COMMONWEALTH OF MASSACHUSETTS - Mass Cases

January 18, 2011
COMMONWEAT,TH OF MASSACHUSLT'rS
SUPKEME JUDICJAT. COIJRT
SJT: NO. 08046
COMMONWEALTH OF MASSACHUSETTS
V.
JOSEPH BIJCKMAN,
Defendant-Appellant
ON APPEAL FROM JUDGMENTS
Ok' THE NORFOLK SUPERIOR COURT
APPKLLANT' S REPLY RRTEF
,Tnhn M. Thompson
BBO # 496780
THOMPSON h 'THOMPSON, P.C.
1331 Main Street, Suite 320
Springfield, MA 01103
hah~ohn@ttpclaw.com

TABLE OF CONTEN'I'S
1. BUCKMAN IS ENTITT,F,E TO A NEW TRIAL
BECAUSE HLS 'TRIAL WAS CT,OSF,E THROUGHOIJT
JURY SELEC'l'lON. . . . . . . . . . . . . . . 1
A. Buckman's Proffered Evidence
Rebuts Any AKTliCablC Prcsumpt i or?
That The Court Rourn Was O wn D~i.rj.riy
tTllrv Selection . . . . . . . . . . . . 1
E. Thc Closure Error Was Not Waived . 4
11. THE PKOSECUTOK'S MISCONDUCT TN KNOWINGLY
PRESENTING MS. 11OOPER' S "FAINT RESWT,TS"
OPINION AND USING lT TO ARGUE THAT BUCKMAN'S
DNA AND THE VICTIM'S UNA WLKL ON THE MOUTH
PTECE OF DUCT TAPL KEQUIKES A NEW TRIAL . .
A. St:.andard Of Review . . . . . . . .
B. 'The Motion Judqe' s Approva 1
Of Ms. floooer's False "Faint. Resu1t.s"
Opinion Testimonv Is Erroricous . . . .
C. T,eqrrdemain With 'The 'Tape
Fraqrnent.5. ............................
13. Prciudice O r .Siihst.ant.ial Risk Of A
Miscarriaqc Of rTuSt.ice . . . . . . . .
111. AN EFFECTIVL DEFENSE CANNOT
RE PRESENTED SUKKEPTITIOUSLY. . . .
IV. THE MOTTDN JUDGE SHOULD HAVE
CONDUCTED AN EVIDENTIARY HEARING ON
UUCKMAN'S SUPPRRSSTON CLAIMS. . . . . .
CONCLUSION .................................
'TABLE OF AUTHORITIES
Commonwealth v. Baker,
4/10 Mass 519 (200.3) ...............
Commonwealth v. Henoit,
302 Mass 210 (1981) ...................
Commonwealth v. Uohen (No. l),
456 Mass 94 (2010) ...............
'/
I
9
11
14
16
18
20
8,18
20
1,b

Corrunor.iwcalth v. Comita,
441 Mast; 86 (2004) ................... 1
Commonwealth v. Uanials,
445 Mass 392 (2005) ................... 1.,10
Conunoriwca1.t.h v, Dnwney,
'78 Mass App Ct. 224 (2010) ............. 6
Commonwealth v. Fldward,
75 Mass App Ct. 162 (2009). ............ 5,6
Commonwealth v. Ellison,
378 Mass 1 (1978) ..................... 8
Commonweal th v I Fnuan,
389 Mass 255 (1982)....... ............ 4
Commonwealth v. Goodreau,
442 Mass 341 (2004) ................... 7
Comm0nwealt.h v. G rant,
78 Mass App Ct 450 (2010)
............. 6
Commonwealth v. Grei neder,
458 Mass 207 (201.0). .................. 7
Commonwealth v. Kozec,
3'39 Mass 514 (1987) ................... !4,-15
Cornmonwr' I th v. Lat-imore,
3.18 Mass 686 (1979) ................... 16
Commonwealth v. T,opez,
426 Mass 657 (1998) ................... 1
Commonwealth v. Lvkus,
451 Mass 310 (2008) ................... 7,9,10
Coinnionweal t.h v. Martin,
417 Mass 187 (1994) ................... 4
Conirrioriwea I. I.h v , Muhdi,
456 Mass 385 (2009) ................... 8
Conmiuriwcallh v. Ranrlnluh,
438 Mass 290 (2003) ................... 6,9
CorrirnonwL'a1I.h v. Tyc~eri,
41.2 Mass 401 (1992) ................... 14

Commonwealth v. Vauqhn,
32 Mass App Ct 435 (1992). ............ 8
Commonweal t.h v. Williams,
3.19 Mass 871 (1980) .................... 5
CommonwealLh of t.he Northern Mariana
Islarids v. Bowie,
234 F3ci 1028 (9'-' Cir. 2001) ............ 8
Nix v. Williams,
167 U.S. 431 (1.978) .................... ZU
Parkc v, Ralev,
506 U.S. 20 (1992) ..................... 1
Preslev v. Georqi.d,
130 S.Ct. '171 (2010). .................. 4,5
...
-111-
.......

