelneder ia entitled to relief
under the newly-discovered evidence
standard .
Even under the newly-discovered evidence standard,
Judge Chernoff abused his discretion in denying relief.
Given the centrality of this testimony to the
Commonwealth's case, it cannot fairly be said that the
erroneous evidence was not a "real factor" in the jury's
16 In his Findinss, the motion judge noted that if "a
strict due process standard of review" were applied, it "might well
result in an order for a new trial." F1ndinq-B at 61 n.11, 8. 972.
34

deliberations. Judge Chernoff is correct that " It1 he jury
could have diacounted all the footprint evidence and
still found beyond a reasonable doubt that the defendant
killed his wife." &. 978. That, however, is not the test.
Rather, the question is whether the admission Of
critical, unrebutted expert testimony emphasized by the
prosecutor in closing argument likely affected the jury's
week-long deliberations. Under that legal standard,
Greineder is clearly entitled to relief. As another court
wrote in a similar context:
The .. . expert's testimony was damning - and
it was false.. . . [the defendant] has the right
to be tried, insofar as possible, on the basis
of true and correct evidence; to deny him this
right is to deny him a fair trial.. . . IT] o
allow a conviction to be based even in part on
such manifestly inaccurate and prejudicial
testimony ,.. would be a serious injustice.
State v. Caldwell, 322 N.W.2d 574, 586 (Minn. 1982).
VI. THE MOTION JUDGE ERRED IN DENYING GREINEDER'S
MOTION FOR NEW TRIAL BASED UPON THE DELIBERATING
JURY'S EXPOSURE TO EXTWEOUS INFORDdATION.
A. Statement of Relevant Pacts.
The specific facts relating to this claim, including
the evidence adduced at a post-trial evidentiary hearing,
are set forth at pp. 3-16 of Defendant's Post-Hearinq
Memorandum of Law Resuectinq ExDoaure of Deliberating
JUZY t o Extraneous Information. A. 738-751. Judge
Chernoff denied the portion of Greineder's motion for new
trial raising this claim by order dated May 5, 2006. A.
35

773.
B. Summary of Applicable Law.
The requirement that a jury's verdict be based
solely upon evidence presented in the courtroom is
guaranteed by the Sixth and Fourteenth Amendments and
Article XII. The exposure of a deliberating jury to
specific information about the case which was not
introduced into evidence in the courtroom undermines the
fairness of a criminal trial. See Commnnwealth v. Cuffie,
414 Mass. 632, 638 (1993 . Since Commonwealth v. Fidler,
377 Mass. 192 (1979), it has been settled that the
exposure of a deliberat ng jury to "extraneous matter"
entitles a defendant to a new trial unless the
Commonwealth proves beyond a reasonable doubt that the
defendant was not prejudiced thereby.
1. Jury experiment as extraneous information.
An experiment conducted by the deliberating jury may
improperly expose the jury to extraneous information.
See Annotatipn, Protsrietv of Juror's Tests or Experiments
in Jurv Room, 31 A.L.R. 4th 566, 593-597(1984) (collecting
cases). This Court has equated experiments conducted in
the jury room with receipt of outside information under
the Fidler/CuffiP standard. See, e.q., Commonwealth v.
Beauchame, 424 Mass. 682, 691 (1997). In one leading
civil case, the Court a€firmed a grant of a new trial
36

where the jury had experimented with the heel of a shoe
in evidence by inserting a nail into it. Bruns v. Jordan
Marsh Co., 305 Mass. 437 (1940).
The line between a permissible examination of
evidence on the one hand and an impermissible experiment
on the other is often murky. Jurors are free to
manipulate evidence, even taking an exhibit apart and
putting it back together, to take a ”closer look” at it.
&e, e.q., People v. Boqle, 41 Cal. App. 4’.h 770, I71
(1995) (jurors used keys in evidence to unlock safe in
evidence). Jurors may also use objects, even those not in
evidence, to demonstrate a common sense principle ox to
illustrate an argument. See, e.q., Gentrv v. State, 236
Ga. App. 820, 823 (1999) (juror used a toy car and a
coffee cup to replicate collision at issue).
When jurors go beyond these acceptable means of
evaluating evidence and conduct experiments using foreign
materials, their acts become improper.17 In so doing,
17 u, m, Miller v. Harvey, 566 F.2d 879, 881 L4‘”cir.
1977) (juror bit another juror on the arm so jury could observe
resulting bruisea and compare them to alleged human teeth marks
identified in a photograph by a trial witness) ; United States v.
u, 371 F. Supp. 361, 369 (D.S.C. 1971), Effd. 496 P.2d 861
(4rh Cir. 1973) (use of adhesive tape by juror to test whether
residue would be left on skin once it was applied and removed as
argued by defendant); Carter v. state, 753 S.W.?d 432 (Tex. App.
1988) (jury conducted experiment to determine whether defendant’s
account of how liquid splashed when he fell was credible); Ex Parte
Thomas, 666 So.2d 855 (Ala. 1995) (jurors used rope not in evidence
to tie a juror‘s hands and conduct an experiment to resolve a
disputed issue); United States v. Nevell, 28 F.3d 109(gLh Cir. 1994)
(jury conducted an experiment with M k M‘s to test prosecution‘s
theory of the case).
37

