SUPREME JUDICIAL COURT DIRK GKEINEDER - Mass Cases
SUPREME JUDICIAL COURT DIRK GKEINEDER - Mass Cases
SUPREME JUDICIAL COURT DIRK GKEINEDER - Mass Cases
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NORFOLK. ss.<br />
COMMONWEALTH OF MASSACHUSETTS<br />
<strong>SUPREME</strong> <strong>JUDICIAL</strong> <strong>COURT</strong><br />
COMMONWEALTH OF MASSACHUSETTS<br />
V.<br />
<strong>DIRK</strong> <strong>GKEINEDER</strong><br />
NO. SJC-08866<br />
CONSOLIDATED UMEF OF DEFENDANT/APPELLANT DlKK GRFANEDEK<br />
ON DIRECT APPEAL AND APPEAL FROM DENIAI, OF<br />
AMENDED MOTION FOR NEW TRIAL<br />
April 2009<br />
James L. Sultan, BBO #488400<br />
Jonathan P. Hanvell, BBO #662764<br />
Rankin & Sultan<br />
151 Merrimac Strcet<br />
Second Floor<br />
Boston, MA 02114<br />
(61 7) 720-0011
TABLE OF CONTENTS<br />
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . vii<br />
STATEMENT OF THE CASE . . . . . . . . . . . . . . 1<br />
STATEMENT OF RELEVANT FACTS . . . . . . . . . . . 1<br />
SUMMY OF THE ARGUMENT . . . . . . . . . . . . . 1<br />
ARGUMENT . . . . . . . . . . . . . . . . . . . . . 2<br />
I. GREINEDER WAS DENIED HIS RIGHT TO A PUBLIC<br />
TRIAL. . . . . . . . . . . . . . . . . . . . . 2<br />
A. Statement of Relevant Facts. . . . . . . 2<br />
B. Summary of Applicable Law. . . . . . . . 3<br />
C. Application of Law to Facts. . . . . . . 4<br />
1. The first portion of the trial was<br />
improperly closed to the public. . 4<br />
2. Greineder is entitled to relief. 5<br />
II. THE TRIAL <strong>COURT</strong>'S ADMISSION, OVER OBJECTION,<br />
OF INCULPATORY DNA TEST RESULTS VIOLATED<br />
GREINEDER'S CONSTITUTIONAL RIGHT TO<br />
CONFRONTATION AND THE PROSCRIPTION AGAINST<br />
HEARSAY. . . . . . . . . . . . . . . . . . . 6<br />
A. Statement of Relevant Facts. . . . . . . 6<br />
B. Summary of Applicable Law. . . . . . . . 9<br />
C. Application of Law to Facts. ...... 11<br />
111. GREINEDER'S CONSTITUTIONAL RIGHTS WERE<br />
VIOLATED BY THE PROSECUTOR'S CROSS-EXAMINATION<br />
AND CLOSING ARGUMENT. ............ 12<br />
A. Statement of Relevant Facts. . . . . . . 12<br />
1. Timeline. . . . . . . . . . . . . . 12<br />
2. The Commonwealth' s evidence<br />
regarding Greineder's statements<br />
about trying to assist his wife. . 13<br />
i
3. Greineder's direct testimony. . . .<br />
4. Cross-examination of Greineder about<br />
efforts ta pick up Ms. Greineder. .<br />
5. Cross-examination of Greineder about<br />
heel mark. . . . . . . . . . . . .<br />
6. Prosecutor's closing argument. . .<br />
B. Summary of Applicable Law. . . . .<br />
1. Ban on exploiting post-arrest<br />
silence. . . . . . . . . . . . . .<br />
2. Ban on comment on pre-arrest<br />
silence. . . . . . . . . . . . . .<br />
3. Ban on suggesting that a defendant<br />
has tailored testimony to fit trial<br />
evidence. . . . . . . . . . . . . .<br />
C. Application of Law to Facts. . . . . . .<br />
IV. THE TRIAL <strong>COURT</strong> ERRED IN ADMTTTING IRRELEVANT<br />
AND HIGHLY PREJUDICTAL EVIDENCE ABOUT<br />
GREINEDER'S EXTRAMARJTATA SEXUAL ACTIVITIES. .<br />
A. Statement of I?elevant Facts. . . . . . .<br />
B. Summary of Applicable Law. . . . . . . .<br />
1. Admissibility of prior bad acts.<br />
2. Extramarital sexual activity is<br />
relevant to motive to commit murder<br />
only when combined with overt<br />
evidence of hostility. . . . . . .<br />
3. The Commonwealth may not misuse<br />
evidence admitted fox a limited<br />
purpose or refer to 'facts" which<br />
were not admitted at trial in its<br />
closing argument. . . . . . . . . .<br />
4. Standard of review. . . . . . . . .<br />
C. Application of Law to Facts. . . . . . .<br />
..<br />
I1<br />
13<br />
13<br />
15<br />
16<br />
16<br />
16<br />
17<br />
17<br />
la<br />
19<br />
19<br />
20<br />
20<br />
21<br />
22<br />
22<br />
22
1. The sex evidence was inadmissible. .<br />
2. The Commonwealth misused the sex<br />
evidence during closing argument. .<br />
3. conclusion. . . . . + . . . . . . .<br />
V. THE MOTION JUDGE ERRED IN DENYING GREINEDER'S<br />
MOTION FOR NEW TRIAL BASED UPON THE<br />
KECANTATLON OF DEBORAH REBEIRO. . . . I . . .<br />
A. Statement of Relevant Facts. . . . . . .<br />
E. Summary of Applicable Law. . . . . + . .<br />
1. Recantation by prosecution witness<br />
as grounds for new trial. . . . .<br />
2. Recantations in other jurisdictions.<br />
. . . . . . . . . . . . . . . . .<br />
3. Constitutional right to disclosure<br />
of exculpatory information. . . . .<br />
4. Constitutional right to fair trial<br />
based on reliable evidence. . . . .<br />
5. Standard of review. . . . . . . . .<br />
C. Application of Law to Facts. . . . . . .<br />
1. Kebeiro's trial testimony was false,<br />
and her recantation was credible. .<br />
2. Rebeiro's erroneous trial testimony<br />
seriously prejudiced the defense.<br />
3. Greineder is entitled to relief.<br />
a. Greineder is entitled to relief<br />
under the Larrison standard. .<br />
b. Greineder i s entitled to relief<br />
under federal constitutional<br />
law. . . . . . . , . . . . . .<br />
c. Greineder is entitled to relief<br />
under Gallarelli. . . . . . . .<br />
iii<br />
22<br />
24<br />
25<br />
26<br />
26<br />
26<br />
26<br />
26<br />
27<br />
29<br />
30<br />
30<br />
31<br />
31<br />
32<br />
32<br />
33<br />
34
VI.<br />
VII.<br />
d. Greineder is entitled to relief<br />
under the newly-discovered<br />
evidence standard. . . . . .<br />
THE MOTION JUDGE ERRED IN DENYTNG GREINEDER'S<br />
MOTION FOR NEW TRIAL BASED UPON THE<br />
DELIBERATING JURY'S EXPOSURE TO EXTRANEOUS<br />
INFORMATION. . . . . . . . . . . . . . . . .<br />
A. Statement of Relevant Facts. . . . . . .<br />
B. Summary of Applicable Law. . . . . . . .<br />
1. Jury experiment as extraneous<br />
information. . . . . . . . . . . .<br />
2. Prejudice . . . . . . . . . . . . .<br />
C. Application of Law to Facts. . . . . . .<br />
1. The banana experiment exposed the<br />
jury to extraneous information. . .<br />
2. The Commonwealth did not prove the<br />
absence of prejudice. . . . . . . .<br />
GREINEDER'S TRIAL COUNSEL WAS CONSTITUTIONALLY<br />
INEFFECTIVE IN FAILING TO EXCLUDE OR CHALLENGE<br />
SCIENTIFICXLLY UNRELIABLE DNA RESULTS. . . .<br />
A. Statement of Relevant Facts. . . . . . .<br />
B. Summary of Applicable Law. . . . . . . .<br />
1. Exclusion of unreliable scientific<br />
evidence. . . . . . . . . . . . . .<br />
2. Ineffective assistance of counsel.<br />
. . . . . . . . . . . . . . . . .<br />
C. Application of Law to Facts. . . . . . .<br />
1. Defense counsel blundered in failing<br />
to move to exclude the<br />
Commonwealth's scientifically<br />
unreliable DNA results. . . . . . .<br />
2.<br />
Defense counsel blundered in failing<br />
to challenge the DNA evidence at<br />
trial. . . . . . . . . . . . . . .<br />
iv<br />
34<br />
35<br />
35<br />
36<br />
36<br />
38<br />
39<br />
39<br />
40<br />
43<br />
43<br />
44<br />
44<br />
45<br />
47<br />
47<br />
54
VIII.<br />
3. Greineder was prejudiced by defense<br />
counsel's blundera. . . . . . . . .<br />
DEFENSE COUNSEL WAS INEFFECTIVE IN<br />
FALLING TO FILE A MERITORIOUS MOTION<br />
TO SUPPRESS THE NAILS RECEIPT. . . . . .<br />
A. Statement of Relevant Facts. . . . . . .<br />
B. Summary of Applicable Law. . . . . . . .<br />
C. Application of Law to Facts. . . . . . .<br />
1. The seizure of the nails receipt was<br />
unconstitutional. . . . . . . . . .<br />
2. The motion judge's ruling was<br />
erroneous. . . . . . . . . . . . .<br />
3. Counsel's failure to move to<br />
suppress was prejudicial. . . . . .<br />
IX. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO<br />
FILE A MERITORIOUS MOTION TO SUPPRESS THE<br />
FRUITS OF A SEARCH OF GREINEDER'S TOYOTA<br />
AVALON . . . . . . . . . . . . . . . . . . . .<br />
A. Statement of Relevant Facts. . . . . . .<br />
B. Summary of Applicable Law. . . . . . . .<br />
1. Scope of a residential search<br />
warrant. . . . . . . . . . . . . .<br />
2. Limited exception to warrant<br />
requirement for automobile searches.<br />
. . . . . . . . . . . . . . . . . .<br />
C. Application of Law to Facta. . . . . . .<br />
1. The search of the Toyota Avalon was<br />
unlawful. . . . . . . . . . . . . .<br />
2. Counsel was deficient in failing to<br />
file a motion to suppress. . . . .<br />
3. The motion judge's reasoning was<br />
flawed. . . . . . . . . . . . . . .<br />
V<br />
56<br />
57<br />
57<br />
5a<br />
58<br />
58<br />
59<br />
60<br />
60<br />
60<br />
60<br />
60<br />
61<br />
61<br />
61<br />
62<br />
63
4 . Counsel's failure to move to<br />
suppress was prejudicial . . . . . . 63<br />
X . THE CUMULATIVE ERRORS JUSTIFY REVERSAL OF<br />
GREINEDER'S CONVICTION . . . . . . . . . . . . 64<br />
A . Summary of Applicable Law . . . . . . . . 64<br />
B . Application of Law to Facts . . . . . . . 65<br />
CONCLUSION . . . . . . . . . . . . . . . . . . . . 65<br />
vi
Bradv v. Marvland,<br />
373 U.S. 83 (1963) . . .<br />
California v. Green,<br />
399 U.S. 149 (1970) < .<br />
Carroll v. United States,<br />
267 U.S. 132 (1925) . .<br />
TABLE OF AUTHORITIES<br />
Federal <strong>Cases</strong><br />
27, 28, 33, 33n.<br />
. . . . . . . 29<br />
. . . . . . . 61<br />
Chavman v. California,<br />
386 U.S. 18 (1967) . . . . . . . . . . . . . . . . 38<br />
Coosan v. McCaushtrv,<br />
958 F.2d 793 (7‘” Cir. 1991)<br />
Crawford v. washinston,<br />
541 U.S. 36 (2004) . . . .<br />
. . . . . 29<br />
. . . . . 11<br />
Daubert v. Mesrell Dow Pharmaceuticals, Inc.,<br />
509 U.S. 579 (1993) . . . . . . . . . . . . 44<br />
DowLins v. United States,<br />
493 U.S. 342 (1990) . . .<br />
Doyle v, Ohio,<br />
426 U.S. 610 (1976) . . .<br />
Kimmelman v. orriso on,<br />
477 U.S. 365 (1986) . . .<br />
KylPs v. Whitlev,<br />
419 U.S. 419 (1995) . . .<br />
Larrison v. united States,<br />
24 P.2d 82 (7th Cir. 1928)<br />
. . . . 21<br />
. . . . 16<br />
. . . 46<br />
. . . 28<br />
27, 21n., 32, 33<br />
Mauu v. Ohio,<br />
367 W.S. 643 (1961) . . . . . . . . . . . . . . . 59<br />
Martin v. United States,<br />
17 F.2d 973 (5th Cir. 1327) . . .<br />
<strong>Mass</strong>achusetts v. Shermard,<br />
468 U .S. 981 (1984) . . . . . . .<br />
vii<br />
26, 21<br />
. . 58
Miller v. Harvey,<br />
566 F.2d 879 (4th Cir. 1977) . . . . . . . . . . 37n.<br />
Neder v. United States,<br />
527 U.S. 1 (1999) . . . . . . . . . . . . . . . . 6<br />
Owens v. United Stateu,<br />
483 F.38 48 (lat Cir. 2007), on remand,<br />
517 F.Supp. 2d 570 (D.<strong>Mass</strong>. 2007) . . . . 4, 5, 6, 6n.<br />
Parker v. Gladden,<br />
385 U.S. 363 (1966) (per curiam) . . . . . . . . . 42<br />
Press-Enterprise Co. v. Supprior Court of Cal.,<br />
464 U.S. 501 (1984) . . . . . . . . . . . . . . . . 3<br />
Strickland v. Washinston,<br />
466 W.S. 668 (1384) . . . . . . . . 45, 46<br />
United States v. Aqurs,<br />
427 U.S. 97 (1976) . . . . . . . . . . . . . . . . 28<br />
United States v. Antar,<br />
38 F.3d 1348 (3d Cir. 1994) . . . . . 5<br />
United States v. Baalev,<br />
473 U.S. 667 (1985) . . . . . . . . . . . . . . . 28<br />
United States v. Ferreras,<br />
192 F.3d 5 (Ist Cir. 1999) . . . . . . . . . . . . 58<br />
United Statea v. Lofton,<br />
233 F.3d 313 (4kt‘ Cir. 2000) . . . . .<br />
United States v. Mevers,<br />
484 F.2d 113 (3rd Cir. 1973) . ,<br />
2711.<br />
.... 27n.<br />
United States v. Nevell,<br />
28 F.3d 109 (gth Cir. 1994) . . . . . . . . . . 3711.<br />
United States v. Sampson,<br />
335 F.Supp.2d 166 (D.<strong>Mass</strong>. 2004) . . 65<br />
United States v. Welch,<br />
377 F.Supp. 367 (D.S.C. 1971)<br />
x3.c. 496 F.2d 861 (qL” Cir. 1973) . . . . 37n.<br />
a.<br />
United States v. Willis,<br />
257 F.3d 636 (6t” Cir. 2001) . . . . 27<br />
viii
United States v. YQunq,<br />
17 F.3d 1201 (gth Cir. 1994) . . . . . . . . . . . 29<br />
Waller v. Georsia,<br />
467 U.S. 39 (1984) . . . . . . . . . 3<br />
Walton v. Brilev,<br />