1. UUCKMAN IS ENTTTLEU TO A NEW TRIAL BECAUSE HLS 'TRIAL
WAS CLOSED THKOUGHOUT JURY SELECTION.
A. iliuckrr~an' s Protfered Evidence Rebuts Anv
Aunlicable Presumvtion TtlaL The Col.lrt. Room Was OD en
Durinu Jurv Selection.
Ruckman supported his claim that the court room wds
closed durir.1~3 Lhe jury se1ecct.ion phase of his trial with
the affidavit of Lisa Carlo [tiis dauyht.er, who is also
the daught-er of Susan UuckrriariJ arid transcrip1.s of the
Lestjmonies of Court Officer Larry Sullivan and Actiricj
Chief Court Ollioer Pat.ricia A. Belot.t.i, given in
Commonwealth v. Coheri (No. l), 4.56 Mass 94 (2010). A.12-
226. This evidence rebuts any presumption of a Lair.
trial or of regularity of proccdurc that rnigtiL otherwise
apply t.o Ruckman's t-rial because it presents J. "prima
facie" case, sufficient. to warrant relief on this
ground.' Commonwealth v. Daniels, 44.5 Mass 392, 405-407
(2005).
Ms. Belot-ti and Mr. Sullivan testified to the
practice conuistentl y fol lowed in Norfolk Superior Court.
for years. Mr. Sullivar'i said that. i t wds his pyactice
I\ as a Court Officer iri the Norfolk Superior Court Lo
Compare, Cornrrionwca.Ith v. T,opez, 426 Mass 657, 664 (1 998)
[ "integral to this rcaso11iri(3 is Ltic prcsurnption oL
regularity and t.he irriportarit- policy of finality"] quotiny
Parke v. Kalev, SOG U.S. 20, 29 (199%) Iprc:;urripl..ion or
regularity "a1 tachcs to Linal .jucigmcnLs"J with
CoIrmionwea1t.h v. Comita, 441 Mass 86, 93-Y4 (1OU4)
[applyinq presurription or 1ai.r Lr-i.ai Lo B p~~~-~orivi~lriori,
pre-aElpf?al Case]

close the courtroom Lo Lhc pub1 i 1: ~11.1ring jury selection."
He was asked: "Now wilh rcgard to t.he pract-ice of this
court UT doiny t.hat., for how long have you bucn doinq
t-hat'?" and xespondcd: "T've been a Court Officer since
1902. So it's twenty Lwcnly-six year. - t-wenty-five."
"And you've done it on each of thosc occasior-1.-7" -. "Yes."
A.104. Thus it is clear that Officer Sullivan, whosc
t-estimony covers Lhc per. i od during which Mr . Buckman's
trial occurred, said that jury sclect.ion closure was the
i nvariahle practice in that court 1.hrc)uqbout. t.hat. period.
Officer Sullivan said he belicvcd Judcjc Dor,tch-Okara
was aware of this pract-ice because "It's been the
praict-ice since l've been a Court. 0tfi.cer." Td:105. He
rnadc r,epeat.ed references to this practicc: "As has been
doric jr.1 past practice, yes." "As in other cdscs also."
1d:llj. "As 1 stat.4, past practice for the 'Trial Court
is to exclude the pub1 ic dur-iny t.he jury selection
process." Id:118. "tie [the prosccutorJ askcd if it was
the pracl.ice of the Trial Court. 1 said it was. Not
jusL Lhe Cohen case, any case l've worked 011.'' Id:128.
"Just, he asked was it past practice that the public was
excluded durincj jury sele:ct.ion. I said it has been since
I've work4 in I:.he Trial Cmirt.." Id:129-130; see also,
ld:178. Sirriilar.Iy, Offirer: .Sullivan t.est.ified that he
post.r~ a si.yn excluding the public "in every case that's
been t.ried i.n t.his courthouse." Id:181-185. This is
c