they produce new evidence subject to neither screening by
the trial judge nor testing via cross-examination,
thereby exposing themselves to extraneous information.
2. Prejudice.
Once the motion yudge finds that a deliberating
juror was exposed to extraneous matter, the burden shifts
to the Commonwealth to prove beyond a reasonable doubt
that the defendant was not prejudiced thereby.
Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). This
legal test is comparable to the harmless error standard
applied to review of preserved constitutional error. See
Chauman v. California, 386 U.S. 18, 24 (1967). In
determining whether an error was harmless beyond a
reasonable doubt, " [t] he essential question i s whether
the error had, or might have had, an effect on the jury
and whether the error contributed or might have
contributed to the verdict." Commonwealth v. Molina, 439
Mass. 206, 212 (2003). All doubts must be resolved in
favor of the defendant. Commonwealth v. Vardinski, 438
Mass. 444, 452-453 (2003).
In the ordinary case, the court assesses prejudice
by determining whether the exposure would have affected
a hypothetical average jury. Fidler, 377 Mass. at 201.
While the trial court ahould not seek to elicit testimony
about the actual effect of extraneous information on the
38

jury, if “a judge learns that a juror has, in fact, been
influenced by extraneous information, there must be a new
trial.“ Kincaid, 444 Mass. at 392.’’ The actual impact
test has never been interpreted to allow the Commonwealth
to meet its burden by showing that none of the
deliberating jurors was actually affected. It is hard to
imagine how the Commonwealth could ever prove that no
juror was affected by extraneous information since Fidler
prohibits eliciting testimony on that point, and it is
inconceivable that all 12 jurors would independently
volunteer such information absent inquiry.
C. Application of Law to Facta.
1. The banana experiment expoeed the jury to
extraneous information.
The experiment conducted by the jurors involved
outside materials and exposed the jury to “specific facts
not mentioned at trial concerning ... the matter in
litigation.” Fidler, 377 Mass. at 200. Specifically, the
experiment showed that the pattern of lines produced when
the glove was moved across the aurface of a banana
closely resembled the streak on Greineder‘ s jacket. There
was nothing accidental about this experiment. The jury
resorted to it only after its request for a millimeter
18 This Court has also held that where the jury takes an
active role in investigating a ease or learning facts outside those
in evidence, prejudice is established as a matter of law. See, m,
Fitzeatrick v. Allen, 410 Maaa. 791, 796 (1991); Markee v. Biaaetci,
410 M ~ES. 785, 789 (1991).
39

uler was denied. In conducting the experiment, the jury
filled in a critical gap in the Comrnonwealth'a case. As
the motion judge states, the jury effectively created its
own "transfer exemplars." 8. 719. The jury clearly went
beyond the evidence adduced in the courtroom in resolving
a critical disputed factual issue.
2. The Commonwealth did not prove the
absence of prejudice.
The Commonwealth did not meet ita busden of proving
beyond a reasonable doubt that a hypothetical average
jury would be unaffected by exposure to this extraneous
information. Defense counsel and the defense expert had
stressed the absence of quantitative proof or overlays
linking the work gloves to Greineder's jacket. Denied
access to a ruler with which to make its own quantitative
assessment, the jury resorted to fabricating the
equivalent of an overlay using a banana and compared its
creation to the streak on the jacket. Armed with the
results of its comparison, an average jury would be more
likely to accept the Commonwealth's contention that the
murderer's gloves had created the streak on Greineder's
jacket, pointing to him as the perpetrator. The precise
gap which the defense emphaaized in the Commonwealth's
proof at trial was neatly filled in by the jury itself!
The conclusion that an average jury would likely
have been affected by this experiment is reinforced by
40

consideration of the factors outlined in Fidler and its
progeny. There was no immediate reprimand from another
juror after the extraneous material was presented. On the
contrary, many, if not all, of the jurors, looked at the
mark on the banana, noted its similarity to the pattern
on the gloves, and talked about it.
Moreover, there was far from overwhelming evidence
of guilt. There were no eyewitnesses to the crime nor
inculpatory admissions. The jury deliberated for five
days before reaching a verdict. There i s simply no way of
knowing what led each of the 12 jurors to vote to
convict. The Commonwealth cannot meet its burden of
proving beyond a reasonable doubt that a hypothetical
average jury would not have been affected by the
introduction of directly inculpatory, extraneous
information which filled an important gap in the
Commonwealth's case and which Greineder had no
opportunity to rebut ox challenge. The ruling of the
motion judge to the contrary should be rejected.19
The motion judge went beyond the hypothetical jury
test and sought: to make findings regarding the actual
impact of the banana experiment on the jury. Both that
'' The motion judge was correct in observing that "although
tying the gloves to Greineder was a significant part of the
government's case, it was not so critical that the jury could not
have convicted the defendant without i.t." &. 784. That, however, is
not the applicable legal test!
41