361 F.3d 431 (7th Cir. 2004) . . . . . . . . . . . . 5<br />
Wiqqins v. Smith,<br />
539 U.S. 510 (2003) . . . . . . . . . . . . . 45, 63<br />
State <strong>Cases</strong><br />
Bruns v. Jordan Marsh Co.,<br />
305 <strong>Mass</strong>. 437 (1940) . . . . . . . . . . . . . . . 37<br />
Carter v. State,<br />
753 S.W.2d 432 (Tex. App. 1988) . . . . . . . . 37n.<br />
casterline v. State,<br />
736 s.w.2d 207 (Tex. Ct. App. 1987) . . 2 In<br />
Commonwealth v. Acevedo,<br />
446 <strong>Mass</strong>. 435 (2006) . . . . . . . . . . . . . . . 46<br />
Commonwealth v. Alvarado,<br />
420 <strong>Mass</strong>. 542 (1995) . . . . . . . . . . . . . . . 61<br />
Commonwealth v. Baker<br />
440 <strong>Mass</strong>. 519 (2003) . . . . . . . . . . . . . . . 64<br />
Commonwealth v. Beauchama,<br />
424 <strong>Mass</strong>. 682 (1997) . . . . . . . . . . . 17, 18, 36<br />
Commonwealth v. Beliard,<br />
443 <strong>Mass</strong>. 79 (2004) . . . . . . . . . . . . . . . 46<br />
Commonwealth v. Blood,<br />
400 <strong>Mass</strong>. 61 (1987) . . . . . . . . . . . . . . . 59<br />
Cvmmonwealth v. Bonomi,<br />
335 <strong>Mass</strong>. 327 (1957) . . . . . . . . . . . . . . Zln.<br />
Commoawealth v. Brown,<br />
451 <strong>Mass</strong>. 200 (2008) . . . . . . . . . . . . . . . 16<br />
ix
Commonwealth v. Carter,<br />
39 <strong>Mass</strong>. App. Ct. 439 (1995) . . 63n.<br />
Commonwealth v. Cast,<br />
407 <strong>Mass</strong>. 891 (1990) . . . . . . . . . . . . . . . 30<br />
Commonwealth v. Cefalo,<br />
381 <strong>Mass</strong>. 319 (1980) . . . . . . . . . 58<br />
Commonwealth v. Coren,<br />
437 <strong>Mass</strong>. 723 (2002) . . . . . . . . . . . . . . . 22<br />
Commonwealth v. Cowie,<br />
404 <strong>Mass</strong>. 119 (1989) . . . . . . . . . . . . . . . 30<br />
Commonwealth v. Cuffie,<br />
414 <strong>Mass</strong>. 632 (1993) . . . . . . . . . . . . . . . 36<br />
Commonwealth v. Curnin,<br />
409 <strong>Mass</strong>. 218 (1991) . . . . . . . . . . . . . . . 45<br />
Commonwealth v. Curtis,<br />
417 <strong>Mass</strong>. 19 (1994) . . . . . . . . . . . . . . . 46<br />
Commonwealth v. DeMarcv,<br />
444 <strong>Mass</strong>. 678 (2005) . . . . . . . . . . . . . . 21n.<br />
Commonwealth v. Dubois,<br />
451 <strong>Mass</strong>. 20 (2008) . . . . . . . . . . . . . . . 30<br />
Commonwealth v. Evans,<br />
438 <strong>Mass</strong>. 142 (2002) . . . . . . . . . .<br />
Commonwealth v. Ewinq,<br />
67 <strong>Mass</strong>. App. Ct. 531 (2006) . . . . . .<br />
10, 12<br />
. . . . . 18<br />
Commonwealth v. FidlPr,<br />
377 <strong>Mass</strong>. 192 (1979) . . . . . . . . . 36, 38, 39, 41<br />
Commonwealth v. Fordham,<br />
417 <strong>Mass</strong>. 10 (1994) . . . . . . . . . . . . . . 19n.<br />
Commonwealth v. Gallarelli,<br />
399 <strong>Mass</strong>. 17 (1987) . . . . . . . . . . . 28, 29, 34<br />
Commonwealth v. Gaynor,<br />
443 <strong>Mass</strong>. 245 (2005) . . . . . . . . . . . . . . 53n.<br />
Commonwealth v. Gomez,<br />
450 <strong>Mass</strong>. 704 (2008) . . . . . . . . . . . . . . . 47<br />
x
Commonwealth v. Gordon,<br />
422 <strong>Mass</strong>. 816 (1996) . . . . . . . . . . . . . . . 3<br />
Commonwealth v. Grace,<br />
397 <strong>Mass</strong>. 303 (1986) . . . . . . . . . . . . . . . 26<br />
Commonwealth v. Healy,<br />
438 <strong>Mass</strong>. 672 (2003) . . . . . . . . . . . . . 27, 28<br />
Commonwealth v. Hill,<br />
54 <strong>Mass</strong>. App. Ct. 690 (2002) . . . . . . . . 10, Ion.<br />
Commonwealth v. Horton,<br />
434 <strong>Mass</strong>. 823 (2001) . . . . . . . 6n.<br />
Commonwealth v. Howard,<br />
205 <strong>Mass</strong>. 128 (1910) . . . . . . . . . . . . . . 2111.<br />
Commonwealth v. Hunt,<br />
392 <strong>Mass</strong>. 28 (1984) . . . . . . . . 42<br />
Commonwealth v. Kincaid,<br />
444 <strong>Mass</strong>. 381 (2005) . . . . . . . . . . . . . 38, 33<br />
Commonwealth v. Lanisan,<br />
419 <strong>Mass</strong>. 15 (1994) . . . 44, 48, 49. 50, 53, 56, 57<br />
Commonwealth v. Lavallev,<br />
410 <strong>Mass</strong>. 641 (1991) . . . . . . . . . . . 17<br />
Commonwealth v. Leonard,<br />
428 <strong>Mass</strong>. 782 (1999) . . . . . . . . . . . . . . . 20<br />
Commonwealth v. Lvkus,<br />
451 <strong>Mass</strong>. 310 (2008) . . . . . . . . . . . . . . . 29<br />
Commonwealth v. Maqraw,<br />
426 <strong>Mass</strong>. 589 (1998) . . . . . . . . . . 2111.<br />
Commonwealth v. Marbvart,<br />
437 <strong>Mass</strong>. 331 (2002) . . . . . . . . 10<br />
Commonwealth v. Martin,<br />
417 <strong>Mass</strong>. 187 (1334) . . . . . . . . . . . . . . . . 4<br />
Commonwealth v. Martin,<br />
427 <strong>Mass</strong>. 816 (1998) . . . . . . .<br />
Commonwealth v. Martin,<br />
442 <strong>Mass</strong>. 1002 (2004) . . . . . .<br />
xi<br />
. 28<br />
. 20
Commonwealth v. Martinez,<br />
425 <strong>Mass</strong>. 382 (1997) . . . . . . . . . . . . . . . 45<br />
Commonwealth v. McCarthv,<br />
428 <strong>Mass</strong>. 871 (1999) . . . . . . . . . . . . . . . 61<br />
Commonwealth v. MCNickles,<br />
434 <strong>Mass</strong>. 839 (2001) . . . . . . . . . . . . . 10, 12<br />
Commonwealth v. Molina,<br />
439 <strong>Mass</strong>. 206 (2003) . . .<br />
Commonwealth v. Murahy,<br />
448 <strong>Mass</strong>. 452 (2007) . . .<br />
. . . . . 38<br />
Commonwealth Y. Nardi,<br />
452 <strong>Mass</strong>. 379 (2008) . . . . . . . . . . . . . 11, 12<br />
Cpmpgnwealth v. Nickersgn,<br />
386 <strong>Mass</strong>. 54 (1982) . . * . . . . . 17<br />
Commonwealth v. Olszewski,<br />
401 <strong>Mass</strong>. 749 (1988) . . . . . . . . . . . . . . . 28<br />
Commonwealth v. Ortiz,<br />
376 <strong>Mass</strong>. 349 (1978) . . . . . . . . . . . . . . . 61<br />
Commonwealth v. Patterson,<br />
445 <strong>Mass</strong>. 626 (2005) . . . . . . . . . . . . 44, 5311.<br />
Commonwealth v. Perez,<br />
444 <strong>Mass</strong>. 143 (2005) . . . . . . . . . . . . . . . 22<br />
Commonwealth v. Perkins,<br />
450 <strong>Mass</strong>. 834 (2008) . . . . . . . . . . . . . . . 30<br />
Commonwealth v. Petera,<br />
429 <strong>Mass</strong>. 22 (1999) . . . . . . . . . . . . . . . 46<br />
Commonwealth v. Randwluh,<br />
438 <strong>Mass</strong>. 290 (2002) . . . . . . . . . . . . . . . 5<br />
Commonwealth v. Ravmond,<br />
424 <strong>Mass</strong>. 382 (1997) . . . . . . . . . . . . . . . 26<br />
Commonwealth v. Richotte,<br />
59 <strong>Mass</strong>. App. Ct. 524 (2003) . . . . . . . . . . . 17<br />
Commonwealth v. Robertson,<br />
408 <strong>Mass</strong>. 747 (1990) . . . . . . . . . . . . . . . 20<br />
xii<br />
6n +
I<br />
Commonwealth v. Rosa,<br />
412 <strong>Mass</strong>. 147 (1992) . . . . . . . . . . . . . . . 22<br />
Commonwealth v. Rosenthal,<br />
432 <strong>Mass</strong>. 124 (2000) . . . . . . . . .<br />
Commonwealth v. Rutkowski,<br />
406 <strong>Mass</strong>. 673 (1990) . . . . . . . . .<br />
Commonwealth v. Rutledse,<br />
356 <strong>Mass</strong>. 499 (1969) . . . . . . . . . . . . . . . 26<br />
Commonwealth v. Saferian,<br />
366 <strong>Mass</strong>. 89 (1974) . . . . . . . . . . . 45. 46. 57<br />
Commonwealth v. Satterfiu,<br />
373 Maea. 109 (1977) . . . . . . . . . . . . . 46, 57<br />
Commonwealth v. Schand,<br />
420 <strong>Mass</strong>. 783 (1995) . . . . . . . . . . 30<br />
Commonwealth v. Sheppard,<br />
394 <strong>Mass</strong>. 381 (1985) . . . . . . . . . . . . . . 58n.<br />
Commonwealth v. Simmons,<br />
392 <strong>Mass</strong>. 45 (1984) . . . . . . . . . . . . . 61, 62<br />
Commonwealth v. Saarks,<br />
433 <strong>Mass</strong>. 654 (2001) .<br />
Commonwealth v. Talbot,<br />
444 <strong>Mass</strong>. 586 (2005) ,<br />
21<br />
58<br />
. . + . , . 10, 10n.<br />
. . . . . . . . . 22<br />
Commonwealth v. Tucceri,<br />
412 <strong>Mass</strong>. 401 (1992) . . . . . . . . . . . . . . . 28<br />
Commonwealth v. Vardinaki,<br />
438 <strong>Mass</strong>. 444 (2003) . . . . . . . . . . . . . . . 38<br />
Commonwealth v. Walker,<br />
443 <strong>Mass</strong>. 213 (2005) . . . . . . . . . 30<br />
Commonwealth v. Watkins,<br />
33 <strong>Mass</strong>. App. Ct. 7 (1992) . . . . . . . . . . . 63n.<br />
Commonwealth v. Wriqht,<br />
411 <strong>Mass</strong>. 678 (1992) . . . . . . . . . . . . . . . 64<br />
Ex Parte Thomas,<br />
666 So.2d 855 (Ala. 1995) . . . . . . . . . . . 37n.
FitzDatrick v. Allen,<br />
410 <strong>Mass</strong>. 791 (1991) . . . . . . . . . . . 39n., 4311.<br />
Gentrv v. State,<br />
236 Ga. App. 820 (1999) . . . . . . . 37<br />
HooDer v.State,<br />
680 N.W.2d 89 (Minn. 2004) . . . . . 27n.<br />
Markee v. Biasetti,<br />
410 <strong>Mass</strong>. 785 (1991) . . . . . . . . . . . 39n., 4311.<br />
Marshall v. State,<br />
305 N.W.2d 838 (S.D. 1981)<br />
. . . . 27n.<br />
People v. Bosle,<br />
41 Cal. App. 4th 770 (1995) . . . . . . . . . . . 37<br />
PeoDle v. Hendricks,<br />
137 I11.2d 31, 560 N.E.2d 661 (1990) . . . . . . 21n.<br />
State v. Britt,<br />
360 s . E . ~ 660 (N.c. 1987) . . . . . . . . . . . 27n.<br />
State v. Caldwell,<br />
322 N.W.2d 574 (Minn. 1982) . . . . . . . . . . . 35<br />
State v, Maeole,<br />
617 P.2d 820 (Hawaii 1980) . . . . . . . . 27n.<br />
State v. Russo,<br />
700 A.2d 161 (Del. Super. 1396) . . . . . . . . 27n.<br />
State v. Scroqqine,<br />
110 ID 380 (1985) . . . . . . . . . . . . . . . 27n.<br />
Statutes and Constitutional Provisions<br />
28 W.S.C. 52255 . . . . . . . . . . . . . . . . . 6<br />
M.G.L.C. 278. §33E . . . . . . . . . . 6, 30, 47, 64<br />
<strong>Mass</strong>achusetts Declaration of Rights<br />
Article XI1 . . . . . . . . . . . . . 11, 36, 45, 46<br />
<strong>Mass</strong>achusetts Declaration wf Rights<br />
Article XIV . . . . . . . . . . . . . . . . . 58, 61<br />
xi,
U.S. Constitution,<br />
Fourth Amendment . . . . 58, 61<br />
U.S. Constitution,<br />
Fifth Amendment . . . . . . . . . . . . . . . 23, 45<br />
U.S. Constitution,<br />
Sixth Amendment . . . . . . . . . . . . . . 6, 11, 36<br />
U.S. Constitution,<br />
Fourteenth Amendment . . . . . . . . . 11, 29, 36, 45<br />
Other Authorities<br />
6 W.R. LaFave, Search and Seizure,<br />
S11.4 (4‘” ed. 2004) . . . . . . . . . . . . . . . 59<br />
Blumenson, Fisher, & Kanstroom,Z <strong>Mass</strong>achusetts<br />
Criminal Practice ~ 1 5 . 2 (1998 ~ & 2001 Supp.) , . 6311.<br />
Annotation. Proorietv of Juror‘s<br />
Tests or Exweriments in J un Room,<br />
31 A.L.R. 4th 566 (1984) . . . . . . . . . . . . . 36<br />
XV
STATEMENT OF THE CASE<br />
Dirk K. Greineder ["Greineder"] was convicted of the<br />
first degree murder of his wife, Mabel ["Ms. Greineder"] .<br />
His direct appeal was stayed to permit him to file a<br />
motion for new trial, which was remanded to the trial<br />
judge (Chernoff, J.) . On October 31, 2007, Judge Chernoff<br />
denied Greineder's amended motion for new trial.<br />
STATEMENT OF RELEVANT FACTS<br />
An overview of the trial evidence is set forth in<br />
the trial judge's 61-page appendix to his decision<br />
denying Greineder's new trial motion. A 912.l The facts<br />
relevant to each of the specific arguments herein appear<br />
in those respective sections of the brief.<br />
SU'MWRY OF THE ARGUMENT<br />
Greineder's constitutional right to a public trial<br />
was violated when all of juror voir dire took place in<br />
private. (pp. 2-6) The admission of inculpatory DNA test<br />
results, over objection, through a witness who neither<br />
conducted the testing nor reviewed the raw data violated<br />
Greineder's constitutional right to confrontation and the<br />
rule against hearsay. (pp. 6-12) The prosecutor's<br />
misconduct in deliberately exploiting Greineder's rights<br />
to remain silent, to prepare and present a defense, and<br />
1<br />
References to the trial transcript are abbreviated<br />
herein as "z. [vol. I / [page (a) 1 ." References to the pre-trial and<br />
post-trial transcripts are abbreviated as "a. [date] / [page(s)l ."<br />
References to the defendant's record-appendix are abbreviated a6 "a.<br />
[pagels)l ."