sLrony evi.dence t.hat the practice was folluwcd in Mr.
Buckman's t.rial, which w as also conducted in the 1arcjcsL
courtroom un the second tloor of the Dedham court house.
A. 12.
Acting Chief Court Officer Ucllotli' 1.cst.i f ied:
"Th.is was done all the time." Id:197. "Officer Sullivan
dues what. [.he policy is. All the Lobby Officers
typically clouc the courtrnrm during impanelment. "
ld:202-203. "hut duririy thc. impar-ieiment, typi.ca1 1 y
t.hey're [memhers of the public] not [let in] till t h crid ~
of the irnpariclmernt. ''' Id: 204. Closure is "Procedure.
Of a civil cas;c, of a criminal case, once t.he jury
impanelment starts, thc jury's lhc priorit.y, and we don't
want. to contaminate them, we don't want it disrupted
during t.he courtroom - coiirt. procedures, so we close the
courtroom. 01icc Lhcy'rn? swo'rrn in, we al.low t.he rest. of
the people in." Id:%06; 912, 719-?.'204.
The Commonwealth preseritcd no c.v.idcncc. that an
i
She testified LhaL .;hc had been workiriq as a court.
officer in Dedham since 1994. Td:202.
She added: "If there's special accommodations - all the
t.ime made for people who want to sit in on impanelment.
R1.1t it's during - it's before the impanelment starts.
Tt.'s not. during the impanelment - " ld:204.
Askcd about. a'l terndtive ways t.n avoid jury c!ont.act. with
Lhr:. pub1 ic and t.he possibility of let.t.ing t.he public in
as t.he jur'or's are excused, Ms. Belotti r:epli.ed: "The way
i Ls (:jone here is we (?lose the cloiirtroom." Td:219.
3

exception was made to this 25-year practice in Dedham for
Mr.Ruckman's jury selection["A [Ms. H c1oLt.i): We do close
the courtroom in civil and criminal cases ciurir.ig
impanelment. Q: Period. A: Period"]. Id:217. Ms. Carlow
and her six companions wcrc ordered t.o leave the
courI..r'oom when t.he pretrial motions had bccri hca rd, 'I A
sicjjn on the doors said "CLOSLU COURT." Courl. ot Li.cers
enforced the closure. A.17. The seven were potential
wit.nesses hut had not been scquest.ered. Even so,
sequcsL.rat.ion is a red herring: the chicl purpose of
sequester-inq wi t.iiesses is to prevent perjury.
Commonwealth v. Goqan, 3fi9 Mass 255, 261 (1982). If the
purpose of excluding Lhc Ca.r.Lo party was to shield the
jury L-rotn t.heir influence, the judqjc's L-ai 'lure t.n
consider a I ternat-ives before doing that, Preslev v,
Georuia, 130 S.CL. '711, 725 (2010), and to enter a
narrowly tailored orclcr bdsed on findings that justified
his act.ion, still violaLcd 1.h~ First, and 3ixt.h
Ameridmerils. u; CQmmonwealth v. Martin, 41.1 Mass 18.1,
194-195 (1994).
B. 'The Clusurc Err,or Was Not. Waived.
The Commonwealth's waiver ar'qument.s rest on the
premise that "[i]mpropcr. closiny of a ~court.room is a
5
Ttic scquer-ice was r.hat exclusion in Cohen was imposed
riytit. altt.er. t.he hearing on the pretrial motions. Id: 121.
4

properly objects at. trial, thus allowinrj Lhc judqe to
remedy the situation a t the t.ime." Four cases are cited
in whi.ch a contemporaneous ubjaclion was made, and relief
was granted. Commonwealth's Brief ["C.U."], 24. Tn each
case, the propo~ed closure was announced or otherwise
brought tu thc defenr1ant.s' attention, thereby eriahliriq
each to make a cor'iLemporaneous object-ion or waiver.
pre31c.v , 130 S.(:t. at 722; Maller v. GCOrcJid, 467 U.S.
39, 42 (1984); Commonwealt.li v. Wolcutt, 77 Mass App CL
1157, 460 (2010) ; Un.i t.ed St.at.e2 v. Aaost-o-Veaa, 617 t'3d
511, 544 (17? C ir. ZUl0). No closing can cmnstitutionally
occur wit-hout prior official rioLice and an opportunity to
be heard on the proposer1 closing. 'Thus no valid
procedural defaull 0.1 waiver is possihle without prior
not.ice of the proposed c1ot;inq. Appel lant's Brief
["A.B."], 15-16.
Waiver of t.he right tu public trial rcquires proof
both that there was a constit.utionally sufficient reason
for the closure arid t.haL the defendant. personally and
knowingly relinquished his riqthl.. Commonwea1t.h v.
F,riward, 75 Mass App Ct 162, 173 (2UOY) ["Waivcr r'equires
a sound rationale for clusuri. arid lhc cicLcndant.'c; knowinq
agreement"] ; Commonwealth v. Crant-, 78 Maso App Ct. 4S0,
458 (2010) [same]; see also, Corr~rr~or~wc.~l~.h v. Wi I I iams,
379 Mass 874, 876 (1980). NoCicc uf the cloourc is an
5