endeavor and the conclusions he reached were flawed. The
tainting of even a single juror is sufficient to
invalidate a verdict. Parker v, Gladden, 385 U.S. 363,
366 (1966) (E curiam) ; Commonwealth v. Hunt, 392 Mass.
28, 40 (1984). Here, there was no evidence about the
impact of the banana experiment on eight of the 12
deliberating jurors.2o Absent blind speculation, the
court could not properly conclude that any or all of
those eight jurors was actually unaffected.
Among the jurors who did testify, there is ample
evidence that it had an effect. Juror Salvi stated that
the jurors “marveled” at the similarity between the
bruise on the banana and the streak on the jacket. D.
(2/24/06)/33. Juror vitzthum confirmed that all of the
jurors saw the bruise on the banana and compared it to
the jacket, that the bruise on the banana looked like the
streak on the jacket, and that they discussed the bruise.
E. (3/3/06)/10-16. Juror Barbera testified to the same
effect, adding that there was discussion of the
comparison among the jurors. a. at 21-22. During his
recorded interview, conducted far closer to the time of
trial than the evidentiary hearing, Juror Gieaiecke
stated that the banana experiment was “one of those
’’ Those eight jurors included the six jurors who did not
testify and jurors Smith and Miller, who did not recall the banana
experiment and gave no testimony regarding its e€Eect.
42

moments" of insight, which "helped" the jury resolve the
caae. A. 750. Accordingly, the motion judge's
determination that "the banana experiment did not
in€luence the jury' a deliberations or impact their
verdict," &. 786. must be rejected. Greineder is clearly
entitled to relief. 21
VII. GREINEDER'S TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE IN FAILING TO EXCLUDE OR CHALLENGE
SCIENTIFICALLY UNRELIABLE DNA RESULTS.
A. Statement Of Relevant Facts.
Following Greineder's conviction, the DNA evidence
and discovery was reviewed by Arthur J. Eisenberg, Ph.D.,
a forensic biologist. Dr. Eisenberg's detailed findings
and analysis are set forth in his affidavit and exhibits.
A_. 368. He concluded that Cellmark's reported results on
the knife and brown work gloves were "scientifically
unreliable," "biased, " and should have been deemed
"inconclusive." A. 315-317 et seq.
The DNA evidence was also reviewed post-trial by
Charles M. Brenner, Ph.D., a forensic mathematician. Dc.
Brenner's findings and analysia are set forth in his
affidavit. 8. 258. He concluded that Cellmark violated
elementary statistical principles and employed unfairly
21
Relief is also warranted in this case under Markee and
Fitmatrick since there was "active juror participation in an effort
to resolve key issues by resort to material not in evidence."
Accordingly, prejudice is irrebuttably presumed, and Gseineder is
entitled to a new trial as a matter of law.
43

iased and scientifically invalid methodology.
The specific facts underlying this claim, including
evidence presented at the post-trial evidentiary hearing
and in a number of post-trial affidavits, are set forth
at pp. 16-41 of the Memorandum of Law in Sumort of
Defendant’s Motion for New Trial (A. 144-168)and at pp.
2-8 of Defendant’s Post-Hearins Memorandum of Law
ResDectins Ineffective Assistance Provided bv Trial
Counsel in Failins to Challenqe Commonwealth‘s DNA and
Footprint Evidence (8. 852-858).
B. Sununary of Applicable Law.
1. Exclusion of unreliable scientific
evidence.
Under Commonwealth v. Laniqan and its progeny, the
trial judge serves as a “gatekeeper“ in making a
“preliminary assessment” of whether proffered scientific
evidence is sufficiently reliable to be admitted at
trial. The gatekeeper role encompasses, not only the
underlying scientific principles and methodology, but
also “whether the testing was properly performed. ”
Commonwealth v. Patterson, 445 Mass. 626, 647-648 (2005).
Novel applications of an otherwise reliable technique
“must be independently tested against the Laniaan-Daubert
standard.” a. at 655. Scientifically unreliable evidence
must be excluded “because evidence of this character has
too great a potential. for affecting a jury‘s judgment.“
44

Commonwealth v. Curnin, 409 Mass. 218, 222 n.7 (1991).
The admission of unreliable evidence may violate a
defendant's constitutional right to due proceas under the
Fifth and Fourteenth Amendments and Article XII. a,
e.q., Manson v. Brathwaite, 432 U.S. 38, 112 (1977);
Commonwealth v. Johnson, 420 Mass. 458, 461-463 (1995).
2. Ineffective aaaiBtance of
Every criminal defendant is guasanteed effective
assistance of counsel by the Sixth and Fourteenth
Amendments and Article XII. Stricklandv. Washinston, 466
U.S. 668 (1984) ; Commonwealth v. Martinez, 425 Mass. 382,
387 (1997) I Both the federal and state courts have
delineated a two-pronged test for determining whether a
constitutional violation of this right: has occurred. The
first prong is virtually identical - whether counsel's
performance was seriously deficient, measured against an
objective standard of reasonableness. Wiaqins v. Smith,
539 U.S. 510, 521 (2003); -, 366
Mass. 89, 96-99 (1974).
The prejudice prong has been enunciated slightly
differently by the federal and Massachusetts state
courts. Under federal law, the defendant must show that
there is a reasonable probability that but for counsel's
22
This summary of relevant law applies to all of
Greineder's ineffective assistance claims.
45