to attend his trial violated his constitutional right to<br />
due process and deprived him of a fair trial. (pp. 12-19)<br />
The admission of irrelevant and unfairly prejudicial<br />
evidence regarding Greineder's extramarital sexual<br />
activities deprived him of a fair trial. (pp. 19-26)<br />
The post-trial recantation of key opinion testimony<br />
by the Commonwealth's footprint expert warrants a new<br />
trial. (pp. 26-35) An experiment conducted by the<br />
deliberating jury exposed the jury to prejudicial<br />
extraneous information, requiring a new trial. (pp. 35-<br />
43) Greineder was deprived of constitutionally effective<br />
assistance of counsel by his counsel's failure to move:<br />
(1) to exclude scientifically unreliable DNA test results<br />
or challenge those results at trial; (2) to suppress a<br />
receipt seized pursuant to a general search warrant; and<br />
(3) to suppress the fruits of an unconstitutional car<br />
search. (pp. 43-64) The myriad errors committed at trial<br />
warrant relief under M.G.L.c. 278,S333. (pp. 64-65)<br />
ARGUMENT<br />
I. GREINEDER WAS DENIED HIS RIGHT TO A PUBLIC TRIAL.<br />
A. Statement of Relevant Facts.<br />
Trial commenced on May 21, 2001 with jury selection.<br />
Prospective jurors were summoned one at a time for<br />
individual voir dire, which took place in a small<br />
courtroom, Room 8 . z. 1/5. Judge Chernoff explained:<br />
2
First of all, we are in Room 8. The record<br />
should reflect that we are in Room 8 for the<br />
purposes of conducting a non-public individual<br />
voir dire of the jurors.<br />
- Id. at 37; A. 127.’ The defendant was formally placed at<br />
the bar for trial in this same private setting. a.<br />
Judge Chernoff made no findings on the record to<br />
justify conducting this portion of the trial in private.<br />
After an adequate number of indifferent jurors were<br />
identified, the process continued in Courtroom 10. z.<br />
II/246. There, jurors were seated, peremptory challenges<br />
were exercised, and the jury was sworn. z. at 279.<br />
B. Summary of Applicable Law.<br />
A public trial is guaranteed by the First and Sixth<br />
Amendments to the Constitution. Press-Enterorise Co. v.<br />
Superior Court of Cal., 464 U.S. 501, 505 (1984); Waller<br />
v. Georsia, 467 U.S. 33, 46 (1984). Closure of any<br />
portion of a trial requires ”an overriding interest based<br />
on findings that closure is essential to preserve higher<br />
values and is narrowly tailored to serve that interest.((<br />
Press-Enternrise, 464 U. S. at 510. “The guarantees of<br />
open public proceedings in criminal trials cover<br />
proceedings for the voir dire examination of potential<br />
jurors concerning their qualifications to serve. ‘I<br />
Commonwealth v. Gordon, 422 <strong>Mass</strong>. 816, 823 (1996).<br />
Prior to trial. the judge stated that he had met with<br />
members of the media “who have an interest in being present during<br />
the public part of this case.“ E. 5/18/01 at 3 (emphasis added).<br />
3
In Owens v. United States, 483 F.3d 48 (1st Cir.<br />
2007), the court found that the closure of the courtroom<br />
during jury selection "call [SI into question the<br />
fundamental fairness of [defendant's] trial.!' s. at 65.<br />
Such a violation of the right to a public trial<br />
constitutes structural error, entitling a defendant to<br />
relief without a showing of actual prejudice. la. at 65-<br />
66. Relief is necessary because a public trial is a<br />
"basic protection" whose "precise effects are<br />
unmeasurable, but without which a criminal trial cannot<br />
reliably serve its function." s, at 64. Sea also<br />
Commonwealth v. Martin, 417 <strong>Mass</strong>. 187, 196 (1994).<br />
C. Application of Law to Facts.<br />
1. The first portion of the trial was<br />
improperly closed to the public.<br />
The trial court barred the public from attending<br />
individual voir dire, thereby violating Greinederls<br />
constitutional right to a public trial. The closure was<br />
not limited to questioning regarding claims of personal<br />
hardship by jurors, cf. Gordon, 422 <strong>Mass</strong>. at 823, but<br />
covered the entirety of voir dire. The court made none<br />
of the findings necessary to justify such a closure. It<br />
neither explained why closure was necessary to "preserve<br />
higher values" nor how blanket closure was "narrowly<br />
tailored" to serve those values. It did not state that<br />
alternatives had been considered and rejected or find any<br />
4
logistical reasons for closure.3 As the court did not<br />
make the necessary contemporaneous findings, closure<br />
cannot be justified after the fact. United States v.<br />
Antar, 38 F.3d 1348, 1361 (3d Cir. 1994).<br />
2. Greineder i s entitled to relief.<br />
Although there was no objection at trial to the<br />
private jury selection procedure, a constitutional right<br />
of this magnitude i s not waived merely by a failure to<br />
object. “[Llike other fundamental trial rights, a right<br />
to a public trial may be relinquished only upon a showing<br />
that the defendant knowingly and voluntarily waived such<br />
a right.“ Walton v. Brilev, 361 F.3d 431, 433 (7th Cir.<br />
2004). There is no evidence that Greineder voluntarily<br />
waived a known constitutional right. There was no<br />
colloquy. Federal case law has established that loss of<br />
the right to a public trial cannot be deemed<br />
nonprejudicial. Indeed, as the court explained in Owens,<br />
the error is a structural one, so prejudice is presumed.<br />
Even if this Court holds that Greineder should have<br />
objected to the closure at trial, his failure to do so<br />
constituted ineffective assietance of counsel. ~ e e<br />
Commonwealth v. Randolah, 438 <strong>Mass</strong>. 290. 294-296 (2002).<br />
As in m:<br />
3 Since the individual voir dire took place in a courtroom<br />
and the other jurors were waiting elsewhere, there was clearly<br />
enough space to accommodate some members of the public.<br />
5
counsel's failure to object to closing the<br />
trial for an entire day of jury selection, one<br />
of the most important phases of a criminal<br />
trial, deprived Owens of a substantial fair<br />
trial right .... [We do not see how the<br />
failure to object to the closure could have<br />
been sound trial strategy.<br />
483 F.3d at 64. Trial counsel's failure to object<br />
deprived Greineder of his Sixth Amendment right to<br />
effective assistance of counsel, so reversal is required.<br />
The closure, an unconstitutional, structural. error,<br />
also created a substantial risk of a miscarriage of<br />
justice under M.G.L.c. 278, 533E. Greineder is entitled<br />
to relief, even if the error is deemed unpreserved. I€<br />
such an error was deemed sufficient in Owens to meet the<br />
rigorous 52255 standard for relief, it certainly entitles<br />
a defendant to relie€ under 533E. A structural error, one<br />
that "infect[al the entire trial process," Neder v.<br />
United States, 527 U.S. 1, 8 (1999), by definition<br />
carries with it a risk of miscarriage of justice.'<br />
11. THE TRIAL <strong>COURT</strong>'S ADMISSTON, OVER OBJECTION, OF<br />
INCULPATORY DNA TEST RESULTS VIOLATED GREINEDER'S<br />
CONSTITUTIONAL RIGHT TO CONFRONTATION AND THE<br />
PROSCRIPTION AGAINST HEARSAY.<br />
A. Statement of Relevant Facts.<br />
A key piece of the Commonwealth's case was<br />
In -, 434 <strong>Mass</strong>. 023, 832-833<br />
12001), this Court held that excluding the public from jury<br />
selection did not create a substantial likelihood of a miscarriage<br />
of justice. After m, however, a showing of prejudice is not<br />
required as a matter of federal law. See Commonwealth v. Muruhv, 448<br />
Maas. 452, 462 (2007) (<strong>Mass</strong>achusetts courts "give great deference to<br />
decisions of Federal courts if they seem persuasive").<br />
6
inculpatory DNA test results linking Greineder to the<br />
knife and brown work gloves presumably used by his wife's<br />
killer. The Commonwealth presented those results at trial<br />
through the testimony of Dr. Robin Cotton, the forensic<br />
laboratory director of Cellmark Diagnostics. She<br />
testified that all of Cellmark's DNA testing in this case<br />
was conducted by Wendy Magee and reviewed by Jennifer<br />
Reynolds or Lewis Maddox. z. 11/207; 13/26-27. Neither<br />
Magee, Reynolds, nor Maddox testified at trial.<br />
Dr. Cotton testified that Cellmark conducted STR-<br />
based DNA testing using the Profiler Plus@ and Cofiler@<br />
testing kits. E. 11/210. On voir dire, she explained<br />
that the testing process produces electronic data<br />
recorded onto a CD-ROM and run through Genescan and<br />
Genotyper software. z. 11/236; 12/17. The technical.<br />
analyst decides which filters and scales to apply, thus<br />
determining how much of the data appears a8 a series of<br />
visible peaks on a printed diagram called an<br />
"electropherogram." a. 11/186-188,242-243; 12/6-7, 195-<br />
196, As Dr. Cotton explained:<br />
- Id. at 7.<br />
It's possible to display the data in a lot of<br />
different ways, and adjust the scales of the<br />
data, and essentially enlarge areas .... It's<br />
flexible like that for a reason, because you<br />
need that flexibility in doing the analysis.<br />
Dr. Cotton testified that the electropherograms<br />
7
.<br />
reviewed and interpreted by the analyst do not contain<br />
all of the electronic data. since some has been filtered<br />
out. E. 12/197. Based on her interpretation of the<br />
remaining data, the analyst instructs the computer which<br />
peaks to label as actual DNA alleles. x. 11/190. Dr.<br />
Cotton noted: “There are things that may show up as peaks<br />
that we have to recognize are not real peaks.” a. The<br />
determination of whether a peak represents an actual<br />
allele or an “artifact“ is made by the analyst and<br />
confirmed by the technical reviewer. z. Dr. Cotton did<br />
not know whether the technical reviewer examined the<br />
unfiltered electronic data in this case. E. 12/24.<br />
Dr. Cotton didn‘t conduct any of the DNA testing,<br />
serve as a technical. reviewer, or examine the underlying<br />
raw empirical data. z. 13/27-28. She didn’t look at the<br />
data with the stutter filters removed. s. at 163-164.5<br />
Defense counsel’s objection to Dr. Cotton‘s testimony<br />
reporting the DNA test results based upon her lack of<br />
personal knowledge was overruled. E. 11/208-209.<br />
Dr. Cotton proceeded to tell the jury the DNA<br />
results reported by Wendy Magee on the three key items of<br />
evidence in the case - the knife and brown work gloves<br />
recovered from the storm drains at Morse Pond. She<br />
Stutter filters remove all smaller peaks at each locus, 5.<br />
13/142, thus making significant data unavailable to Dr. Cotton based<br />
solely upon the unexplained discretion of the analyst.<br />
8
testified that Greineder could not be excluded as a<br />
contributor to the mixture of DNA found on each of those<br />
three items, specifying the statistical likelihood of a<br />
random match probability for the same combination of<br />
alleles. Charts detailing those inculpatory test results<br />
were distributed to the jurors during trial and made<br />
available to them during deliberations. n. 12/13-60.<br />
Having permitted Dr. Cotton to testify over<br />
objection about the test results obtained by Wendy Magee,<br />
the trial judge prohibited defense counsel from<br />
introducing electropherograms displaying the raw,<br />
unfiltered data underlying those same results. E.<br />
13/111. In objecting to the admission of such materials,<br />
the prosecutor declared:<br />
This is a complex set of information, run<br />
through a complex program. And there’s a lot<br />
of variables, including the filters that you<br />
talk of, to take out stutter, to take out<br />
artifacts. And the person who did this and<br />
made those decisions to sun it in a certain<br />
way needs to get up there and verify that....<br />
I Id. at 7 (emphasis added). Yet the person who made those<br />
decisions for Cellmark (Wendy Magee) did not “yet up<br />
there” and testify at trial.<br />
B. Summary of Applicable Law.<br />
An expert witness is permitted to rely upon facts or<br />
data not in evidence in formulating an opinion, but<br />
prohibited from describing those underlying facts or data<br />
9
on direct examination. Commonwealth v. Markvart, 437<br />
<strong>Mass</strong>. 331, 338-339 (2002). (” [Aln expert‘s direct<br />
examination is not a vehicle for the introduction of<br />
facts in evidence (other than those the expert directly<br />
observed). . . .“) Thus, in Commonwealth v. Evans, 438 <strong>Mass</strong>.<br />
142, 152 (2002), this Court held that the trial court<br />
erred in permitting a laboratory technician to testify<br />
about the results of testing performed by someone else.<br />
Similarly, in Commonwealth v. McNickles, 434 <strong>Mass</strong>. 839,<br />
855-857 (2001), the Court concluded that Dr. Cotton<br />
ahould not have been permitted to testify on direct<br />
examination about observations made by other Cellmark<br />
analysts. :f. Commonwealth v. Saarks, 433 <strong>Mass</strong>. 654, 659-<br />
660 (2001) (no error in admitting Dr. Cotton’s testimony<br />
about test results where she conducted “an independent<br />
review of the empirical data separate and apart from the<br />
review undertaken by [the analyst]“ which “encompassed<br />
all that the original [staff scientist had done] .“);<br />
Commonwealth v. Rill, 54 <strong>Mass</strong>. App. Ct. 690, 694-697<br />
(2002) (to the same effect) .‘<br />
Hill (and presumably Suarks) involved older DNA testing<br />
methodologies where Cellmark’s case folder contained all of the raw<br />
empirical data relied upon by the technical analysts in interpreting<br />
test results. See Hill, 54 <strong>Mass</strong>. App. Ct. at 695, n.5. In the<br />
instant case, however, both the testing methodology employed and the<br />
contents of Cellmark’s case folder were dramatically different.<br />
Here, the printed electropherograms constituted ahridged versions of<br />
the raw, electronic data produced by the testing process, and<br />
explanations for the subjective, discr@tionary interpretations made<br />
by the technical analyst, critical to shaping Cellmark’s reported<br />
(continued.. .)<br />
6 -<br />
10
This Court held in Bmmonwealth v. Nardi, 452 <strong>Mass</strong>.<br />
379 (2008). that it was error for a doctor to testify<br />
about findings in another doctor's autopsy report which<br />
involved the exercise of judgment and discretian. a. at<br />
393. Presentation of those findings through another<br />
witness was "inadmissible hearsay and testimonial in<br />
nature." a. at 392. As this Court recognized in Nardi,<br />
Crawford v. Washinqton, 541 U.S. 36 (20041, established<br />
a constitutional bar to the admission of test results<br />
through a witness who did not perform the testing.<br />
C. Application of Law to Facts.<br />
Dr. Cotton's testimony reporting the DNA test<br />
results generated by Wendy Magee was blatant, testimonial<br />
hearsay. Admission of that evidence, over objection,<br />
violated Greineder's rights to confrontation under the<br />
Sixth and Fourteenth Amendments and Article XII. While<br />
Dr. Cotton did review the case file, she did not examine<br />
the raw, unfiltered, empirical data. Rather, she only saw<br />
what remained after Magee instructed the computer which<br />
data to filter out and which peaks to label as DNA<br />
alleles. She was thus not competent to interpret or opine<br />
about the xaw data, which she had never seen, ox explain<br />
the decisions made by Wendy Magee and the technical<br />
6(...continued)<br />
test results, were unknown to the testifying witness<br />
11
eviewers in filtering out portions of the raw data and<br />
selecting peaks to label as true alleles. As in Evans,<br />
McNickles, and Nardi, Dr. Cotton was simply reporting the<br />
results of another scientist's exercise of judgment and<br />
discretion. Those inculpatory results were effectively<br />
insulated from confrontation and cross-examination as a<br />
result of this improper, second-hand presentation. Given<br />
the importance of the DNA evidence to the Commonwealth's<br />
case, this preserved error was clearly not harmless<br />
beyond a reasonable doubt. It was prejudicial error,<br />
requiring reversal of Greineder's conviction.<br />
111. GREINEDER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY<br />