indispcnsabl e prerequisite to proof of a constitutionally
viable waiver. Commonwea1t.h v. (:ohen (No. l), 456 Mass
at. 118-119 n. 35 ["Failure oT a defendant or his counsel
to make an objection when first made aware of an alleged
public trial right violation j.3, at. t.he very least, a
st-rong indication of waivcr" (emphasis added) I . In
Edward, supra at 174; Corrnnoriwcallh v. Downev, 78 MaSs App
Ct 224, 230 (2010); Commonwealth v. Grant, supra at 458-
460, the Appeals Courl rcinancicd tor hearitnys on waiver.
Tn each case the trial court was direcLcd Lo find whether
Lhc detendant knew nf his public trial riyht mid that the
jury selection procediire heing used violated that riyht.
In each case a hcari.ny was required because ambiguities
in t.he record suggested thc possibi.li Ly t.hat. t.he
detendant. might. have waived the issue. E.q., w, supra
at 458-419.
NoLhing in the mat.erials presented to the motion
judge in Buckman's case suggests a possibility of wai.ver.
Trial cnunsel did not ask that the court room hi. closed
arrd was riot. aware t-hat it had been closed. A.12-13. She
was not Lrorn Norto1 k Co1int.y and no evidence suggests she
was awar'e or t:.he loc!al pract-ice. Buckman did not know;
trial courisel di.d not. merit-ion t.he closure to him. A..14-
15. Bccause Ruckman presented his claim as soon as he
cou Id aift.er di.scovering it, his presentation was timely.
Conlrnonwea I t.ti v. Randnlnh, 438 Mass 290, 294 (2003) .
6

AII cvidcn1.iary hearing on this claim was warr-aritcd,
Co~nrrioriwcalLh v. Goodreail, 442 Mass 341, 348 (2004), buC
t.he motion judge had discretj on t.o decide the claim
wi t.hou t. t.a king evidence. Commonweal t h v . G 1 e i. neder , 4 5 R
Mass 20'), 225 (2010). However, her decisiu1.i On the
merits, which rests on no expressed legal or factual
analysis, is clcdr.ly wrong. It. is reviewed de novo.
Commonwea1t.h v. Lvkus, 451 Mass 3lU, 325 (2008). On the
record hlorc it, t-his Court. should find that the courl
room was closed t.hrouyhout t.he jury selection; that thc
defense was riot awarrr? of t.he closure and did not waive or
default the resultirly c0nst.i t.ut.iona1 claim. A new trial
should be ordered on this ground alonc.
11. 'THE PROSECUTOR' S MTSCONDDCT IN KNOWINGLY PRESENTING
MS. HOOPLR'S "FATNT RESIJLTS" OPINION AND USlNC 1'1 '1'0
ARGIJE 1'HA'l BUCKMAN'S DNA ANT) THE VICTIM'S CNA WERE ON 'IHK
MOIITH PIECE OF UWCT TAPE REQUTn'ES A NEW TRIAL.
A. St.andard Of Review.
Tn his opening brief, Uuckmari made two wlated
claims uricicr two different headings: [l] that in
presenting Cellinark anal yst. Hooper's "faint results"
opinion, the CommoriwcaI 1.h knowi nqly present-ed false and
mat-erially misleading cvidencc, [ n.R., Part. TI, 19-35],
and [2] i n using this clpiriiori as i.hc basis for his
capstone argument in his Summation, t.he pr:osecutor
deliherately misled tiic jury. A.B., 44-4'1. Ruckman
contemporaneously ob jcct.erl Lo ILhe cl(:)si nq argument,. Id.,
7

44; A:102. Thc CommonweaI.t.t> aryues t.hat because Bi.i(:kman
did nut object wiicr.~ H~opc~.’.: boqun opj ni on was otfered,
the Court should evaluate that part of this co!itinuous
course of proseciit.oria1 misconduct separately, under a
substant.ial 1 i kelihood of miscarriage of injustice
stalldarci. C.B., 28.
Uecause the promcutiori has an iridcpenderit
constitutional duty not to present false testimony but to
honor and maii.nt.ain t.he int.egrit.y of the judicial
adversary syst.em, t.his kind of (claim cannot. he waived hy
the delcridaril. Commonwca lth of t.hc Nort.hcrn Mariana
Islands v. Howie, 243 k’3d 1109, 1122 (gth Cir. 2001).
Recause the Commonwealth did not make its waiver claim in
the Superior Court, it. i..: waivcci. Commoriwcalch v. Mubdi,
456 Mass 385, 391 (ZODY).
Buckman established that the ‘faint. resu1t.s” opinion
was concealed hefore trial through discovery violations
and spruny on t.he defense during Honper‘s testimony.
A.B., 24-26. Scc, Commonwealth v. Raker, 440 Mass .519,
527 (2003) [proscccul.or uncicr a cor-il.irluir.ig Ciu1.y Lo noLify
the court and opposiny counsel of chancje in position].
The Commonwealth has not challenged this point. The lack
of objection was the fruit of this ‘trial by ambush“
stratagem. Commonwealth v. Ellison, 376 Mass 1, 26-27
11978); Co!rirrionwc;iltti v. Vnunhn, 32 Mass App Ct 135, 442
(1Y92); cornpare, w, supra at 527-528; see also,
n