errors, the outcome would have been different.
Strickland, 466 U.S. at 694. Under Article XII:
Our test is whether defense counsel's amission
"likely deprived the defendant of an otherwise
available, subatantial ground of defense"
[citinq Saferianl or whether "better work
might have accomplished something material €or
the defense," [citinq Commonwealth v.
Satterfield, 373 Mass. 1 09, 115 (1977)l.
Commonwealth v, Curtis, 417 Mass. 19, 625 n.4 (1994).
In adjudicating an ineffective assistance claim, a
reviewing court will give broad deference to strategic
decisions made by trial counsel. Such a decision amounts
to constitutional error only if it was manifestly
unreasonable when made. Commonwealth v. Acevedo, 446
Mass. 435, 442 (2006).
The failure of trial counsel to file a pretrial.
motion may constitute ineffective assistance. See, e.q.,
Kimmelman v. Morrison, 477 U.S. 365, 385-386 (1986)
(motion to suppress); Commonwealth v. Beliard, 443 Mass.
79, 90-91 (2004) (motion to exclude scientific evidence).
Defense counsel has a duty to seek to exclude
inadmissible evidence which is harmful to the defendant'a
case. E.q. Commonwealth v. Peters, 429 Mass. 22, 31-33
(1999). In order to make out a claim of ineffective
assistance based on counsel's failure to file a motion,
the defendant has to show that the motion properly would
have been allowed. Beliard, 443 Mass. at 91.
46

In evaluating a claim of ineffective assistance in
a capital case, this Court considers whether defense
counsel erred and, if so, whether it likely influenced
the jury's conclusion. Commonwealth v. Gomez, 450 Mass.
704, 712 (2008). Where such a claim is considered along
with the defendant's direct appeal, the Court reviews the
claim under the substantial likelihood of a miscarriage
of justice standard enonciated in M.G.L.c. 278, 533E. a
standard more favorable to the defendant than the
constitutional one. Gomez, 450 Mass. at 711.
C. Application of Law to Facts,
1. Defense counsel blundered in failing to
move to exclude the Commonwealth's
scientifically Unreliable DNA results.
Cellmark's DNA test results, purporting to link
Gseineder to the knife and brown work gloves used by Ms.
Greineder's killer, provided powerful support for his
conviction. Faced with auch obviously damaging evidence,
it was incumbent upon defense counsel to see to exclude
it at trial, if possible. Counsel had several compelling
arguments available to keep Cellmark's test results out.
His experts had told him that Cellmark's work in this
case waa grossly deficient in numerous respects and
stretched the technology beyond the point of scientific
reliability. He knew that Cellmark had failed to validate
allelic calls below 100 RFUs, that necessary controls
47

were missing, that Cellmark had fiddled with the results,
and that its statistical analysis was improper. He knew
of no published court decision endorsing the kind of LCN
work Cellmask had performed.
The exhaustive analysis carried out by Drs.
Eisenberg and Brenner conclusively established the
scientific invalidity of Cellmark' 8 work and the
unreliability of its test results. Dr. Eisenberg showed
that Cellmark's interpretation of LCN DNA mixtures at an
RFU peak detection threshold below 100 was unreliable,
unscientific, improperly validated, and unfairly biased
against Greineder. Indeed, Cellmark's approach was "the
antithesis of proper scientific practice." 6. 434.
The unreliability of Cellmark's test results also
permeated the statistical analysis presented to the jury.
As Dr . Brenner explained in his uncontroverted affidavit,
Cellmark' 6 statistical analysis "violated basic
scientific principles" and was "ecientifically invalid. "
A. 266, 270. There was "no objective way to quantify
accurately the random match probability on the right-hand
work glove and other pieces of evidence tested by
Cellmark. " a.
None of the justifications offered by Mr. Murphy for
failing to file a Lanisan motion to exclude Cellmark's
48

DNA test results withstands scrutiny.’’ First, Murphy
testified that he believed that a motion to exclude
Cellmark’s results as scientifically unreliable was
”unlikely to be successful .” E. (8/14/06) /131.. Yet baaed
upon his o m knowledge of Cellmark’s seriously-flawed
work in this case, that prediction was utterly baseless.
Murphy’s experts were sharply critical of Cellmark’s work
and advised him that Cellmark had engaged in improper
analysis and bad science. Murphy knew that Cellmark had
not validated its use of an RFU threshold of 40, which
was unprecedented and unjustifiable.
Under these circumstances, Murphy had ample reason
to believe that a motion to exclude cellmark’s test
results was meritorious and would be allowed by a fair
judge. At the very least, all allelic calls by Cellmark
based upon peaks below 100 RFUS were ripe for exclusion.
Clearly, the filing of a Laniaan motion would not have
been an exercise in futility, and Murphy’s belief to the
contrary was manifestly unreasonable.
Second, Murphy testified that even if he had
eucceeded in excluding all allelic calls under 100 RFUs,
the jury still would have heard DNA results that
“conclusively linked“ the right-hand work glove to
23 Mr. Murphy’s credibility is not in dispute. This Court
is in as good a position as the motion judge to assess the
reasonableness of his decisions.
49