THE PROSECUTOR'S CROSS-EXAMINATION AND CLOSING<br />
ARGUMXNT.<br />
A. Statement of Relevant Facta<br />
1. Timeline.<br />
When the police responded to Morse Pond, Greineder<br />
was first questioned by Detective McDermott and then by<br />
Trooper Foley. D. 6/249-262; 10/37-61. Greineder was<br />
then taken to the Wellesley police station, where he<br />
called Attorney Terry Seqal, who came to the station.7<br />
Id. at 63-72. Police later applied for a search warrant<br />
for Greineder's residence, which they executed early the<br />
following morning. At that: the, Greineder was informed<br />
The motion judge found that after attorney segal arrived<br />
and spoke to Ereinecier, Greineder informed McDermott Chat Begal had<br />
told him not ta speak wi.th them anymore. &. 16.<br />
12
of his Miranda rights. a. at 112-124.<br />
2. The Commonwealth's evidence regarding<br />
Greineder's statements about trying to<br />
assist his wife.<br />
BothMcDermottand Foley testified about Greineder's<br />
statements respecting his attempts to assist Ms.<br />
Greineder. McDermott testified that Greineder told her<br />
that he tried to "rouse" his wife. She testified that<br />
Greineder later stated that he touched his wife's body<br />
after returning from his van, but did not indicate<br />
exactly how. E. 6/251-261; 7/15-28, 123, 130. Foley<br />
testified:<br />
He [Greinederl told me that he tried to pick<br />
her up. Be said that he couldn't pick her up.<br />
She weighed 120 lbs., and he used to be able<br />
to lift 250 Lbs. and he couldn't lift her, she<br />
was like a dead weight.<br />
- Tr. 11/109-110.<br />
3. Greineder's direct teatimony.<br />
Greineder testified that he tried to pick up his<br />
wife three times, first while kneeling at her right side.<br />
Then he stepped over her and tried again. When that did<br />
not work, he went to the other side of her body, squatted<br />
down, and again tried to lift her. z. 20/78-82. He was<br />
then told to back away and did so. Greineder remembered<br />
"sort of backing up on my knees, and kneeling in or next<br />
to a bloodstain in the middle of the path. a. at 93-94.<br />
4. Cross-examination of Greineder about<br />
efforts to pick up Ma. Greineder.<br />
13
On cross-examination, the prosecutor xepeatedly<br />
attacked Greineder's testimony that he attempted to pick<br />
up Ms. Greineder three times, focusing on his failure to<br />
tell the police this detail earlier and suggesting that<br />
his trial testimony had been fabricated in response to<br />
the Commonwealth's evidence and in an effort to buttress '<br />
the defense case. The prosecutor asked Greineder: "You<br />
never told the police that [you tried to pick up your<br />
wife a number of times] prior to today, did you?"<br />
Greineder replied: "They never asked. 'I E. 20/144. The<br />
prosecutor continued, asking Greineder twice whether "the<br />
first time you ever mentioned that to anybody in any kind<br />
of law enforcement capacity was here today at trial." a.<br />
at 146 (emphasis added). Defense counsel's objection was<br />
twice sustained. Undaunted, the prosecutor continued:<br />
" [Wlhen you spoke to investigators about the death of<br />
your wife, did you aver mention that you had tried to<br />
pick her up more than once?" a. (emphasis added)<br />
The prosecutor implied that expert testimony<br />
regarding stains on Greineder's jacket had prompted a<br />
change in Greineder's story: "[Dlid the testimony<br />
regarding this jacket have anything to do with jarring<br />
your memory on that?" B. 20/152. When Greineder denied<br />
this, the prosecutor then asked whether Greineder thought<br />
it was important to mention his multiple attempts to pick<br />
14
up Ms. Greineder . Greineder replied: "It didn' t come up. "<br />
a. at 153-154. The prosecutor continued to question<br />
Greineder about his failure to tell officers that he had<br />
tried three times to pick up his wife. E. 21/88-89.<br />
Finally, he questioned Greineder about his contact<br />
with Stuart James, a defense expert, implying that<br />
Greineder's trial testimony was tailored to support<br />
James' opinion. He asked: "Nothing happened over this<br />
weekend to make you recollect things better .... You<br />
didn't have any conversation with a Stuart James over<br />
this weekend that caused you to remember lifting your<br />
wife on three occasions?" u. at 107-108. Greineder<br />
replied that he had never spoken with James. a.<br />
5. Croaa-examination of Greineder about heel<br />
mark.<br />
The prosecutor also asked Greineder whether he told<br />
Foley that he was on his knees and then backed into the<br />
pool of blood. He implied that Greineder had fabricated<br />
this testimony after hearing Det. Rebeiro's trial<br />
testimony: "You didn't ever say that until you heard<br />
Deborah Rebeiro talk about your heel mark in that blood. 'I<br />
E. 20/149-151. He further questioned Greineder about the<br />
positioning of his body as he attempted to pick up Ms.<br />
Greineder:<br />
Q: And as you remembered today, sir, at the<br />
close of the Commonwealth's case, is it<br />
important to you that you're not kneeling<br />
15
A: No.<br />
in such a way so that your feet are<br />
behind you?<br />
Q: Did you come to that realization this<br />
weekend, by any chance, sir?<br />
A: No.<br />
z. 21/103.<br />
6. Prosecutor's closing argument.<br />
In his closing, the prosecutor argued that<br />
Greineder's testimony that he tried to pick up Ms.<br />
Greineder three times was concocted to support Stuart<br />
James' blood spatter testimony and stressed that<br />
Greineder had not provided this account previously. n.<br />
25/63. He returned to this theme later, claiming that<br />
Greineder's story did not emerge "until ".. Stuart James<br />
told him" about the spatter evidence. Id. at 78. Finally,<br />
he contended that Greineder's "story" of trying to pick<br />
up Ms. Greineder three times was the product of "a year-<br />
and-a-half of careful construction." =. at 87-88.<br />
B. Sununary of Applicable Law.<br />
1. Ban on exploiting post-arrest silence.<br />
'I [A] defendant's silence after Miranda warnings have<br />
been given may not be used to support an inference of<br />
guilt." Commonwealth v. Brown, 451 <strong>Mass</strong>. 200, 208 (ZOOS),<br />
citinq Doyle v. Ohio, 426 U.S. 610, 617-618 (1976). That<br />
"absolute prohibition is not negated when a defendant<br />
16
waives that right and makes voluntary statements to<br />
investigators." Commonwealth v. Richgtte, 59 <strong>Mass</strong>. App.<br />
Ct. 524, 526 (2003). If a defendant does make a<br />
statement, direct contradictions between that statement<br />
and the defendant's trial testimony can be brought out.<br />
Commonwealth v. Lavalley, 410 <strong>Mass</strong>. 641, 648-650 (1991).<br />
The prosecutor may not emphasize what a defendant "failed<br />
to say," but may only "argue that what he did say was<br />
wholly incompatible with the defense proffered at trial. ''<br />
Richotte, 59 <strong>Mass</strong>. App. Ct. at 529.<br />
2. Ban on comment on pre-arreat silence.<br />
This Court has held:<br />
[Ilmpeachment of a defendant with the fact of<br />
his prearrest silence should be approached<br />
with caution, and, wherever it is undertaken,<br />
it should be prefaced by a proper<br />
demonstration that it was 'natural' to expect<br />
the defendant to speak in the circumstances.<br />
Commonwealth v. Nickerson, 386 <strong>Mass</strong>. 54, 63 (1982). It<br />
may not always be "natural" for a witness to disclose<br />
even exculpatory information since "the witness ... may<br />
not realize the significance of the information he<br />
possesses." a., at 58 n.4.<br />
3. Ban on suggesting that a defendant has<br />
tailored testimony to fit trial evidence.<br />
A defendant has the right to "wait until after the<br />
prosecution ha[sl made its case before revealing his<br />
story." Commonwealth v. Beauchama, 424 <strong>Mass</strong>. 682, 690-691<br />
17
(1997). While the prosecutor can attack a defendant's<br />
credibility, "the prosecutor may not elicit evidence of<br />
the defendant's silence, his request for an attorney, or<br />
the discussions the defendant had with his attorney to<br />
argue that the defendant fabricated his story." Id. at<br />
691 (holding improper an argument "that because the<br />
defendant sat through all the Commonwealth's evidence he<br />
was able to fabricate a cover story tailored to answer<br />
every detail of the evidence against him"). Similarly, a<br />
prosecutor may not argue that a defendant "used his<br />
access to the Commonwealth's evidence before trial to<br />
conform his testimony falsely to fit the evidence against<br />
him." Commonwealth v. Ewinq, 67 <strong>Mass</strong>. App. Ct. 531, 542<br />
(2006). Such an argument infringes on the defendant's<br />
"right to prepare far trial." a.<br />
C. Application of Law to Facta.<br />
The prosecutor deliberately and repeatedly violated<br />
the defendant's right not to be punished for exercising<br />
his constitutional rights by invoking Greineder's<br />
pretrial silence and opportunity to hear the evidence at<br />
trial when he urged the jury to reject his testimony. The<br />
prosecutor relied heavily in cross-examination, over<br />
objection, and closing argument on Greineder's failure to<br />
disclose prior to trial that he attempted to pick up his<br />
wife three times. According to the prosecutor, the fact<br />
18
that Greineder had never mentioned this detail before was<br />
cause to deem it a fabrication. This is exactly the<br />
argument prohibited by law! Greineder was entitled to<br />
wait until trial to disclose his detailed account, and<br />
the fact that he chose to do so was not grounds for<br />
arguing that he should be disbelieved.<br />
This serious error was compounded by the<br />
prosecutor's exploitation of Greineder's right toprepare<br />
for trial and to be present during trial by repeatedly<br />
implying that Greineder's testimony was fabricated to<br />
meet the Commonwealth's case-in-chief. Further, he<br />
implied that Greineder'a testimony was concocted to<br />
buttress testimony provided by Stuart James.' Those<br />
suggestions were constitutionally impermissible. The<br />
repeated and intentional misconduct here amounted to a<br />
concerted assault on the defendant's credibility, a key<br />
issue in the case. No curative instructions were ever<br />
given, and reversal is required.<br />
IV. THE TRIAL <strong>COURT</strong> ERRED IN ADMITTING IRRELEVANT AND<br />
HIGHLY PRE<strong>JUDICIAL</strong> EVIDENCE ABOUT GREINEDER' S<br />
EXTRAMARITAL SEXUAL ACTIVITIES.<br />
A. Statement of Relevant Facta.<br />
The prosecutor had absolutely no good faith basis to<br />
believe that Greineder had spoken to James over the weekend prior to<br />
hi8 testimony, yet he asked questiona regarding auch an imagined<br />
conversation and argued in closing that the nonexistent conversation<br />
took place. a, -, Commonwealth v. Fordham, 417 <strong>Mass</strong>. 10, 20<br />
(1994) (error €or prosecutor "to communicate impressions by innuendo<br />
through questions which are answered in the negative ... when the<br />
questioner has no evidence to support the innuendo").<br />
19
The facts respecting the Commonwealth's admission<br />
and exploitation of a plethora of evidence respecting<br />
Greineder's extramarital sexual activities axe detailed<br />
at pp. 52-62 of the Memorandum of Law in SUppOrt of<br />
Defendant's Motion for New Trial (A. 179-189)and at pp.<br />
28-40 of Defendant's Post-Hearinq Memorandum of Law<br />
Respectinq Ineffective Assistance of Counsel Claims<br />
Unrelated to Expert Testimony. (A. 818-830)<br />
B. Summary of Applicable Law.<br />
1. Admissibility of prior bad acts.<br />
"Prior bad acts are not admissible to show that the<br />
defendant has a criminal propensity or is of bad<br />
character. I' Commonwealth v. Robertson, 408 <strong>Mass</strong>. 747. 750<br />
(1990). Such evidence is admissible when it "pertains to<br />
the defendant's knowledge, intent, motive, method,<br />
identity or some other relevant issue at trial."<br />
Commonwealth v. Leonard, 428 <strong>Mass</strong>. 782, 786 (1999).<br />
Relevance determinations are made by the trial judge, who<br />
must also decide "whether the probative value of the<br />
evidence is outweighed by its prejudicial effect." a.<br />
Evidence that the defendant used an alias may constitute<br />
a "gratuitous, improper, and prejudicial attack on the<br />
defendant's character and credibility." Commonwealth v.<br />
Martin, 442 <strong>Mass</strong>. 1002, 1003 (2004). Mistaken evidentiary<br />
rulings may violate a defendant s right to due process if<br />
20
they render the trial fundamentally unfair. Dowlina v.<br />
United States, 493 U.S. 342, 352 (1990) I<br />
2. Extramarital. sexual activity i6 relevant to<br />
motive to commit murder only when combined<br />
with overt evidence of hostility.<br />
This Court has held that ll[e]vidence of a hostile<br />
relationship between a defendant and his spouse may be<br />
admitted as relevant to the defendant’s motive to kill<br />
the victim spouse. ‘‘ Commonwealth v. Rosenthal, 432 Maas.<br />
124, 127 (2000). However, sexual infidelity alone has<br />
never been equated with a “hostile relationship. ‘I Tn<br />
every case where the Court has treated prior bad acts of<br />
extramarital sexual activity as relevant evidence of<br />
hostility, the defendant also engaged in physical abuse<br />
or expressed disdain towards the victim.’ As other<br />
jurisdictions have recognized, evidence of extramarital<br />
sexual relationships is not, without more, probative of<br />
a motive to commit uxoricide.l’<br />
9<br />
See, m, Commonwealth v. DeMarCO, 444 <strong>Mass</strong>. 678, 683<br />
(2005); Commonwealth v. Mas raw, 426 <strong>Mass</strong>. 589, 596 n.9 (1998);<br />
Commonwealth v. Bonomi, 335 MaSS. 327, 340 (1957); Commonwealth v.<br />
Howard, 205 <strong>Mass</strong>. 128, 133 (1310).<br />
10 ~n casterline v. Scats, 736 S.W.2d 207, 211-212 (TeX.<br />
Ct. App. 1987), the Texas Court of Criminal Appeals held:<br />
Evidence of a troubled marriage alone does not establish<br />
a motive to kill. Spouses in a troubled marriage may be<br />
neither jealous nor emotional, and even if they are,<br />
that jealousy or emotion need not necessarily create a<br />
homicidal motive. It would be highly speculative to<br />
infer that marital infidelity. standing alone. created<br />
a homicidal motive.<br />
See Peoule v. Hendricks, 137 Ill. 31, 54-55, 560 N.E.2d 661 (1990).<br />
-<br />
21
3. The Commonwealth may not misuse evidence<br />
admitted for a limited purpose or refer<br />
to "facta" which were not admitted at<br />
trial in its cloaing argument.<br />
The Commonwealth's misuse of evidence introduced for<br />
a limited purpose is error and may create a substantial<br />
risk of unfair prejudice. See, e.q., Commonwealth v.<br />
Rosa, 412 <strong>Mass</strong>. 147, 157 (1992). Prosecutors must limit<br />
their arguments "to facts in evidence and inferences that<br />
may reasonably be drawn from the evidence." Commonwealth<br />
v. Coren, 437 <strong>Mass</strong>. 723, 731 (2002).<br />
4. Standard of review.<br />
The trial court's determination of whether evidence<br />
is relevant and, if so, whether it is more probative than<br />
prejudicial, is reviewed for "palpable error.<br />
Commonwealth v. Talbot, 444 <strong>Mass</strong>. 586, 589 n.2 (2005).<br />
In adjudicating a claim of error during the<br />
Commonwealth's closing argument, a reviewing court<br />
considers:<br />
(1) whether the defendant seasonably objected;<br />
(2) whether the error was limited to<br />
collateral issues or went to the heart of the<br />
case; (3) what specific ox general<br />
instructions the judge gave the jury which may<br />
have mitigated the mistake; and (4) whether<br />
the error, in the circumstances, possibly made<br />
a difference in the jury's conclusions.<br />
Commonwealth v. Perez, 444 <strong>Mass</strong>. 143, 151 ( 2005).<br />
C. Application of Law to Pacts.<br />
1. The sex evidence was inadmissible.<br />
22
Prior to trial, the Commonwealth managed to convince<br />
the court to admit explosive evidence sullying the<br />
defendant's character on a false premise. Desperately<br />
seeking admission of such evidence, the prosecutor<br />
characterized it as demonstrating a Ilhostile<br />
relationship" probative of motive. D. (1/25/01)/39-40.<br />