Commonwealth v. Kozcc, 399 Mass 51 4 , 573 (1 98'7) ["Once a
properly raisccl objec:t.i on t.o a prosecutor's argument. is
found to be valid, Lhc cnLirc rccord, ir.iclucli.ny the
ha1 ance of the prosecutor's argument, becomes relevant in
dcl.crmininq whet-her t.he error was prejudicial to the
point of requiririq rcvcrsa.L 01.' 1.h~: convi ct.ior.1. " 1 .
'The f a1 sit y c> L Hoopc L ' 6 " I a i. r) 1. LCS u 1 L s " 1.c s 1. .i. mo II y
was not self-evident when it was given [in fact, after
studyiny it. in relat-ion to both Dr. Libby's and Dr.
Cot.Lons' s dt t- i (3avi.t.s repudiat.ing the opinion, the motion
judrje st.ill rcfuscd t.o say it wa:; talse or materially
misleading]. Uuckrrian raised this claim at his LirsL
opportunity. He is entitled to full, de novo review of
this clairn. Randoluh, siipra; a, supra.
B. Thc Mot.ion JI)~CIP'S Anurnval. Of Ms. Hoouer's
ral:;c "FairiL Rcsu I t.s" Cipini an Trst.imony Is Errnneoiig.
The motion judrje fourid that Ms. Ilooper' s "fairit-
results" opinion was consistent [a] w ith Ms. 1loope.r'~
conclusion in her report that Susan Buckman was excluded
as the donor of the hlood on It.em 11-3 (A.791) and [h]
with Ur. Cutt-ori's aL~CidaviL coril~ir~miny t.ti

Court's review is de novo. a, supra.
The judge rejected Ur. Libby's opinion that Ilooper's
\\ fairil; rcs~ilts" opi ni.on was inconsistent. wit.h her report
excluding Susan Buckman as the donor. Stic charactcrizcd
Hooper's opinion as stating that "no one - neither Susan
Huckmdn nor anyone else - could he excluded" as the
donor. A.791. That. is, t.he opinion was neither relevant
nor helpful tu Lhc jury. Comnionwea1t.h v. Cvr, 425 Mass
89, 96-97 (1997). 'The judge did not address the fact
t.hat. Hooper's report excluded Susan Buckman as a source
OT the DNP, or) Ttem 11-3.
Jud(qjc Fabricant. made her second rul i ny i t i response
to T16 of Ur. CotCori's rorriarkablc February 20, 2008
affidavit. She mistakenly read cl16(h)h t.o say t-hat., if
~ h c lai in^ r'csul ts" "came from more than one secondary
contributor, then Susan Huckrrian could havi: bccri a source,
since they also iricliidc a11 allc.lc siic docs havc." Thc
judge mistakenly concluded that Ur. Cotton's affidavit
"is Iully consistent with Hooper's t.rial t.estimony that
the faint results 'may bc. due to thc prcscricc 01 iilorc
than one individual CIL technical artilacta' arid that
'there is a possibility tht Susan liuckinan is present'
i
In qll(;(a) nr.. Cot.ton sai.d "[t.lhe results from Ttetn ]I.-?
cxcl tidc Susan Ruckman ( . ) No tdi r-it. resu 11,s arc obscrvcd
. . . I..iir:rr: is no iridicat.ion of d ::t:cr:jiid cor'iLribuLor-(.)"
A : '148.
10

alorly wi1.h the DNA of Joseph Riipkman." A.243-244.
Tn 'ill6(b) Dr. Cot.t.on sairi:
"For Item 11-11, two TainL rcou1Ls arc
ohserved. One is a faint 'U' at the GC locus and
the ot.her is a faint '4.1' at the UQAl locus.
Based on the test results, there is no way to know
wi t.hout. flirt-her testing if these faint types are
irom a secondary cont.rihiit.or or t.hey are simply
Lcchnical 3rt.i fact.s. While Susan Biickman does have
a '4.3.' al lele at t.he UQAI. locus, she does not. have
a 'R' allele at. t.he GT: lnciis. Thus, if these faint.
types wcrc 1rom only a .;inqlt: secondary
contributor, they could nut have coirio from Susan
Ruckman. If there were more than one secondary
corl1.r i but.or., no conclusion could he drawn ahout the
s~uice because t.he resti1t.s were below the threshold
f c)r iriLcrprc t.a t i ot1 . "
A.749. 'The results provide. iio possible .;upporL Tor-
Hooper's opinion that SLISXI Uuckman might have been a
source of the DNA.
Dr. Cotton's aL'Lidavit est.ab1 ished conclusively t.hat
Hooper's "faint rcoulls" opinion was talsct and/or
materially misleading. The prosecutor's surnrriatiori
demonst-rat-es that his stratagem of surreptitiously
prcscnti nq i t. was pi.irposefii1 and prejudicial.
C. Lc.qc?r-dcind .i n Wi th The Tape Fraqmet-It.:; ,
Huckman argued in his opcriiiiq bricL that ILcm 11-2
is a cutting from thi? tap taken from iiuckrnari's rnouLh arid
Item 11-3 is a cutting from the tape taken from Buckman's
wrists. A.B. pp. 21-26. Cellmark's testing on Item 11-3
produced "faint results" but its testing on Item 11-2 did
not. Throughout liooper's testimony, she and the
prosecutor referred to ltem 11-3 as a cutting from the
11