Greineder based solely on peaks above 100 RFUs. 'Tr.
(9/13/06) /79-80. According to Dr. Eisenberg, Murphy is
wrong. Virtually all. of the peaks relied upon by Cellmark
to associate Dirk Greineder with the DNA recovered from
the key three pieces of evidence were less than 100 RFUs.
E. 685-686. With respect to the right-hand work glove
specifically mentioned by Murphy, Dr. Eisenberg reviewed
Cellmark's results locus-by-locus, concluding that "the
only scientifically justifiable conclusion that can be
reported is that Mabel Greineder must not be excluded as
a potential contributor.. .'I and that the results over 100
RFUs do not implicate Dirk Greineder at all.. _A. 686-689.
Murphy's third excuse was that such a motion would
give the Commonwealth and its witnesses a helpful preview
of the defense Murphy was planning to spring at trial.
Yet, he failed to challenge the scientific reliability of
Cellmark's testing before the jury. In cross-examining
Dr. Cotton, Murphy did not ask her about Cellmark's lack
.of validation studies for calling allelic peaks and DNA
mixtures at less than 100 RFUs, its lack of specific
criteria for lowering the RFU threshold from 100 to 40,
its lack of substrate controls, or its flawed statistical
analysis. Accordingly, filing a Lanisan motion
challenging the admissibility of Cellmark's DNA test
results would not have revealed Murphy' 6 trial strategy.
50

In any event, if filing such a motion would have led to
the exclusion of Cellmark's test results, any clues about
how defense counsel was planning to combat those results
at trial would be rendered academic.
Fourth, Murphytestified that a successful motion to
exclude Cellmark's allelic calls under 100 RFUs would
have undermined his strategy of suggesting that a third
person was present at the scene of Ms. Greineder's death.
Indeed, Murphy opined, the exclusion of such allelic
calls would have "largely eliminated the stranger DNA
argument. . , ." E. (9/13/06) /79. There are several
critical flaws in Murphy's analysis. As Dr. Eisenberg
pointed out, the defense failed at trial to identify a
significant number of "stranger alleles" on any of the
three key items of evidence. Only one such allele under
100 RFUs was identified on each item. A. 690. Moreover,
as Murphy conceded, z. (9/13/06)/87, the defense could
have presented its "stranger allele" argument based
entirely upon peaka found on Ms. Greineder' s blue gloves,
all in excess of 100 RFUs.
On any rational. assessment of the case, Murphy's
planned "stranger allele" defense, relying upon a
smattering of alleles to suggest that a third person may
have been present at the scene, paled in comparison to
highly-incriminating evidence linking Greineder's DNA to
51

the knife and brown work gloves. Murphy acknowledged that
there were "far fewer alleles attributed by the defense
to a stranger than there were alleles attributed by the
prosecution to Dx. Greineder" on those key items of
evidence. a. at 88. Even if the jury believed that a
third person may have been present, that would not have
exculpated Greineder. Yet if the defense had successfully
moved to exclude Cellmark's low-RFU, inculpatory results
on the knife and brown work gloves, there would have been
no provable connection between Greineder and those pieces
of evidence, gravely weakening the Commonwealth's case.
In sum, anything the defense would lose by forfeiting its
ability to rely on a handful of low-RPU allelic calls was
vastly outweighed by what it would have gained by
eliminating all such calls at trial.
Finally, Murphy testified that he didn't retain an
expert in DNA statistics or challenge the admissibility
of Cellmark's test results on that basis because he
believed that any statistical calculation would have
inculpated Greineder. D. (8/14/06)/158. Yet by not
bothering to retain an expert, Murphy never learned that
Cellmark's statistical analysis wa8 "scientifically
invalid." &. 270. If Dr. Brenner is correct (and the
Commonwealth has not presented any contravening
evidence) , Cellmark's test results would have been
52

subject to exclusion on that ground as well, and Murphy's
decision to forego filing a Lanisan motion was manifestly
unreasonable.
In denying Greineder's motion for a new trial, Judge
Chernoff stated: " [TI his Court, in its discretion, would
most likely have rejected a Lanisan challenge to
Cellmark'a test results in this case, despite the serioua
issues raised by Dr. Eisenberg." 8. 965." Based on the
record before him, Judge Chernoff's conclusion was
clearly erroneous as a matter of law. If Dr. Eisenberg i s
correct in his analysis, Cellmark's work in this case was
scientifically invalid and unreliable.25 Under Lanisan
and its progeny, a motion to exclude such junk science
would properly have been allowed.2c
Judge Chernoff's conclusion that Murphy's decision
24
Judge Chernoff does not appear to question Dr.
Eisenberg's credibility or doubt his conclusions. Since Judge
Chernoff denied Greineder'a motion to call ar. Eisenbery as a
witness at the evidentiary hearing, this Court is in as good a
position as Judge Chernoff to consider the substance of Dr.
Eiaenberg's affidavies, as well as the aEfidavit of Dr, Brenner and
those proffered by the Commonwealth.
25 This Court's decision in Commonwealth v. Gaynor, 443
Mass. 245, 263-270 (2005) is not to the contrary. In Gavnor, "only
teat results based on a single source of DNA" or results yielding
"strong evidence of a primary contributor" were used. a. at 251.
Hsre, by contrast, cellmark interpreted LCN mixtures containing
extremely weak signals from a putative secondary contributor,
stretching DNA technology well beyond validated. reliable limits.
26 This Court's decision in Patterson, 445 Mass. at 655.
refusing to extend fingerprint analysis methodology to authorize the
admission of fingerprint analysis based on a composite of three
partial fingerprints, is directly on point. Here, as there, the
Commonwealth's experts extended acceptable techniques beyond the
point of demonstrated reliability.
53