Yet the plethora of evidence regarding Greineder's<br />
extramarital sexual activities (and use of an alias in<br />
connection with those activities) admitted at trial did<br />
not provide any link in a chain of evidence proving that<br />
the defendant had a motive to murder his wife. There was<br />
no evidence introduced to suggest that Ms. Greineder<br />
intended to leave Greineder, nor was there any evidence<br />
of hostility between the two. Hence, the sex evidence was<br />
simply not relevant and should have been excluded.<br />
Even if Greineder's extramarital sexual activity had<br />
some conceivable relevance on the issue of motive, any<br />
probative value was far outweighed by the resulting<br />
unfair prejudice. Evidence that Greineder was involved in<br />
extramarital sexual activity, including the use of<br />
prostitutes, group sex, and sadomasochism, was a<br />
transparent attack on his character. Tf Greineder could<br />
lead this secret, repulsive double life, couldn't he also<br />
have secret, repulsive plans to murder his wife? That<br />
implicit suggestion permeated the Commonwealth's case,<br />
23
then was hammered home in closing argument. It was<br />
patently improper, but it worked!<br />
In ruling on Greineder's motion limine, the trial<br />
court allowed the Commonwealth to present evidence about<br />
his sexual activities during the seven days prior to Ms.<br />
Greineder's death. This putative compromise was wholly<br />
ineffectual. The practical result of the ruling was to<br />
make it appear that in the week prior to his wife's<br />
murder, Greineder had suddenly engaged in a wild burst of<br />
extramarital sexual activity. The jury would undoubtedly<br />
have been tempted to infer some connection between this<br />
unprecedented behavior and the murder. To negate that<br />
unfair and erroneous inference, Greineder was forced to<br />
introduce evidence of a longer history of extramarital<br />
sexual activity himself. In the end, the court's ruling<br />
did nothing to protect Greineder from an unfair trial.<br />
2. The Comonwezllth misuaed the sex evidence<br />
during closing argument.<br />
Having hoodwinked the court into believing the sex<br />
evidence was tied to motive, the Commonwealth abandoned<br />
that bogus theory entirely in closing argument. The<br />
prosecutor's inability to connect the sexual evidence in<br />
any way to Ms. Greineder's murder did not deter him from<br />
bringing up the sordid details one more time, improperly<br />
connecting Greineder's sexual activities with the murder:<br />
I wish I could tell you exactly how a person<br />
24
gets to that point [i.e., to commit murder1 in<br />
their own life. I can't. I can't tell you how<br />
a person gets to the point where he's doing<br />
many things that this Defendant was doing.<br />
E. 25/95.''<br />
To make matters worse, the prosecutor referred to<br />
several "facts" which were unsupported by the evidence.<br />
Re told the jury that Greineder had described his wife as<br />
"old and soft," and that Greineder had been seeking out<br />
a woman named "Elizabeth" with whom he had "a long term<br />
standing relationship." B. 25/61. Neither of these<br />
"facts1' was in evidence ." The unfair prejudice resulting<br />
from these fabrications was substantial.<br />
3. Conclusion.<br />
Evidence regarding Greineder's extramarital sexual<br />
activities had no proper place at trial. The Commonwealth<br />
broke its promise to use such evidence solely to<br />
establish Greineder's motive to murder his wife.<br />
Nevertheless, the evidence came in, through witness after<br />
witness, until the Commonwealth had achieved its real<br />
objective of destroying the defendant's character. The<br />
erroneous admission and misuse of this toxic bad acts<br />
evidence contributed significantly to the jury's verdict<br />
li The phrase "many things that this Defendant was doing"<br />
cannot have referred to anything but the extramarital sexual<br />
activities highlighted so many times during trial.<br />
12<br />
On cross-examination, Greineder speciPically denied<br />
that he had made either statement. Tr. 20/169-170. There was no<br />
evidence to the contrary presented at trial.<br />
25
and violated Greineder's right to a fair trial.<br />
V. THE MOTION JUDGE ERRED IN DENYINU GREINEDER'S<br />
MOTION FOR NEW TRIAL BASZD UPON THE RECANTATION OF<br />
DEBORAW REBEIRO.<br />
A. Statement of Relevant Facts,<br />
The facts relevant to this claim are set forth at<br />
pp, 2-11 of Defendant's Supplemental Memorandum of Law<br />
Resrsectinq Recanted Expert Testimony in Support of<br />
Amended Motion for New Trial (A. 892-901). Judge Chernoff<br />
addressed this claim at pp. 60-68 of his Rulinq. (A. 971-<br />
979).<br />
B. Summary of Applicable Law.<br />
1. Recantation by prosecution witness as<br />
grounds for new trial.<br />
Recantation of trial testimony by a prosecution<br />
witness may warrant: the granting of a new trial. See,<br />
e.q., Commonwealth v. Rutledse, 356 <strong>Mass</strong>. 499 (1969). A<br />
recantation merits "serious consideration from the motion<br />
judge." Commonwealth v. Raymond, 424 <strong>Mass</strong>. 382, 397<br />
(1997). This Court's decisions dealing with recantations<br />
typically cite the prejudice standard governing new trial<br />
motions based on newly-discovered evidence. &e, e.4..<br />
z.; Commonwealth v. Grace, 397 <strong>Mass</strong>. 303, 306 (1986).<br />
2. Recantations in other jurisdictions.<br />
A recantation of trial testimony may cast serioua<br />
doubt on the justice of a conviction. Martin v. United<br />
26
States, 17 F.2d 973, 976 (5th Cir. 1927). Many<br />
jurisdictions have crafted standards specifically for<br />
evaluating new trial motiona based on them. The best<br />
known of these, the so-called Larrison test, puts its<br />
primary focus on determining whether the testimony given<br />
at trial was false. a Larrison v. United States, 24<br />
F.2d 8 2, 87-88 (7th Cir. 1 928). Most recantations cannot<br />
clear this hurdle, but in the rare case where the<br />
recantation i s deemed credible (and the testimony at<br />
trial thereby deemed false) , the prejudice requirement<br />
for granting relief is relaxed so that a movant need only<br />
show that "the jury might have reached a different<br />
conclusion" in order to obtain relief. United States v.<br />
Willis, 257 F.3d 636, 647 (6th Cir. 2001) (emohasis<br />
W) .33<br />
3. Conatitutional right to disclosure of<br />
exculpatory information.<br />
Under Bradv v. Marvland, 373 U.S. 83 (1963), and its<br />
progeny, a defendant is denied due process when the<br />
prosecution fails to disclose material, exculpatory<br />
information prior to trial. Commonwealth v. Healv,<br />
l3<br />
For other jurisdictions adopting some variant of the<br />
Larriaon teat. s, u.. United States v. Lofton, 233 F.3d 313, 318<br />
(qth Cir. 2000) : United States v. MeYexs, 484 F.2d 113, 116 (ja Cir.<br />
1973); HooPer v. state. 680 N.W.28 89, 94 (Minn. 2004); State v.<br />
w, 700 A.2d 161, 165 (Del. super. 1996); State v. Britt, 360<br />
S.E.2d 660. 664-665 (N.C. 1987); State v. Scrosains, 110 ID 380,<br />
384-385 (1985) ; Marshall v. State, 305 N.W.2d 838 (S.D. 1981) ;<br />
Y. Maeole, 617 P.Zd 820, 824 (Hawaii 1980).<br />
27
438 <strong>Mass</strong>. 672, 434-435 (2003). Two important features of<br />
the Bradv rule expand its scope beyond intentional<br />
nondisclosure by a malicious prosecutor. First, knowledge<br />
by any member of the prosecutorial team is imputed to the<br />
prosecutor. See, a, Kvles v. Whitlev, 419 U.S. 419,<br />
437 (1995); Commonwealth v. Martin, 427 <strong>Mass</strong>. 816, 823<br />
(1998). As this Court has noted, prosecutorial misconduct<br />
can include the "inept and 'bungling' performance of the<br />
police, which is attributed to the [prosecutor] ."<br />
Commonwealth v. Olszewski, 401 <strong>Mass</strong>. 749, 753 (1988).<br />
Second, there is no requirement of bad faith to establish<br />
a violation of due process. United States v. Aqurs, 427<br />
U+S. 37, 110 (1976); Bradv, 373 U.S. at 87-88 (violation<br />
does not turn on whether nondisclosure waa product "of<br />
guile"). Reversal is required if there is a "reasonable<br />
probability## that, had the material been disclosed, the<br />
result would have been different. United States v.<br />
Bacrlev, 473 U.S. 667, 682 (1985). The "question is not<br />
whether the defendant would . . . have received a different<br />
verdict," but rather whether the defendant received a<br />
fair trial. Kvles, 419 U.S. at 434.<br />
Under <strong>Mass</strong>achusetts law, the standard of prejudice<br />
required for relief depends on whether a specific request<br />
was made for the information. Commonwealth v. Tucceri,<br />
412 <strong>Mass</strong>. 401, 407 (1992); Commonwealth v. Gallarelli,<br />
28
399 <strong>Mass</strong>. 17, 21 n.5 (1987). In Gallarelli, the Court<br />
held that a request for all 'police reports and<br />
scientific reports" was sufficient to cover relevant<br />
laboratory reports. a. at 21-22. When the prosecutor<br />
fails to turn over exculpatory information which had been<br />
specifically requested, the court "must set aside the<br />
verdict unless it is sure that the error 'did not<br />
influence the jury or had but a very slight effect."'<br />
'Commonwealth v. Lykus, 451 <strong>Mass</strong>. 310, 326 (2008)<br />
4. Constitutional right to fair trial based<br />
on reliable evidence.<br />
A defendant's right to due process under the Fifth<br />
and Fourteenth Amendments protects him from conviction<br />
based on unreliable evidence. California v. Green, 399<br />
U.S. 149, 188 n.20 (1970). That due process guarantee may<br />
require a new trial based on newly-discovered evidence.<br />
In Cooqan v. McCauqhtry, 958 F.2d 793, 801 (7th Cir.<br />
1991), the court wrote:<br />
In some situations newly-discovered evidence<br />
is so compelling that it would be a violation<br />
of the fundamental fairness embodied in the<br />
Due Process Clause not to afford a defendant a<br />
new trial at which the evidence could be<br />
Considered.<br />
In the recantation context, fundamental fairness may<br />
require a new trial, even in the absence of bad faith.<br />
United States v. Younq, 17 F.3d 1201,1203 (9th Cir. 1994) .<br />
29
5. Standard of review.14<br />
A new trial motion is general1 committed to the<br />
discretion of the trial judge. Commonwealth v. Schand,<br />
420 <strong>Mass</strong>. 783, 787 (1995). If, however, the original<br />
trial was infectedwithprejudicial constitutional error,<br />
the judge has no discretion to deny the motion.<br />
Commonwealth v. Cowie, 404 <strong>Mass</strong>. 119, 123 (1989). In<br />
reviewing the denial of a new trial motion, an appellate<br />
court considers whether the motion judge committed a<br />
significant error of law or other abuse of discretion.<br />
Commonwealth v. Perkins, 450 <strong>Mass</strong>. 834, 845 (ZOOS). On<br />
appellate review, the judge's findings of fact after an<br />
evidentiary hearing will be aclcepted if supported by the<br />
record. Commonwealth v. Walker, 443 <strong>Mass</strong>. 213, 224<br />
(2005). The reviewing court may reject findings which are<br />
clearly erroneous. Commonwealth v. Cast, 407 <strong>Mass</strong>.<br />
891,897 (1990). Where the denial of a motion for new<br />
trial i s considered along with the direct appeal from a<br />
conviction for first degree murder, this Court must<br />
determine whether, under t4.G.L.c. 278, S33E, there is a<br />
substantial likelihood of a miscarriage of justice.<br />
Commonwealth v. Dubois, 451 <strong>Mass</strong>. 20, 30 (2008).<br />
C. Application of Law to Facts.<br />
14<br />
This standard of review applieEt to all of the issues<br />
raised by Greineder's motion for new trial.<br />
30
1. Rebeiro's trial testimony was false, and<br />
her recantation was credible.<br />
There can be no doubt that Rebeiro' s recantation was<br />
honest and reliable. She would not have volunteered her<br />
affidavit, exposing herself to professional embarrassment<br />
and potentially imperiling the conviction, unless it were<br />
true. Moreover, Rebeiro's recantation is strongly<br />
corroborated by Bodziak's affidavit, the catalyst<br />
prompting Rebeiro to change her tune. In sum, this Court<br />
should credit Rebeiro' s recantation and conclude that her<br />
trial testimony that Greineder's heel mark was adjacent<br />
to a drag mark leading to Ms. Greineder's body was false.<br />
2. Rebeiro's erroneous trial testimony<br />
seriously prejudiced the defense.<br />
The connection between Greineder' 6 alleged heel mark<br />
and the drag mark found near Ms. Greineder's body was a<br />
key part of the Commonwealth's case. The "heel mark" was<br />
discussed by the prosecutor in his opening, addressed at<br />
length by Rebeiro, and emphasized in the prosecutor's<br />
closing argument. The significance of this evidence was<br />
clear - if the jury believed Rebeiro' s uncontradicted<br />
testimony about Footprint #7. it could conclude that<br />
Greineder had dragged Ms. Greindex's body to its final<br />
resting place and thus, almost certainly, was her killer.<br />
The prosecutor also used this false testimony to<br />
undermine Greineder's credibility and suggest that he had<br />
31
concocted his testimony to fit the evidence.<br />
The defense did not offer any explanation of the<br />
"heel mark, " cross-examine Rebeiro about Footprint #7, or<br />
give the jury any reason to disbelieve her testimony.<br />
Defense counsel said nothing about Footprint #7 in<br />
closing argument, presumably because he had nothing to<br />
say. That evidence thus stood as an important, unrebutted<br />
piece of the Commonwealth's case. As the motion judge<br />
noted, this evidence was "significant" in light of the<br />
Commonwealth's contention, "persuasively dr[ivenl home<br />
to the jury,II that it was "strongly probative1' of<br />
Greineder's guilt. 8. 975-976, 979. Rebeiro's<br />
recantation, if available at trial, would have completely<br />
eviscerated the inculpatory quality of this unrebutted<br />
testimony.<br />
The recantation evidence would have been important<br />
for another reason as well. Much of the Commonwealth's<br />
case was based on the credibility of ita coterie of<br />
experts who testified, inter alia, about blood spatter,<br />
footprint, fiber, and DNA evidence. If the defense had<br />
been able to present Rebeiro's recantation to the jury,<br />
it would have had the probable effect of casting doubt on<br />
the Commonwealth's entire phalanx of experts.<br />
3. Greineder I s entitled tQ relief.<br />
a. Greineder is entitled to relief<br />
under the Larrison atandard.<br />
32
As noted above, many jurisdictions have adopted a<br />
legal standard for evaluating prejudice in reliable<br />
recantation cases that is moce generous than in other<br />
newly-discovered evidence cases. This Court should adopt<br />
a similar test. Under Larrison, there is no doubt that<br />
the jury might have reached a different conclusion had<br />
Rebeiro's recantation been presented so Greineder is<br />
clearly entitled to relief.<br />
b. Greineder is entitled to relief<br />
under federal constitutional law.<br />
The significance that the recanting witness was a<br />
government agent cannot be overstated. Under such<br />
circumstances, this Court should apply a Bradv-type<br />
analysis. That line of cases is specifically designed to<br />
deal with mistakes by a member of the prosecution team<br />
that affect the accuracy of the information presented to<br />
the jury at trial. Here, it was the malfeasance of the<br />
prosecution team itself that tainted the presentation of<br />
evidence to the jury, violating the defendant's right to<br />
a fair trial.I5 Under auch Circumstances, this Court<br />
should apply a "reasonable probability'' test in<br />
l5 COnSideK the following two scenarios: In the first,<br />
Rebeiro testifies that the footprint was that of a heel, while<br />
Lunbeknomst to the prosecutor) there is a prior affidavit authored<br />
by Rebeiro which indicates that the print was that of a toe, a<br />
document never turned over to the defendant in violation of w.<br />
Xn the second, as here, the conflicting affidavit is produced after<br />
trial. It would be truly anomalous if a defendant in the first<br />
scenario were entitled to a new trial, while the defendant in the<br />
second were denied any relief.<br />
33
determining whether the prejudice flowing from the<br />