t.apc laken from Buckman's moul..h. In J. footnote, t.he
Cominunwealth disput-es Bi.ic:krrlari' :; argument that. It.em 11-3
came, not from the mouth strip but rather from Lhc wrist
strip of t.apc. CU, 28 n. 13.
The Corrorionweslth argues t-hat. both cuttings 11-2 and
11-3 were taken from t-he moiiLti tape, and t-hat. Cellmark's
report makes no reference to wrist cut.t.inys.' Id. 'The
record of where Lho item 11 ciit.tin9~ came from is
ambiguous i n some respetcts, buL clear on one poj.nt: Item
ll.-3 is not from the mout.1-i Lapo. A.418.
At trial, Chemi $1:. Pratt [A.609-6101 each testified
about two tape cut,tiriqs that he had macle, une from the
mouth tape and onc from the wrist. t.apc. Id. In three
entries, Ccllmsrk's August. 5, 1998 report describes two
cutt.irlgs submitted for t.esti.ng as follows: "It.em #11 (#2
tape from mout.1~)" Arid "item #11(//3). A.'739,741,742.
Buckman infrrr.cd Lhat the undesignat.ed Itern 11-3 cut.t.iny
was from t.hC wrist strip as Prat.t's Lestimony implied.
RuL the Cornmonwea1t.h invokes 1'rat.t' rj belatedly
disclosed notes, which indicate that he madc Lour tape
cuttings: two from t.he iiiouth tape, one t r:om the wrist
Thi.9 arqurnent is difficu It. to respond to corripletely
because i t. depends in part. on a document. t.Ihal is
designat.ed "S.A:1-4" hiit is not incliided i1.i the
Commonwea l.Lh's Supplement-ai hppcridix. See, CR, 2 n. 1
["Referenccs are: * '* Comrrioriwealth' s supp I crricntal
appendix (SA) "1 .

tape arid uric Lr-om t.he t.ail end of the tape roll. A.402,
403. In hit; not.es, Frat-t. listed three of these cuLs
under I tem 11 [he did IIOC account. for the fourth]. He
designaLcd Tkrns 11 (1) and 11 (2) iis "sarnplc ovcr' mout.li"':
ltem 11(3) 3s "Sample duct. t.ape roll under sticky side at
beginning of roll.'' A.41.8. Tf t.hese notations are
accurate, Item 11-3 in Cc1:Imark's Al.~gust. 5, 1998 report
is d ci.it.%ing from the duct 1.apc rol 1 found in the
bedroom. Irid.ispllt.ahly, it was not cut from l.ape t.aken
from Buckman's b,ociy.
Pratt.' s notes curifiriri Eiickman' s original points that
[ 1 j t.he references tu til(: cu tt.i rigs were switched,
creating the false appearance thaL ~iic "faint. ressu1t.s"
were (derived frorn lhc mouth strip; AND [2] the "Laint
resulis" opirlion was false and rnislcadinq. The tail of
the tape roll was not. directly connected to I.tic. murder
like the picccs t.aken from Buckman's body wcre. The
closing argurricnt. assertion that the UNA of bo1.h Mr'. and
Mrs. Buckman were on a piece of tape that was found 011
Buckman's mouth, arid thus i.ndi spiitably connected to the
rnurdcr, was much more inculpatory 1.0 Ruckman. A. 702-703;
A.U., 44-4.5. Tt. was false and materially rrrisieddinq.
Ruckman's st-atement that he harldlcci 1.he t.ape in
The description of (2) is rriarked out. and "mouth" is
written in next to the. ~~riqir.i*l
designation. A.410.
13

October, togethcr w.i t.h t.he evidence of his blood stains
Lon the floor and drycr and 1.he fact t-hat. only Buckman's
blood was on the tape, accounted for his t:>lood and his
fingerpririts on t.he tape, and suggested that but11 werc
innocently cicposit.ed when he used the tape in October.
The false presentaLion that Susan Buckman's DNA w as on a
pie(:* of tape taken Lruin Huckman' s body [mout.hl directly
atlackcd this important exculpatory evidence.
U. Preiudiccl Or Subst.antia1 Risk Of A Miscarriaae
Of Justice.
Judge t'abricsnt Iounci Lha t. t.he proseciit.o~-'s aryument
i r.1 :;utnmat.ion that was based on Iluopcr' Y "la i (11. r esul t.s"
opiriion was not. supported by that testimony. A. 245.
This was an error Lo which defense counsel specifically
object.ed; the trial judicjc did riot r'ule on t.he objection
and qave no (7orrective instruction. Silva-SariLiaqo, 453
Mass at. 807-Rn'l. The motion judge did nut coris.ider
Uuckrriar'~' s aryument. that the prosecutor did IIUL simply
overreach, his argument. rest-erl on the false evidence he
had presented. Comrnoriwcalth v. Co I1 i n::, 386 Mass at. 9-12.
Ruckrnan is rntit.led to a new trial unless this Court
finds that t.licre i:i no reasonable possibility that his
srqurncr.rL a ttected t.he Jury's verdict. Commonwealth v.
Tucccr.i, 412 Mass 401, 405 n. 3 (1992).
Recause t.imely object-ion was made, the prejudice
yener;it.ed by this closing argument takes the entire
14