to eschew a motion challenging the admissibility of
Cellmark's test results was tactically defensible is
beyond the pale. Thia evidence was devastating to the
defense, and none of Murphy's proffered justifications
passes muster. Any reasonable lawyer faced with the
choice of trying to exclude this highly inculpatory
evidence or making the best of it would choose the former
over the latter. Any other choice, viewed in foresight or
in hindsight, would be manifestly unreasonable.
2. Defense counsel blundered in failing to
challenge the DNA evidence at trial.
Having not even tried to exclude Cellmark's
inculpatory DNA test results, Murphy compounded that
error by failing to challenge that evidence before the
jury. The forensic scientist who was supposed to
spearhead the DNA defense, Dr. Davis, was jettisoned by
trial counsel and never replaced. Instead, Murphy relied
upon Professor Krane, who was not a forensic scientist
and had been retained only just before trial. Krane had
never done forensic testing, utilized the relevant
software or hardware, or reviewed Cellmark's validation
studies. He was thus in no position to critique
Cellmark's work and didn't even try to do so. To make
matters worse, the defense failed to challenge Cellmark's
statistical analysis. As a result, Cellmark's
scientifically unreliable, yet highly inculpatory, test
54

esults were effectively unchallenged at trial.
Trial counsel's alternative plan to address those
results was utterly lame, hence manifestly unreasonable.
Since Dr. Davis wasn't called as a witneas, the
electropherograms she had prepared to illustrate the
"stranger allele defense" were excluded, and the defense
fell Plat. Taylor's DNA experiments illustrating
secondary DNA transfer were also excluded, so that
defense theory was significantly weakened as well.
Counsel's decision to pin his client's fate on
inadmissible exhibits and experiments, while foregoing a
powerful attack upon the Commonwealth's most
incriminating evidence, cannot be defended under any
standard of review.
Judge Chernoff's justifications for Murphy's failure
to retain a substitute for Dr. Davis and a statistical
expert to testify at trial are not supported by the
record and should be rejected. The motion judge says it
was reasonable for Murphy to eschew a continuance based
upon his fear that Greineder's daughter, Kirsten, would
refuse to attend a trial held after her August wedding.
A. 968. Yet Murphy never asked Kirsten if she would
attend trial if a continuance were necessary, so his
fears were entirely speculative, hence unreasonable.
Judge Chernoff concluded that Murphy's decision not
55

to retain a statistical expert was not manifestly
unreasonable "given that the DNA results were only one of
numeroua pieces of incriminating evidence in the case
against the defendant." 8. 968. That i s hardly a valid
excuse €or failing to challenge the most incriminating
evidence in the case. Murphy's negligence was a clear
abdication of his responsibilities to his client.
3. Greineder wa8 prejudiced by defense
counsel's blundera.
The admission of Cellmark's DNA test results at
trial contributed significantly to Greineder's
conviction. The Commonwealth's circumstantial case
depended largely upon forensic evidence, particularly
DNA. Creineder is entitled to relief i f a pretrial motion
to exclude at least a substantial portion of those
results would have been meritorious. Be is also entitled
to relief if Murphy's failure to challenge the DNA test
results at trial deprived him of a substantial defense.
Assessing the appropriate outcome of a Lanisan
motion at this juncture requires the Court to consider
and weigh the affidavits filed by Dr. Eisenberg and Dr.
Bcenner on one hand and those filed by Dz. Cotton and Ms.
Sgueglia on the other. Since the motion judge refused to
hear live expert testimony, this Court is in as good a
position as the motion judge to make that assessment. Dr.
Eisenberg's devastating critique of Cellmark's work
56

emains unrebutted, and Dr. Brenner's critique of
Cellmark's statistical analysis hasn't been addressed at
all. Accordingly, this Court should conclude that a
Lanisan motion to exclude all of Cellmark's inculpatory
DNA test results (or at least those relying on allelic
calls based on peaks under 100 RFUs) would properly have
been allowed, as would a motion to exclude Cellmark's
statistical analysis of those results.
This Court should also conclude that Greineder was
prejudiced by Murphy' a failure to challenge Cellmark's
test results before the jury. Cellmark's testing was
highly vulnerable to attack, but auch an attack never
took place. Clearly, the defendant wa6 "likely deprived
... of an otherwise available, substantial ground of
defense." Commonwealth v. Saferian, 366 Mass. at 96,
Surely, "better work might have accomplished something
material for the defense." Commonwealth v. Satterfield,
373 Mass. at 115. Greineder's constitutional right to
effective assistance of counsel was violated, and he is
entitled to relief.
VIII. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO
FILE A MERITORIOUS MOTION TO SUPPRESS THE
NAILS RECEIPT.
A. Statement of Relevant Facta.
The facts relevant to this claim are set forth at
pp. 77-80 of the Memorandum of Law in Support of
57