erroneous testimony requires a new trial. Under that<br />
test, Greineder is clearly entitled to relief.lb<br />
c. Grelneder is entitled to relief<br />
under Gallarelli.<br />
Greineder's pre-trial motion for all scientific test<br />
results was allowed by agreement. Docket #14, E. 4/10/00<br />
at 5; 8. 24. Under Gallarelli, that request was<br />
sufficiently specific to encompass Rebeiro's accurate<br />
opinion, as revealed in her post-trial affidavit. The<br />
Commonwealth's failure to produce this exculpatory<br />
evidence resulted in a trial tainted by the presentation<br />
of false, unreliable expert testimony. This Court cannot<br />
be sure that such nondisclosure "did not influence the<br />
jury or had but a very slight effect," so Greineder is<br />
entitled to relief.<br />
d. Grelneder ia entitled to relief<br />
under the newly-discovered evidence<br />
standard .<br />
Even under the newly-discovered evidence standard,<br />
Judge Chernoff abused his discretion in denying relief.<br />
Given the centrality of this testimony to the<br />
Commonwealth's case, it cannot fairly be said that the<br />
erroneous evidence was not a "real factor" in the jury's<br />
16 In his Findinss, the motion judge noted that if "a<br />
strict due process standard of review" were applied, it "might well<br />
result in an order for a new trial." F1ndinq-B at 61 n.11, 8. 972.<br />
34
deliberations. Judge Chernoff is correct that " It1 he jury<br />
could have diacounted all the footprint evidence and<br />
still found beyond a reasonable doubt that the defendant<br />
killed his wife." &. 978. That, however, is not the test.<br />
Rather, the question is whether the admission Of<br />
critical, unrebutted expert testimony emphasized by the<br />
prosecutor in closing argument likely affected the jury's<br />
week-long deliberations. Under that legal standard,<br />
Greineder is clearly entitled to relief. As another court<br />
wrote in a similar context:<br />
The .. . expert's testimony was damning - and<br />
it was false.. . . [the defendant] has the right<br />
to be tried, insofar as possible, on the basis<br />
of true and correct evidence; to deny him this<br />
right is to deny him a fair trial.. . . IT] o<br />
allow a conviction to be based even in part on<br />
such manifestly inaccurate and prejudicial<br />
testimony ,.. would be a serious injustice.<br />
State v. Caldwell, 322 N.W.2d 574, 586 (Minn. 1982).<br />
VI. THE MOTION JUDGE ERRED IN DENYING GREINEDER'S<br />
MOTION FOR NEW TRIAL BASED UPON THE DELIBERATING<br />
JURY'S EXPOSURE TO EXTWEOUS INFORDdATION.<br />
A. Statement of Relevant Pacts.<br />
The specific facts relating to this claim, including<br />
the evidence adduced at a post-trial evidentiary hearing,<br />
are set forth at pp. 3-16 of Defendant's Post-Hearinq<br />
Memorandum of Law Resuectinq ExDoaure of Deliberating<br />
JUZY t o Extraneous Information. A. 738-751. Judge<br />
Chernoff denied the portion of Greineder's motion for new<br />
trial raising this claim by order dated May 5, 2006. A.<br />
35
773.<br />
B. Summary of Applicable Law.<br />
The requirement that a jury's verdict be based<br />
solely upon evidence presented in the courtroom is<br />
guaranteed by the Sixth and Fourteenth Amendments and<br />
Article XII. The exposure of a deliberating jury to<br />
specific information about the case which was not<br />
introduced into evidence in the courtroom undermines the<br />
fairness of a criminal trial. See Commnnwealth v. Cuffie,<br />
414 <strong>Mass</strong>. 632, 638 (1993 . Since Commonwealth v. Fidler,<br />
377 <strong>Mass</strong>. 192 (1979), it has been settled that the<br />
exposure of a deliberat ng jury to "extraneous matter"<br />
entitles a defendant to a new trial unless the<br />
Commonwealth proves beyond a reasonable doubt that the<br />
defendant was not prejudiced thereby.<br />
1. Jury experiment as extraneous information.<br />
An experiment conducted by the deliberating jury may<br />
improperly expose the jury to extraneous information.<br />
See Annotatipn, Protsrietv of Juror's Tests or Experiments<br />
in Jurv Room, 31 A.L.R. 4th 566, 593-597(1984) (collecting<br />
cases). This Court has equated experiments conducted in<br />
the jury room with receipt of outside information under<br />
the Fidler/CuffiP standard. See, e.q., Commonwealth v.<br />
Beauchame, 424 <strong>Mass</strong>. 682, 691 (1997). In one leading<br />
civil case, the Court a€firmed a grant of a new trial<br />
36
where the jury had experimented with the heel of a shoe<br />
in evidence by inserting a nail into it. Bruns v. Jordan<br />
Marsh Co., 305 <strong>Mass</strong>. 437 (1940).<br />
The line between a permissible examination of<br />
evidence on the one hand and an impermissible experiment<br />
on the other is often murky. Jurors are free to<br />
manipulate evidence, even taking an exhibit apart and<br />
putting it back together, to take a ”closer look” at it.<br />
&e, e.q., People v. Boqle, 41 Cal. App. 4’.h 770, I71<br />
(1995) (jurors used keys in evidence to unlock safe in<br />
evidence). Jurors may also use objects, even those not in<br />
evidence, to demonstrate a common sense principle ox to<br />
illustrate an argument. See, e.q., Gentrv v. State, 236<br />
Ga. App. 820, 823 (1999) (juror used a toy car and a<br />
coffee cup to replicate collision at issue).<br />
When jurors go beyond these acceptable means of<br />
evaluating evidence and conduct experiments using foreign<br />
materials, their acts become improper.17 In so doing,<br />
17 u, m, Miller v. Harvey, 566 F.2d 879, 881 L4‘”cir.<br />
1977) (juror bit another juror on the arm so jury could observe<br />
resulting bruisea and compare them to alleged human teeth marks<br />
identified in a photograph by a trial witness) ; United States v.<br />
u, 371 F. Supp. 361, 369 (D.S.C. 1971), Effd. 496 P.2d 861<br />
(4rh Cir. 1973) (use of adhesive tape by juror to test whether<br />
residue would be left on skin once it was applied and removed as<br />
argued by defendant); Carter v. state, 753 S.W.?d 432 (Tex. App.<br />
1988) (jury conducted experiment to determine whether defendant’s<br />
account of how liquid splashed when he fell was credible); Ex Parte<br />
Thomas, 666 So.2d 855 (Ala. 1995) (jurors used rope not in evidence<br />
to tie a juror‘s hands and conduct an experiment to resolve a<br />
disputed issue); United States v. Nevell, 28 F.3d 109(gLh Cir. 1994)<br />
(jury conducted an experiment with M k M‘s to test prosecution‘s<br />
theory of the case).<br />
37
they produce new evidence subject to neither screening by<br />
the trial judge nor testing via cross-examination,<br />
thereby exposing themselves to extraneous information.<br />
2. Prejudice.<br />
Once the motion yudge finds that a deliberating<br />
juror was exposed to extraneous matter, the burden shifts<br />
to the Commonwealth to prove beyond a reasonable doubt<br />
that the defendant was not prejudiced thereby.<br />
Commonwealth v. Kincaid, 444 <strong>Mass</strong>. 381, 386 (2005). This<br />
legal test is comparable to the harmless error standard<br />
applied to review of preserved constitutional error. See<br />
Chauman v. California, 386 U.S. 18, 24 (1967). In<br />
determining whether an error was harmless beyond a<br />
reasonable doubt, " [t] he essential question i s whether<br />
the error had, or might have had, an effect on the jury<br />
and whether the error contributed or might have<br />
contributed to the verdict." Commonwealth v. Molina, 439<br />
<strong>Mass</strong>. 206, 212 (2003). All doubts must be resolved in<br />
favor of the defendant. Commonwealth v. Vardinski, 438<br />
<strong>Mass</strong>. 444, 452-453 (2003).<br />
In the ordinary case, the court assesses prejudice<br />
by determining whether the exposure would have affected<br />
a hypothetical average jury. Fidler, 377 <strong>Mass</strong>. at 201.<br />
While the trial court ahould not seek to elicit testimony<br />
about the actual effect of extraneous information on the<br />
38
jury, if “a judge learns that a juror has, in fact, been<br />
influenced by extraneous information, there must be a new<br />
trial.“ Kincaid, 444 <strong>Mass</strong>. at 392.’’ The actual impact<br />
test has never been interpreted to allow the Commonwealth<br />
to meet its burden by showing that none of the<br />
deliberating jurors was actually affected. It is hard to<br />
imagine how the Commonwealth could ever prove that no<br />
juror was affected by extraneous information since Fidler<br />
prohibits eliciting testimony on that point, and it is<br />
inconceivable that all 12 jurors would independently<br />
volunteer such information absent inquiry.<br />
C. Application of Law to Facta.<br />
1. The banana experiment expoeed the jury to<br />
extraneous information.<br />
The experiment conducted by the jurors involved<br />
outside materials and exposed the jury to “specific facts<br />
not mentioned at trial concerning ... the matter in<br />
litigation.” Fidler, 377 <strong>Mass</strong>. at 200. Specifically, the<br />
experiment showed that the pattern of lines produced when<br />
the glove was moved across the aurface of a banana<br />
closely resembled the streak on Greineder‘ s jacket. There<br />
was nothing accidental about this experiment. The jury<br />
resorted to it only after its request for a millimeter<br />
18 This Court has also held that where the jury takes an<br />
active role in investigating a ease or learning facts outside those<br />
in evidence, prejudice is established as a matter of law. See, m,<br />
Fitzeatrick v. Allen, 410 Maaa. 791, 796 (1991); Markee v. Biaaetci,<br />
410 M ~ES. 785, 789 (1991).<br />
39
uler was denied. In conducting the experiment, the jury<br />
filled in a critical gap in the Comrnonwealth'a case. As<br />
the motion judge states, the jury effectively created its<br />
own "transfer exemplars." 8. 719. The jury clearly went<br />
beyond the evidence adduced in the courtroom in resolving<br />
a critical disputed factual issue.<br />
2. The Commonwealth did not prove the<br />
absence of prejudice.<br />
The Commonwealth did not meet ita busden of proving<br />
beyond a reasonable doubt that a hypothetical average<br />
jury would be unaffected by exposure to this extraneous<br />
information. Defense counsel and the defense expert had<br />
stressed the absence of quantitative proof or overlays<br />
linking the work gloves to Greineder's jacket. Denied<br />
access to a ruler with which to make its own quantitative<br />
assessment, the jury resorted to fabricating the<br />
equivalent of an overlay using a banana and compared its<br />
creation to the streak on the jacket. Armed with the<br />
results of its comparison, an average jury would be more<br />
likely to accept the Commonwealth's contention that the<br />
murderer's gloves had created the streak on Greineder's<br />
jacket, pointing to him as the perpetrator. The precise<br />
gap which the defense emphaaized in the Commonwealth's<br />
proof at trial was neatly filled in by the jury itself!<br />
The conclusion that an average jury would likely<br />
have been affected by this experiment is reinforced by<br />
40
consideration of the factors outlined in Fidler and its<br />
progeny. There was no immediate reprimand from another<br />
juror after the extraneous material was presented. On the<br />
contrary, many, if not all, of the jurors, looked at the<br />
mark on the banana, noted its similarity to the pattern<br />
on the gloves, and talked about it.<br />
Moreover, there was far from overwhelming evidence<br />
of guilt. There were no eyewitnesses to the crime nor<br />
inculpatory admissions. The jury deliberated for five<br />
days before reaching a verdict. There i s simply no way of<br />
knowing what led each of the 12 jurors to vote to<br />
convict. The Commonwealth cannot meet its burden of<br />
proving beyond a reasonable doubt that a hypothetical<br />
average jury would not have been affected by the<br />
introduction of directly inculpatory, extraneous<br />
information which filled an important gap in the<br />
Commonwealth's case and which Greineder had no<br />
opportunity to rebut ox challenge. The ruling of the<br />
motion judge to the contrary should be rejected.19<br />
The motion judge went beyond the hypothetical jury<br />
test and sought: to make findings regarding the actual<br />
impact of the banana experiment on the jury. Both that<br />
'' The motion judge was correct in observing that "although<br />
tying the gloves to Greineder was a significant part of the<br />
government's case, it was not so critical that the jury could not<br />
have convicted the defendant without i.t." &. 784. That, however, is<br />
not the applicable legal test!<br />
41
endeavor and the conclusions he reached were flawed. The<br />
tainting of even a single juror is sufficient to<br />
invalidate a verdict. Parker v, Gladden, 385 U.S. 363,<br />
366 (1966) (E curiam) ; Commonwealth v. Hunt, 392 <strong>Mass</strong>.<br />
28, 40 (1984). Here, there was no evidence about the<br />
impact of the banana experiment on eight of the 12<br />
deliberating jurors.2o Absent blind speculation, the<br />
court could not properly conclude that any or all of<br />
those eight jurors was actually unaffected.<br />
Among the jurors who did testify, there is ample<br />
evidence that it had an effect. Juror Salvi stated that<br />
the jurors “marveled” at the similarity between the<br />
bruise on the banana and the streak on the jacket. D.<br />
(2/24/06)/33. Juror vitzthum confirmed that all of the<br />
jurors saw the bruise on the banana and compared it to<br />
the jacket, that the bruise on the banana looked like the<br />
streak on the jacket, and that they discussed the bruise.<br />
E. (3/3/06)/10-16. Juror Barbera testified to the same<br />
effect, adding that there was discussion of the<br />
comparison among the jurors. a. at 21-22. During his<br />
recorded interview, conducted far closer to the time of<br />
trial than the evidentiary hearing, Juror Gieaiecke<br />
stated that the banana experiment was “one of those<br />
’’ Those eight jurors included the six jurors who did not<br />
testify and jurors Smith and Miller, who did not recall the banana<br />
experiment and gave no testimony regarding its e€Eect.<br />
42
moments" of insight, which "helped" the jury resolve the<br />
caae. A. 750. Accordingly, the motion judge's<br />
determination that "the banana experiment did not<br />
in€luence the jury' a deliberations or impact their<br />
verdict," &. 786. must be rejected. Greineder is clearly<br />
entitled to relief. 21<br />
VII. GREINEDER'S TRIAL COUNSEL WAS CONSTITUTIONALLY<br />
INEFFECTIVE IN FAILING TO EXCLUDE OR CHALLENGE<br />
SCIENTIFICALLY UNRELIABLE DNA RESULTS.<br />
A. Statement Of Relevant Facts.<br />
Following Greineder's conviction, the DNA evidence<br />
and discovery was reviewed by Arthur J. Eisenberg, Ph.D.,<br />
a forensic biologist. Dr. Eisenberg's detailed findings<br />
and analysis are set forth in his affidavit and exhibits.<br />
A_. 368. He concluded that Cellmark's reported results on<br />
the knife and brown work gloves were "scientifically<br />
unreliable," "biased, " and should have been deemed<br />
"inconclusive." A. 315-317 et seq.<br />
The DNA evidence was also reviewed post-trial by<br />
Charles M. Brenner, Ph.D., a forensic mathematician. Dc.<br />
Brenner's findings and analysia are set forth in his<br />
affidavit. 8. 258. He concluded that Cellmark violated<br />
elementary statistical principles and employed unfairly<br />
21<br />
Relief is also warranted in this case under Markee and<br />
Fitmatrick since there was "active juror participation in an effort<br />
to resolve key issues by resort to material not in evidence."<br />
Accordingly, prejudice is irrebuttably presumed, and Gseineder is<br />
entitled to a new trial as a matter of law.<br />
43
iased and scientifically invalid methodology.<br />
The specific facts underlying this claim, including<br />
evidence presented at the post-trial evidentiary hearing<br />
and in a number of post-trial affidavits, are set forth<br />
at pp. 16-41 of the Memorandum of Law in Sumort of<br />
Defendant’s Motion for New Trial (A. 144-168)and at pp.<br />
2-8 of Defendant’s Post-Hearins Memorandum of Law<br />
ResDectins Ineffective Assistance Provided bv Trial<br />
Counsel in Failins to Challenqe Commonwealth‘s DNA and<br />
Footprint Evidence (8. 852-858).<br />
B. Sununary of Applicable Law.<br />
1. Exclusion of unreliable scientific<br />
evidence.<br />