cco~d into account. -, supra. Uuckrnar’i has shown
that t.t-iis error pervaded the trial. It was facili1.atcd
by the latc disclosure of Pratt’s notes’’ and the
concealment. of Hooper’s “fairit rcs~ulLs” opinion, even
Ir-om her superior at Cellmark, Dr. CuLLuri, who by
rrinnipu1alior.i was made to appear to endorse that opinion.
A.B., 26-ZY. By swit.ching references, the “faint results”
opinion was used to rcLuLc. Ruckman‘s explanation t.o Lt.
Fl a iic L t y a n d t. he r i r c iims t an t i a 1 evidence s u ycje ti Ling 1 ha t
his firicjcrprinl.:; and blood were put on the duct tape wheri
he repaired Ltic dryer in Oct-ober.
‘I’he issue ol: prejudicial impact is not quantitative.
The art. of persuasion irivolvcs rriaking cf fect.i ve emotive
use of cvidcnce. Michael E. ‘Tigar, Persuasion: The
Litigator‘s Ar’t (ARA 19Yf4), p. 12.’’’ The prosecutor
emotively huilt his surronaLiori up to the capstone point.:
t.he tape Buckman pldccd ovc~: his owt-i mouth condemned him
hecause i t had his fingerprint in Susn:i’s blclod ori it.
A.702-703. The issue is whether the Court can conclude
Buckman does not suggest that this late disclosure was
intcrit.ior.ia I on the prosecutor’s part because he asked
Pratt., a meniber. of t.he prosecution team, for these notes
in June, 1998. NO explanat-ion for Pratt’s failure to
cornply has been otfered. The pot-entia1 usefulness of
these rioCc:; ha$ not. been fully explored.
:fl
“We uridcrs~arid t.he primacy of story in human
communications, pcrcept.i on and persuasion. We know that.
jurors arc niuvcii 1.0 acc:ept. one story over annt.her hy
erriotiurial elements in the narrative”] .

eyond a reasonable doubt t.iia1. t..hi c; fal.se argument. did
not affect the jury's dcc.isioo. Collins, supra at. 9-12.
Recause it. w as addressed to the crucial issue 01 whether
Buckmarl commi t.ted t.he murder, the likelihood that it did
simply cannot be ignored, even at the level of avoidirirj
J. substantial risk or a miscarriage of justice. Silva-
:;antiaao, supra at 808-809.
111. AN L:t.':t.'L:C?'IVE DEFENSE CANNOT RE PRFSENTF,r)
SURREPTI T I DIl SLY .
The Commonwealth's argument that Uuc.kmari was riot
harmed by the 1.rial judqe's prnhibi.t.ion of his third
party culprit defense supposes that a corisLilut.iotnal1 y
effect.ive defense can be presented on the sly. The 1acL
is that. the Commor1wealt.h was constitutionally required to
prove bcyor'ld a r eac;onabl e dnubt. t.hat. ,Joseph Buckman
murdered Susan Buckman. Commonwealth v. Latiriiorc, 3'18
Mass 671 (1979). Ergo, had Huckman been allowed to
p~'eset~t his suhst.antiated'' defense that John Loder
I.
Lodcr was present within miniit.es of the time of the
murder. A.481, 5'/9. He directed t.he police t.o t.he
location of the victim's bociy. TT:86 He i-lad acceSs to t-he
house arid could cr'lLcr wi 1.hotit t)waki nq I t.her.e was no sign
of forcible entry]. A.339, 347, 381. He had several 1.arge
knives in the housc, onc 01 wh.ich was unaccounted for
immediately after Lhc rriurdcr arid i'ic!vc.r 1.ocaLed. A.341..
'The murder wr:apori wd:: a kn i f'c. He had no a 1 i t).i , Neither
the step-iri cov(~ra I I I..hdt. the was wearir-ly nor the clot.hing
under i.r was examined for hlood. 1:/16-17. He knew that
Ruckman handled large amounts of cash. A.322, 500, 508.
Huckrnan said be may have been r:obhrd nf $3%00. Loder: was
rioL qucstior'icd as a suspect, was qiver-i access to the
cr-itnc sc~"r'ir:' and w a ~ bot.h given and al lowed t.o overhear
16