Defendant's Motion for New Trial, _A. 204-207, and at pp.
6-10 of Defendant's Post-Hearinq Memorandum of Law
Resaectins Ineffective Assistance of Counsel Claims
Unrelated to Exnert Testimony, 8. 796-800.
B. Summary of Applicable Law.
Under the Fourth Amendment and Article XIV, search
warrants must describe the articles to be seized with
particularity. Commonwealth v. Cefalo, 381 Mass. 319
(1980); United States v. Ferreras, 192 F.3d 5, 10 (1st
Cir. 1999) + "The uniformly applied rule i s that a search
conducted pursuant to a warrant that fails to conform to
the particularity requirement of the Fourth Amendment is
unconstitutional." Massachusetts v. Sheuuard, 468 U.S.
981, 988 n. 5 (1984). If a warrant lacks specificity, all
the fruits of the search must be suppressed. Commonwealth
v, Rutkowski, 406 Mass. 673, 674-675 (1990) ,"
C. Application of Law to Facts.
1. The seizure of the nails receipt was
unconstitutional.
The search warrant was an impermissible general
warrant. Through this device, the Commonwealth took a
host of materials from Greineder's home, hoping that
further investigation might render them useful. This is
27
A warrant that lacks a specific description of the items
eo be seized may still pass muater if accompanied by an affidavit
containing a specific description of those items. See Commonwealth
v. Sheward, 394 Mass. 381, 390 (1985).
58

precisely what the Constitution prohibits. While a
general warrant may be cured by an affidavit that
provides sufficient specificity, that principle does not
apply to the seizure of the nails receipt because the
nails receipt was not mentioned in the affidavit.
Accordingly, the nails receipt was subject to suppression
as the fruit of an unlawPul general warrant.28
2. The motion judge's ruling waa erroneou8.
In denying Greineder's motion for new trial, the
motion judge clearly erred in opining that even if the
nails receipt were suppressed, the Commonwealth would
have been able to present testimony by the seizing
officers as to its contents. The essence of the
exclusionary rule is that neither the object of an
illegal seizure, nor the fruits thereof, may be
introduced at trial against a defendant. Manw v.
-, 367 U.S. 643, 654-656 (1961); Commonwealth v.
Blood, 400 Mass. 61, 77 (1987); 6 W.R. LaFave, Search and
Seizure, 511.4, at 255 n.1 (4th ed. 2004) (evidence to be
18
It is not entirely clear whether the trial court ruled
that the nails receipt waB admiasible OK failed to rule on the
question. FOT present purposea. it does not matter. Either the trial
court did not rule on the issue, in which case defense counsel was
constitutionally ineffective in failing to present a suppression
argument prior to admission of the nails receipt. or it did rule on
the issue, in which case that ruling was reversible error. Either
way, Greineder is entitled to relief from a conviction based in part
upon an unconstitutionally-seized piece of evidence. As the
prosecutor argued in his closing, this was "important" evidence that
provided a specific, easy-to-understand link between the defendant
and the murder weapon. E. 25/89-90.
59

suppressed includes "not only the physical evidence
discovered but also . . , testimony about its discovery").
The motion judge's position effectively eviscerates the
exclusionary rule.
3. Counsel's failure to move to suppress was
prejudicial.
There is a reasonable likelihood that the verdict
would have been different if the nails receipt had been
suppressed. The receipt played an important part in the
Commonwealth's circumstantial case, seeking to tie
Greineder to a hammer which may have been used in the
murder. While there was certainly other evidence
presented at trial, none of it was overwhelming, and
there is no way to determine what tipped the balance
towards a guilty verdict
IX. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO FILE
A MERITORIOUS MOTION TO SUPPRESS THE FRUITS OF A
GEARCH OF GREINEDER'S TOYOTA AVALON.
A. Statement of Relevant Facts.
The facts relevant to this claim are set forth
at pp. 85-88 of the Memorandum of Law in Support of
Defendant's Motion for New Trial, A. 212-215, and pp. 16-
21 of Defendant'a Post-Hearinq Memorandum of Law
Resaectins Ineffective Assistance pf Counsel Claims
Unrelated to Expert Testimony. A. 806-811.
B. Summary of Applicable Law.
1. Scope of a residential search warrant.
60

A search warrant for a residence covers vehicles
found within the curtilage of the residence but not those
outside. Commonwealth v. Mcdarthv, 428 Mass. 871, 873
(1999). In -, 392 Mass. 45, 48
(19841, this Court held that a private driveway adjacent
to a home was not within the curtilage. Therefore, a
vehicle parked in the driveway was outside the curtilage.
2, Limited exception to warrant requirement
for automobile searches.
Under both the Fourth Amendment and Article XIV,
police may not search an automobile without a warrant
unless they can make a showing of probable cause and
exigent circumstances. The Commonwealth must show that
there is probable cause that the automobile contains
contraband or evidence of a crime. &g Carroll v. United
States, 267 U.S. 132 (1925); Commonwealth v. Ortiz, 376
Mass. 349, 354 (1978). The exigent circumstances
requirement is met only when it is "impracticable" for a
warrant to be obtained. Commonwealth v. Alvarado, 420
Mass. 542, 554 (1995).
C. Application of Law to Facts.
1. The search of the Toyota Avalon was
unlawful.
Greineder's car was parked in his driveway, which
was not within the curtilage of the house. As in Simmons,
the driveway was openly visible from the public road and
61