Under Commonwealth v. Laniqan and its progeny, the<br />
trial judge serves as a “gatekeeper“ in making a<br />
“preliminary assessment” of whether proffered scientific<br />
evidence is sufficiently reliable to be admitted at<br />
trial. The gatekeeper role encompasses, not only the<br />
underlying scientific principles and methodology, but<br />
also “whether the testing was properly performed. ”<br />
Commonwealth v. Patterson, 445 <strong>Mass</strong>. 626, 647-648 (2005).<br />
Novel applications of an otherwise reliable technique<br />
“must be independently tested against the Laniaan-Daubert<br />
standard.” a. at 655. Scientifically unreliable evidence<br />
must be excluded “because evidence of this character has<br />
too great a potential. for affecting a jury‘s judgment.“<br />
44
Commonwealth v. Curnin, 409 <strong>Mass</strong>. 218, 222 n.7 (1991).<br />
The admission of unreliable evidence may violate a<br />
defendant's constitutional right to due proceas under the<br />
Fifth and Fourteenth Amendments and Article XII. a,<br />
e.q., Manson v. Brathwaite, 432 U.S. 38, 112 (1977);<br />
Commonwealth v. Johnson, 420 <strong>Mass</strong>. 458, 461-463 (1995).<br />
2. Ineffective aaaiBtance of<br />
Every criminal defendant is guasanteed effective<br />
assistance of counsel by the Sixth and Fourteenth<br />
Amendments and Article XII. Stricklandv. Washinston, 466<br />
U.S. 668 (1984) ; Commonwealth v. Martinez, 425 <strong>Mass</strong>. 382,<br />
387 (1997) I Both the federal and state courts have<br />
delineated a two-pronged test for determining whether a<br />
constitutional violation of this right: has occurred. The<br />
first prong is virtually identical - whether counsel's<br />
performance was seriously deficient, measured against an<br />
objective standard of reasonableness. Wiaqins v. Smith,<br />
539 U.S. 510, 521 (2003); -, 366<br />
<strong>Mass</strong>. 89, 96-99 (1974).<br />
The prejudice prong has been enunciated slightly<br />
differently by the federal and <strong>Mass</strong>achusetts state<br />
courts. Under federal law, the defendant must show that<br />
there is a reasonable probability that but for counsel's<br />
22<br />
This summary of relevant law applies to all of<br />
Greineder's ineffective assistance claims.<br />
45
errors, the outcome would have been different.<br />
Strickland, 466 U.S. at 694. Under Article XII:<br />
Our test is whether defense counsel's amission<br />
"likely deprived the defendant of an otherwise<br />
available, subatantial ground of defense"<br />
[citinq Saferianl or whether "better work<br />
might have accomplished something material €or<br />
the defense," [citinq Commonwealth v.<br />
Satterfield, 373 <strong>Mass</strong>. 1 09, 115 (1977)l.<br />
Commonwealth v, Curtis, 417 <strong>Mass</strong>. 19, 625 n.4 (1994).<br />
In adjudicating an ineffective assistance claim, a<br />
reviewing court will give broad deference to strategic<br />
decisions made by trial counsel. Such a decision amounts<br />
to constitutional error only if it was manifestly<br />
unreasonable when made. Commonwealth v. Acevedo, 446<br />
<strong>Mass</strong>. 435, 442 (2006).<br />
The failure of trial counsel to file a pretrial.<br />
motion may constitute ineffective assistance. See, e.q.,<br />
Kimmelman v. Morrison, 477 U.S. 365, 385-386 (1986)<br />
(motion to suppress); Commonwealth v. Beliard, 443 <strong>Mass</strong>.<br />
79, 90-91 (2004) (motion to exclude scientific evidence).<br />
Defense counsel has a duty to seek to exclude<br />
inadmissible evidence which is harmful to the defendant'a<br />
case. E.q. Commonwealth v. Peters, 429 <strong>Mass</strong>. 22, 31-33<br />
(1999). In order to make out a claim of ineffective<br />
assistance based on counsel's failure to file a motion,<br />
the defendant has to show that the motion properly would<br />
have been allowed. Beliard, 443 <strong>Mass</strong>. at 91.<br />
46
In evaluating a claim of ineffective assistance in<br />
a capital case, this Court considers whether defense<br />
counsel erred and, if so, whether it likely influenced<br />
the jury's conclusion. Commonwealth v. Gomez, 450 <strong>Mass</strong>.<br />
704, 712 (2008). Where such a claim is considered along<br />
with the defendant's direct appeal, the Court reviews the<br />
claim under the substantial likelihood of a miscarriage<br />
of justice standard enonciated in M.G.L.c. 278, 533E. a<br />
standard more favorable to the defendant than the<br />
constitutional one. Gomez, 450 <strong>Mass</strong>. at 711.<br />
C. Application of Law to Facts,<br />
1. Defense counsel blundered in failing to<br />
move to exclude the Commonwealth's<br />
scientifically Unreliable DNA results.<br />
Cellmark's DNA test results, purporting to link<br />
Gseineder to the knife and brown work gloves used by Ms.<br />
Greineder's killer, provided powerful support for his<br />
conviction. Faced with auch obviously damaging evidence,<br />
it was incumbent upon defense counsel to see to exclude<br />
it at trial, if possible. Counsel had several compelling<br />
arguments available to keep Cellmark's test results out.<br />
His experts had told him that Cellmark's work in this<br />
case waa grossly deficient in numerous respects and<br />
stretched the technology beyond the point of scientific<br />
reliability. He knew that Cellmark had failed to validate<br />
allelic calls below 100 RFUs, that necessary controls<br />
47
were missing, that Cellmark had fiddled with the results,<br />
and that its statistical analysis was improper. He knew<br />
of no published court decision endorsing the kind of LCN<br />
work Cellmask had performed.<br />
The exhaustive analysis carried out by Drs.<br />
Eisenberg and Brenner conclusively established the<br />
scientific invalidity of Cellmark' 8 work and the<br />
unreliability of its test results. Dr. Eisenberg showed<br />
that Cellmark's interpretation of LCN DNA mixtures at an<br />
RFU peak detection threshold below 100 was unreliable,<br />
unscientific, improperly validated, and unfairly biased<br />
against Greineder. Indeed, Cellmark's approach was "the<br />
antithesis of proper scientific practice." 6. 434.<br />
The unreliability of Cellmark's test results also<br />
permeated the statistical analysis presented to the jury.<br />
As Dr . Brenner explained in his uncontroverted affidavit,<br />
Cellmark' 6 statistical analysis "violated basic<br />
scientific principles" and was "ecientifically invalid. "<br />
A. 266, 270. There was "no objective way to quantify<br />
accurately the random match probability on the right-hand<br />
work glove and other pieces of evidence tested by<br />
Cellmark. " a.<br />
None of the justifications offered by Mr. Murphy for<br />
failing to file a Lanisan motion to exclude Cellmark's<br />
48
DNA test results withstands scrutiny.’’ First, Murphy<br />
testified that he believed that a motion to exclude<br />
Cellmark’s results as scientifically unreliable was<br />
”unlikely to be successful .” E. (8/14/06) /131.. Yet baaed<br />
upon his o m knowledge of Cellmark’s seriously-flawed<br />
work in this case, that prediction was utterly baseless.<br />
Murphy’s experts were sharply critical of Cellmark’s work<br />
and advised him that Cellmark had engaged in improper<br />
analysis and bad science. Murphy knew that Cellmark had<br />
not validated its use of an RFU threshold of 40, which<br />
was unprecedented and unjustifiable.<br />
Under these circumstances, Murphy had ample reason<br />
to believe that a motion to exclude cellmark’s test<br />
results was meritorious and would be allowed by a fair<br />
judge. At the very least, all allelic calls by Cellmark<br />
based upon peaks below 100 RFUS were ripe for exclusion.<br />
Clearly, the filing of a Laniaan motion would not have<br />
been an exercise in futility, and Murphy’s belief to the<br />
contrary was manifestly unreasonable.<br />
Second, Murphy testified that even if he had<br />
eucceeded in excluding all allelic calls under 100 RFUs,<br />
the jury still would have heard DNA results that<br />
“conclusively linked“ the right-hand work glove to<br />
23 Mr. Murphy’s credibility is not in dispute. This Court<br />
is in as good a position as the motion judge to assess the<br />
reasonableness of his decisions.<br />
49
Greineder based solely on peaks above 100 RFUs. 'Tr.<br />
(9/13/06) /79-80. According to Dr. Eisenberg, Murphy is<br />
wrong. Virtually all. of the peaks relied upon by Cellmark<br />
to associate Dirk Greineder with the DNA recovered from<br />
the key three pieces of evidence were less than 100 RFUs.<br />
E. 685-686. With respect to the right-hand work glove<br />
specifically mentioned by Murphy, Dr. Eisenberg reviewed<br />
Cellmark's results locus-by-locus, concluding that "the<br />
only scientifically justifiable conclusion that can be<br />
reported is that Mabel Greineder must not be excluded as<br />
a potential contributor.. .'I and that the results over 100<br />
RFUs do not implicate Dirk Greineder at all.. _A. 686-689.<br />
Murphy's third excuse was that such a motion would<br />
give the Commonwealth and its witnesses a helpful preview<br />
of the defense Murphy was planning to spring at trial.<br />
Yet, he failed to challenge the scientific reliability of<br />
Cellmark's testing before the jury. In cross-examining<br />
Dr. Cotton, Murphy did not ask her about Cellmark's lack<br />
.of validation studies for calling allelic peaks and DNA<br />
mixtures at less than 100 RFUs, its lack of specific<br />
criteria for lowering the RFU threshold from 100 to 40,<br />
its lack of substrate controls, or its flawed statistical<br />
analysis. Accordingly, filing a Lanisan motion<br />
challenging the admissibility of Cellmark's DNA test<br />
results would not have revealed Murphy' 6 trial strategy.<br />
50
In any event, if filing such a motion would have led to<br />
the exclusion of Cellmark's test results, any clues about<br />
how defense counsel was planning to combat those results<br />
at trial would be rendered academic.<br />
Fourth, Murphytestified that a successful motion to<br />
exclude Cellmark's allelic calls under 100 RFUs would<br />
have undermined his strategy of suggesting that a third<br />
person was present at the scene of Ms. Greineder's death.<br />
Indeed, Murphy opined, the exclusion of such allelic<br />
calls would have "largely eliminated the stranger DNA<br />
argument. . , ." E. (9/13/06) /79. There are several<br />
critical flaws in Murphy's analysis. As Dr. Eisenberg<br />
pointed out, the defense failed at trial to identify a<br />
significant number of "stranger alleles" on any of the<br />
three key items of evidence. Only one such allele under<br />
100 RFUs was identified on each item. A. 690. Moreover,<br />
as Murphy conceded, z. (9/13/06)/87, the defense could<br />
have presented its "stranger allele" argument based<br />
entirely upon peaka found on Ms. Greineder' s blue gloves,<br />
all in excess of 100 RFUs.<br />
On any rational. assessment of the case, Murphy's<br />
planned "stranger allele" defense, relying upon a<br />
smattering of alleles to suggest that a third person may<br />
have been present at the scene, paled in comparison to<br />
highly-incriminating evidence linking Greineder's DNA to<br />
51
the knife and brown work gloves. Murphy acknowledged that<br />
there were "far fewer alleles attributed by the defense<br />
to a stranger than there were alleles attributed by the<br />
prosecution to Dx. Greineder" on those key items of<br />
evidence. a. at 88. Even if the jury believed that a<br />
third person may have been present, that would not have<br />
exculpated Greineder. Yet if the defense had successfully<br />
moved to exclude Cellmark's low-RFU, inculpatory results<br />
on the knife and brown work gloves, there would have been<br />
no provable connection between Greineder and those pieces<br />
of evidence, gravely weakening the Commonwealth's case.<br />
In sum, anything the defense would lose by forfeiting its<br />
ability to rely on a handful of low-RPU allelic calls was<br />
vastly outweighed by what it would have gained by<br />
eliminating all such calls at trial.<br />
Finally, Murphy testified that he didn't retain an<br />
expert in DNA statistics or challenge the admissibility<br />
of Cellmark's test results on that basis because he<br />
believed that any statistical calculation would have<br />
inculpated Greineder. D. (8/14/06)/158. Yet by not<br />
bothering to retain an expert, Murphy never learned that<br />
Cellmark's statistical analysis wa8 "scientifically<br />
invalid." &. 270. If Dr. Brenner is correct (and the<br />
Commonwealth has not presented any contravening<br />
evidence) , Cellmark's test results would have been<br />
52
subject to exclusion on that ground as well, and Murphy's<br />
decision to forego filing a Lanisan motion was manifestly<br />
unreasonable.<br />
In denying Greineder's motion for a new trial, Judge<br />
Chernoff stated: " [TI his Court, in its discretion, would<br />
most likely have rejected a Lanisan challenge to<br />
Cellmark'a test results in this case, despite the serioua<br />
issues raised by Dr. Eisenberg." 8. 965." Based on the<br />
record before him, Judge Chernoff's conclusion was<br />
clearly erroneous as a matter of law. If Dr. Eisenberg i s<br />
correct in his analysis, Cellmark's work in this case was<br />
scientifically invalid and unreliable.25 Under Lanisan<br />
and its progeny, a motion to exclude such junk science<br />
would properly have been allowed.2c<br />
Judge Chernoff's conclusion that Murphy's decision<br />
24<br />
Judge Chernoff does not appear to question Dr.<br />
Eisenberg's credibility or doubt his conclusions. Since Judge<br />
Chernoff denied Greineder'a motion to call ar. Eisenbery as a<br />
witness at the evidentiary hearing, this Court is in as good a<br />
position as Judge Chernoff to consider the substance of Dr.<br />
Eiaenberg's affidavies, as well as the aEfidavit of Dr, Brenner and<br />
those proffered by the Commonwealth.<br />
25 This Court's decision in Commonwealth v. Gaynor, 443<br />
<strong>Mass</strong>. 245, 263-270 (2005) is not to the contrary. In Gavnor, "only<br />
teat results based on a single source of DNA" or results yielding<br />
"strong evidence of a primary contributor" were used. a. at 251.<br />
Hsre, by contrast, cellmark interpreted LCN mixtures containing<br />
extremely weak signals from a putative secondary contributor,<br />
stretching DNA technology well beyond validated. reliable limits.<br />
26 This Court's decision in Patterson, 445 <strong>Mass</strong>. at 655.<br />
refusing to extend fingerprint analysis methodology to authorize the<br />
admission of fingerprint analysis based on a composite of three<br />
partial fingerprints, is directly on point. Here, as there, the<br />
Commonwealth's experts extended acceptable techniques beyond the<br />
point of demonstrated reliability.<br />
53
to eschew a motion challenging the admissibility of<br />
Cellmark's test results was tactically defensible is<br />
beyond the pale. Thia evidence was devastating to the<br />
defense, and none of Murphy's proffered justifications<br />
passes muster. Any reasonable lawyer faced with the<br />
choice of trying to exclude this highly inculpatory<br />
evidence or making the best of it would choose the former<br />
over the latter. Any other choice, viewed in foresight or<br />
in hindsight, would be manifestly unreasonable.<br />
2. Defense counsel blundered in failing to<br />
challenge the DNA evidence at trial.<br />
Having not even tried to exclude Cellmark's<br />
inculpatory DNA test results, Murphy compounded that<br />
error by failing to challenge that evidence before the<br />
jury. The forensic scientist who was supposed to<br />
spearhead the DNA defense, Dr. Davis, was jettisoned by<br />
trial counsel and never replaced. Instead, Murphy relied<br />
upon Professor Krane, who was not a forensic scientist<br />
and had been retained only just before trial. Krane had<br />
never done forensic testing, utilized the relevant<br />
software or hardware, or reviewed Cellmark's validation<br />
studies. He was thus in no position to critique<br />
Cellmark's work and didn't even try to do so. To make<br />
matters worse, the defense failed to challenge Cellmark's<br />
statistical analysis. As a result, Cellmark's<br />
scientifically unreliable, yet highly inculpatory, test<br />
54
esults were effectively unchallenged at trial.<br />
Trial counsel's alternative plan to address those<br />
results was utterly lame, hence manifestly unreasonable.<br />
Since Dr. Davis wasn't called as a witneas, the<br />
electropherograms she had prepared to illustrate the<br />
"stranger allele defense" were excluded, and the defense<br />
fell Plat. Taylor's DNA experiments illustrating<br />
secondary DNA transfer were also excluded, so that<br />
defense theory was significantly weakened as well.<br />
Counsel's decision to pin his client's fate on<br />
inadmissible exhibits and experiments, while foregoing a<br />
powerful attack upon the Commonwealth's most<br />
incriminating evidence, cannot be defended under any<br />
standard of review.<br />
Judge Chernoff's justifications for Murphy's failure<br />
to retain a substitute for Dr. Davis and a statistical<br />
expert to testify at trial are not supported by the<br />
record and should be rejected. The motion judge says it<br />
was reasonable for Murphy to eschew a continuance based<br />
upon his fear that Greineder's daughter, Kirsten, would<br />
refuse to attend a trial held after her August wedding.<br />
A. 968. Yet Murphy never asked Kirsten if she would<br />
attend trial if a continuance were necessary, so his<br />
fears were entirely speculative, hence unreasonable.<br />
Judge Chernoff concluded that Murphy's decision not<br />
55
to retain a statistical expert was not manifestly<br />
unreasonable "given that the DNA results were only one of<br />
numeroua pieces of incriminating evidence in the case<br />
against the defendant." 8. 968. That i s hardly a valid<br />
excuse €or failing to challenge the most incriminating<br />
evidence in the case. Murphy's negligence was a clear<br />
abdication of his responsibilities to his client.<br />
3. Greineder wa8 prejudiced by defense<br />
counsel's blundera.<br />
The admission of Cellmark's DNA test results at<br />
trial contributed significantly to Greineder's<br />
conviction. The Commonwealth's circumstantial case<br />
depended largely upon forensic evidence, particularly<br />
DNA. Creineder is entitled to relief i f a pretrial motion<br />
to exclude at least a substantial portion of those<br />
results would have been meritorious. Be is also entitled<br />
to relief if Murphy's failure to challenge the DNA test<br />
results at trial deprived him of a substantial defense.<br />
Assessing the appropriate outcome of a Lanisan<br />
motion at this juncture requires the Court to consider<br />
and weigh the affidavits filed by Dr. Eisenberg and Dr.<br />
Bcenner on one hand and those filed by Dz. Cotton and Ms.<br />
Sgueglia on the other. Since the motion judge refused to<br />
hear live expert testimony, this Court is in as good a<br />
position as the motion judge to make that assessment. Dr.<br />
Eisenberg's devastating critique of Cellmark's work<br />
56
emains unrebutted, and Dr. Brenner's critique of<br />
Cellmark's statistical analysis hasn't been addressed at<br />
all. Accordingly, this Court should conclude that a<br />
Lanisan motion to exclude all of Cellmark's inculpatory<br />
DNA test results (or at least those relying on allelic<br />
calls based on peaks under 100 RFUs) would properly have<br />
been allowed, as would a motion to exclude Cellmark's<br />
statistical analysis of those results.<br />
This Court should also conclude that Greineder was<br />
prejudiced by Murphy' a failure to challenge Cellmark's<br />
test results before the jury. Cellmark's testing was<br />
highly vulnerable to attack, but auch an attack never<br />
took place. Clearly, the defendant wa6 "likely deprived<br />
... of an otherwise available, substantial ground of<br />
defense." Commonwealth v. Saferian, 366 <strong>Mass</strong>. at 96,<br />
Surely, "better work might have accomplished something<br />
material for the defense." Commonwealth v. Satterfield,<br />
373 <strong>Mass</strong>. at 115. Greineder's constitutional right to<br />
effective assistance of counsel was violated, and he is<br />
entitled to relief.<br />
VIII. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO<br />
FILE A MERITORIOUS MOTION TO SUPPRESS THE<br />
NAILS RECEIPT.<br />
A. Statement of Relevant Facta.<br />
The facts relevant to this claim are set forth at<br />
pp. 77-80 of the Memorandum of Law in Support of<br />
57
Defendant's Motion for New Trial, _A. 204-207, and at pp.<br />
6-10 of Defendant's Post-Hearinq Memorandum of Law<br />
Resaectins Ineffective Assistance of Counsel Claims<br />
Unrelated to Exnert Testimony, 8. 796-800.<br />
B. Summary of Applicable Law.<br />
Under the Fourth Amendment and Article XIV, search<br />
warrants must describe the articles to be seized with<br />
particularity. Commonwealth v. Cefalo, 381 <strong>Mass</strong>. 319<br />
(1980); United States v. Ferreras, 192 F.3d 5, 10 (1st<br />
Cir. 1999) + "The uniformly applied rule i s that a search<br />
conducted pursuant to a warrant that fails to conform to<br />
the particularity requirement of the Fourth Amendment is<br />
unconstitutional." <strong>Mass</strong>achusetts v. Sheuuard, 468 U.S.<br />
981, 988 n. 5 (1984). If a warrant lacks specificity, all<br />
the fruits of the search must be suppressed. Commonwealth<br />
v, Rutkowski, 406 <strong>Mass</strong>. 673, 674-675 (1990) ,"<br />
C. Application of Law to Facts.<br />
1. The seizure of the nails receipt was<br />
unconstitutional.<br />
The search warrant was an impermissible general<br />
warrant. Through this device, the Commonwealth took a<br />
host of materials from Greineder's home, hoping that<br />
further investigation might render them useful. This is<br />
27<br />
A warrant that lacks a specific description of the items<br />
eo be seized may still pass muater if accompanied by an affidavit<br />
containing a specific description of those items. See Commonwealth<br />
v. Sheward, 394 <strong>Mass</strong>. 381, 390 (1985).<br />
58
precisely what the Constitution prohibits. While a<br />
general warrant may be cured by an affidavit that<br />
provides sufficient specificity, that principle does not<br />
apply to the seizure of the nails receipt because the<br />
nails receipt was not mentioned in the affidavit.<br />
Accordingly, the nails receipt was subject to suppression<br />
as the fruit of an unlawPul general warrant.28<br />
2. The motion judge's ruling waa erroneou8.<br />
In denying Greineder's motion for new trial, the<br />
motion judge clearly erred in opining that even if the<br />
nails receipt were suppressed, the Commonwealth would<br />
have been able to present testimony by the seizing<br />
officers as to its contents. The essence of the<br />
exclusionary rule is that neither the object of an<br />
illegal seizure, nor the fruits thereof, may be<br />
introduced at trial against a defendant. Manw v.<br />
-, 367 U.S. 643, 654-656 (1961); Commonwealth v.<br />
Blood, 400 <strong>Mass</strong>. 61, 77 (1987); 6 W.R. LaFave, Search and<br />
Seizure, 511.4, at 255 n.1 (4th ed. 2004) (evidence to be<br />
18<br />
It is not entirely clear whether the trial court ruled<br />
that the nails receipt waB admiasible OK failed to rule on the<br />
question. FOT present purposea. it does not matter. Either the trial<br />
court did not rule on the issue, in which case defense counsel was<br />
constitutionally ineffective in failing to present a suppression<br />
argument prior to admission of the nails receipt. or it did rule on<br />
the issue, in which case that ruling was reversible error. Either<br />
way, Greineder is entitled to relief from a conviction based in part<br />
upon an unconstitutionally-seized piece of evidence. As the<br />
prosecutor argued in his closing, this was "important" evidence that<br />
provided a specific, easy-to-understand link between the defendant<br />
and the murder weapon. E. 25/89-90.<br />
59
suppressed includes "not only the physical evidence<br />
discovered but also . . , testimony about its discovery").<br />
The motion judge's position effectively eviscerates the<br />
exclusionary rule.<br />
3. Counsel's failure to move to suppress was<br />
prejudicial.<br />
There is a reasonable likelihood that the verdict<br />
would have been different if the nails receipt had been<br />
suppressed. The receipt played an important part in the<br />
Commonwealth's circumstantial case, seeking to tie<br />
Greineder to a hammer which may have been used in the<br />
murder. While there was certainly other evidence<br />
presented at trial, none of it was overwhelming, and<br />
there is no way to determine what tipped the balance<br />
towards a guilty verdict<br />
IX. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO FILE<br />
A MERITORIOUS MOTION TO SUPPRESS THE FRUITS OF A<br />
GEARCH OF GREINEDER'S TOYOTA AVALON.<br />
A. Statement of Relevant Facts.<br />
The facts relevant to this claim are set forth<br />
at pp. 85-88 of the Memorandum of Law in Support of<br />
Defendant's Motion for New Trial, A. 212-215, and pp. 16-<br />
21 of Defendant'a Post-Hearinq Memorandum of Law<br />
Resaectins Ineffective Assistance pf Counsel Claims<br />
Unrelated to Expert Testimony. A. 806-811.<br />
B. Summary of Applicable Law.<br />
1. Scope of a residential search warrant.<br />
60
A search warrant for a residence covers vehicles<br />
found within the curtilage of the residence but not those<br />
outside. Commonwealth v. Mcdarthv, 428 <strong>Mass</strong>. 871, 873<br />
(1999). In -, 392 <strong>Mass</strong>. 45, 48<br />
(19841, this Court held that a private driveway adjacent<br />
to a home was not within the curtilage. Therefore, a<br />
vehicle parked in the driveway was outside the curtilage.<br />
2, Limited exception to warrant requirement<br />
for automobile searches.<br />
Under both the Fourth Amendment and Article XIV,<br />
police may not search an automobile without a warrant<br />
unless they can make a showing of probable cause and<br />
exigent circumstances. The Commonwealth must show that<br />
there is probable cause that the automobile contains<br />
contraband or evidence of a crime. &g Carroll v. United<br />
States, 267 U.S. 132 (1925); Commonwealth v. Ortiz, 376<br />
<strong>Mass</strong>. 349, 354 (1978). The exigent circumstances<br />
requirement is met only when it is "impracticable" for a<br />
warrant to be obtained. Commonwealth v. Alvarado, 420<br />
<strong>Mass</strong>. 542, 554 (1995).<br />
C. Application of Law to Facts.<br />
1. The search of the Toyota Avalon was<br />
unlawful.<br />
Greineder's car was parked in his driveway, which<br />
was not within the curtilage of the house. As in Simmons,<br />
the driveway was openly visible from the public road and<br />
61
was the normal means of access to the house. There was no<br />
gate separating the driveway from the public road; there<br />
were no trees, fence or shrubbery shielding the driveway<br />
from the public road; and there were no "No Trespassing"<br />
signs posted. See Simmons, 392 <strong>Mass</strong>. at 47. Accordingly,<br />
the search warrant for the house did not authorize a<br />
search of the car.29 As the motion judge correctly<br />
concluded, 8. 951, a motion to suppress the evidence<br />
obtained as a result of the search of the Avalon would<br />
have been meritorious.<br />
2. counsel was deficient in failing to f ile<br />
a motion to euppreas.<br />
Once Detective McDermott testified that the towel<br />
she saw in the Avalon was not the Ritz-Carlton towel,<br />
defense counsel should have moved to suppress the fruits<br />
of the search of the Avalon and to strike her testimony.<br />
Counsel claims he had hoped Mcnermott's testimony would<br />
be helpful in corroborating Greineder's story. But once.<br />
it was clear that McDermott's testimony about the search<br />
was harmful to the defense, counsel's failure to move to<br />
suppress and strike was grossly negligent. Under the<br />
29 While automobile searches axe often performed without a<br />
warrant under the "automobile exception," the prosecution muat<br />
establish that the officers had probable cause to believe that there<br />
was contraband or evidence in the car and chat there were exigent<br />
circumstances that made obtaining a warrant impracticable. Here,<br />
neither requirement was met. There was no reason to believe that<br />
there was anything relevant to the alleged murder in the car, as the<br />
car had not been at the Bcene and had no known connection to the<br />
crime. Moreover, there were no exigent circumstances justifying a<br />
warrantless aearch.<br />
62
circumatances, the court could properly have entertained<br />
a motion to auppreas during trial.30 There was no<br />
strategic reason not to file such a motion. By his own<br />
admission, counsel simply failed to consider doing so. As<br />
in Wiqqins v. Smith, 539 U.S. 510, 534 (2003), this<br />
failure !'was the result of inattention, not reasoned<br />
strategic judgment. 'I<br />
3. The motion judge's reasoning was flawed.<br />
The motion judge's decision rejecting this claim<br />
rested on a faulty premise - that defense counsel's<br />
failure to move to suppress the evidence was a<br />
"deliberate'l decision. 8. 951. However, counsel testified<br />
that he did not consider moving to suppress and strike<br />
the testimony in the middle of trial. D. (5/30/06)/28.<br />
Therefore, the court's conclusion that this was a<br />
strategic decision was simply erroneous. In any event,<br />
any such decision would have been manifestly unreasonable<br />
once the damaging nature of Detective McDermott's<br />
testimony became clear.<br />
4. Counsel's failure to move to suppress was<br />
prejudicial.<br />
There is a reasonable likelihood that the verdict<br />
'" While motions to suppress are generally required to be<br />
filed prior to trial. there is an exception for a motion to suppress<br />
evidence chat counsel could not anticipate would be introduced at<br />
trial. See, m, Commonwealth v. Carter, 39 Masa. App. Ct. 439,<br />
440-441 (1995); Commonwealth v. watkins, 33 MaSS. App. Ct. 7, 13 n.6<br />
(1992); Blumenson, Fisher, & Kanstroom, 2 Maasachusetts Criminal<br />
Practice 515.2D (1998 & 2001 Supp.). In this instance. defense<br />
counsel was surprised by MCDeKmOtt'S trial testimony.<br />
67
would have been different had the evidence regarding the<br />
towel been suppressed. The Commonwealth's case was based<br />
entirely on circumstantial evidence, and Greineder's<br />
testimony about the towel was the linchpin of the DNA<br />
transfer theory presented by the defense at trial.<br />
Testimony by Detective McDermott that the towel produced<br />
by Greineder was not the one observed in Greineder's<br />
vehicle during the search devastated Greineder's<br />
credibility by making him appear dishonest. Further, it<br />
completely undermined the defense's DNA transfer theory,<br />
making it look more like a concoction supported by<br />
fabricated evidence than a reasonable explanation of the<br />
otherwise-damning DNA test results. Greineder suffered<br />
substantial prejudice and i s entitled to relief.<br />
X. THE CUMULATIVE ERRORS JUSTIFY REVERSAL OF<br />
GREINEDER'S CONVICTION.<br />
A. Summary of Applicable Law.<br />
Under M.G.L.c. 278, 533E, this Court must consider<br />
"whether there was an error in the course of the trial<br />
(by defense counsel, the prosecutor, or the judge) 'I that<br />
creates a "substantial likelihood of a miscarriage of<br />
justice." Commonwealth v. Wrisht, 411 Maso. 678, 681<br />
(1992). In examining the record, the Court may take into<br />
account the combined prejudicial effects of individual<br />
errors. a, u, Commonwealth v. Baker, 440 <strong>Mass</strong>. at<br />
519. Similarly, a violation of the federal right to due<br />
64
process can arise from a combination of circumstances<br />
which individually might not warrant relief. United<br />
States v. SamDson, 335 F.Supp.2d 166, 183 (D.<strong>Mass</strong>. 2004).<br />
E. Application of Law to Facts.<br />
This first degree murder trial was beset by serious<br />
errors from start to finish. Due to the combined effect<br />
of myriad mistakes by the trial court, defense counsel,<br />
the prosecutor, the Commonwealth's witnesses, and even<br />
the jury, Dirk Greineder was deprived of constitutional<br />
due process, and his resulting murder conviction cannot<br />
be deemed €air or just. Relief is warranted.<br />
CONCLUSION<br />
The defendant's conviction should be reversed or<br />
vacated, and the case remanded for a new trial.<br />
Respectfully submitted,<br />
<strong>DIRK</strong> GREINEDER<br />
By his attorneys,<br />
James L. Sultan, BBO #488400<br />
Jonathan P. Harwell, BBO #662764<br />
Kankin & Sultan<br />
151 Merrimac Street, Znd Floor<br />
Boston, MA 02114<br />
(617) 720-0011<br />
65