was the normal means of access to the house. There was no
gate separating the driveway from the public road; there
were no trees, fence or shrubbery shielding the driveway
from the public road; and there were no "No Trespassing"
signs posted. See Simmons, 392 Mass. at 47. Accordingly,
the search warrant for the house did not authorize a
search of the car.29 As the motion judge correctly
concluded, 8. 951, a motion to suppress the evidence
obtained as a result of the search of the Avalon would
have been meritorious.
2. counsel was deficient in failing to f ile
a motion to euppreas.
Once Detective McDermott testified that the towel
she saw in the Avalon was not the Ritz-Carlton towel,
defense counsel should have moved to suppress the fruits
of the search of the Avalon and to strike her testimony.
Counsel claims he had hoped Mcnermott's testimony would
be helpful in corroborating Greineder's story. But once.
it was clear that McDermott's testimony about the search
was harmful to the defense, counsel's failure to move to
suppress and strike was grossly negligent. Under the
29 While automobile searches axe often performed without a
warrant under the "automobile exception," the prosecution muat
establish that the officers had probable cause to believe that there
was contraband or evidence in the car and chat there were exigent
circumstances that made obtaining a warrant impracticable. Here,
neither requirement was met. There was no reason to believe that
there was anything relevant to the alleged murder in the car, as the
car had not been at the Bcene and had no known connection to the
crime. Moreover, there were no exigent circumstances justifying a
warrantless aearch.
62

circumatances, the court could properly have entertained
a motion to auppreas during trial.30 There was no
strategic reason not to file such a motion. By his own
admission, counsel simply failed to consider doing so. As
in Wiqqins v. Smith, 539 U.S. 510, 534 (2003), this
failure !'was the result of inattention, not reasoned
strategic judgment. 'I
3. The motion judge's reasoning was flawed.
The motion judge's decision rejecting this claim
rested on a faulty premise - that defense counsel's
failure to move to suppress the evidence was a
"deliberate'l decision. 8. 951. However, counsel testified
that he did not consider moving to suppress and strike
the testimony in the middle of trial. D. (5/30/06)/28.
Therefore, the court's conclusion that this was a
strategic decision was simply erroneous. In any event,
any such decision would have been manifestly unreasonable
once the damaging nature of Detective McDermott's
testimony became clear.
4. Counsel's failure to move to suppress was
prejudicial.
There is a reasonable likelihood that the verdict
'" While motions to suppress are generally required to be
filed prior to trial. there is an exception for a motion to suppress
evidence chat counsel could not anticipate would be introduced at
trial. See, m, Commonwealth v. Carter, 39 Masa. App. Ct. 439,
440-441 (1995); Commonwealth v. watkins, 33 MaSS. App. Ct. 7, 13 n.6
(1992); Blumenson, Fisher, & Kanstroom, 2 Maasachusetts Criminal
Practice 515.2D (1998 & 2001 Supp.). In this instance. defense
counsel was surprised by MCDeKmOtt'S trial testimony.
67

would have been different had the evidence regarding the
towel been suppressed. The Commonwealth's case was based
entirely on circumstantial evidence, and Greineder's
testimony about the towel was the linchpin of the DNA
transfer theory presented by the defense at trial.
Testimony by Detective McDermott that the towel produced
by Greineder was not the one observed in Greineder's
vehicle during the search devastated Greineder's
credibility by making him appear dishonest. Further, it
completely undermined the defense's DNA transfer theory,
making it look more like a concoction supported by
fabricated evidence than a reasonable explanation of the
otherwise-damning DNA test results. Greineder suffered
substantial prejudice and i s entitled to relief.
X. THE CUMULATIVE ERRORS JUSTIFY REVERSAL OF
GREINEDER'S CONVICTION.
A. Summary of Applicable Law.
Under M.G.L.c. 278, 533E, this Court must consider
"whether there was an error in the course of the trial
(by defense counsel, the prosecutor, or the judge) 'I that
creates a "substantial likelihood of a miscarriage of
justice." Commonwealth v. Wrisht, 411 Maso. 678, 681
(1992). In examining the record, the Court may take into
account the combined prejudicial effects of individual
errors. a, u, Commonwealth v. Baker, 440 Mass. at
519. Similarly, a violation of the federal right to due
64

process can arise from a combination of circumstances
which individually might not warrant relief. United
States v. SamDson, 335 F.Supp.2d 166, 183 (D.Mass. 2004).
E. Application of Law to Facts.
This first degree murder trial was beset by serious
errors from start to finish. Due to the combined effect
of myriad mistakes by the trial court, defense counsel,
the prosecutor, the Commonwealth's witnesses, and even
the jury, Dirk Greineder was deprived of constitutional
due process, and his resulting murder conviction cannot
be deemed €air or just. Relief is warranted.
CONCLUSION
The defendant's conviction should be reversed or
vacated, and the case remanded for a new trial.
Respectfully submitted,
DIRK GREINEDER
By his attorneys,
James L. Sultan, BBO #488400
Jonathan P. Harwell, BBO #662764
Kankin & Sultan
151 Merrimac Street, Znd Floor
Boston, MA 02114
(617) 720-0011
65