commit.t.ed t.he murder, or' coiild r'iol bc ruled out as the
killer, the Commonwea1t.h wou 1 (i havc had tu prove beyond
a rea:;onable doubt. that I.,oclcr was riot the killer. Silva-
Santiaqo, 453 Mass st 801 ["If the evidence is of
'substantial probative value, 'and will not. tend Lo
prejiidice or confi.ise. a1 1 dc)iibt should be resolved in
favor of admissibi 1 i ty"] ; Conirnur'iwealth v. Linton, 456
Mas:: 534, 554-,555 (2010). 'This cannot be a collat.era1
issue. 'The evidence that. Loder commi t.ted the murder
involved most-ly his conduct that. day, so it was close in
time. Tt. was cvirjcricc of presence and opport.~init.y,
mol:.i vc and coriducl reflecting consciousness of qui 1 t..
If defense counsel was ahle t.o weasel in scmc of the
evidence against Loder wi 11 y-ni I 1 y , inpu(y1 his
credihilit-y, and auque t.hat. t.hc real killer had not been
found, [C.R., 48-4YJ Liiat is not a constit.utionally
acc~pt&le substitute for presenting a (:ohercnt.,
organized defense. Herrina v. New York, 422 U.S. 853,
862 (1975); Tigar, Examininy Wi1.1icsses [American Bar
Association, 2d ed 20031, Chapter One, 'I'heory of the
information about the c:ircurnstariccs of the murder known
to the police. A.B., 3-4. He showed no concern for
Buckman's welfare and ~~~-mpleL.el \i cut off his contact wit.h
the surviving Buckman famj .I y including his jok -
immediately aft-er t.he mur(1c.r. A.522.
17

Case, pp. 1-46.'' tiuckman was prccluded from preser'ilirig
an articulated, coherent. story liiat Loder was the ki.lier.
IV. 'THE MOTION ,JUDGE SIIOULD HAVE CONDUCTEU AN
EVIUENTIAKY HEARING ON BUCKMAN'S SLJPPRRSSION CLAiMS.
Biirkman made a siihst.antia1 showing on the
substantial issues of whctiier his counsel had failed to
present viahle Fou r.1.h Amendment. search and seizures
ciairns, and whet-her shc had failed t.o conduct an adeqi1at.e
investigat.inn .into the Miranda issues she litigated.
B;lkPT., 440 Mass at 529. Thc motion judqe abused her
discretion in denyi nq tticse claims wit.liouL an evident-iary
hearing. Daniels, 445 Mass at. 405-407.
Defense counsel interviewed nor-ic uf the hospi td.1
staff who was present in t.he 6R arid actually observed the
interactions of the pol icc and staff. At? irivestiyatinn
and effect.ive lc(3jal research would have revealed
circumst.arices supporting a I cyai claim that Ruckrrian had
a reasonable expectation oI. privacy in his closed
hospital room and t.haL the police r-cpeatedly and
per.vasively violat.ed that. expectation. United States v.
w, 3/15 F3d 366, 370-371 (5t.h Cir:. 2003); Jones v.
I ,
For cxarriple: "t.his book moves from t.hrccl important ma-jor
prcrriises into a se1i.e~ of chapters t.haL. contain insiyhts
i n1.o the witness exam i riation prohlerns you w i l l encour.1 1.~1
in tvial. 'The three pr-emisos are:
1. Deciders perceive. whole st-oriels.
2. The way you tel i it makes a11 I-he difference.
3. You always naviqjale by dead rcckoning."
Id., at 5.
18

m, 648 So. Zd 669, G'i5-619 (Fla. 1994).
These fac.ts arid ci.rcumst.anc:es also supported
Ruckman's Miranda claim that he was iri custody when he
was firsL questioned and t.hroughoiit his hospital stay.
The affidavits 01 Palicnt Advocate Denise Purt-le and
Nurse Sharkansky are not conc.lusory or cumulative of
ot.her evidence on this point ["In my eiqtit- ycdrs wor.kinq
ir.1 1.he emergency department, Mr. Uuckman is the only
patierit I OVCT dcalt. wi.t.h who was isolated in this way"].
A.511; Nurse Sharkarisky, A.508.
The record clearly demonstrates that the police
coriduc1.c.d warrant.less searches in Buckman's home ori
Uecerriber 13, 19Y/ net.. Sgt. John Court.ney's report
recounts that he searched inside Lhc iiousc Lor siqr-is o t
forced ent-ry: photographed the interior of the housc; and
"mentbers oL the stat.* pol ice 'phot-ographed and videotaped
the crime sccr'ic', ' " all before t.he search warrant
application was rnacic. A. 318-320, The Commonwea1t.h does
not address this evidcricc..
'The CommonwealLh cor'iLcsl.3 whct.her Tpr. McDonald
cxami ned and Tpr . Beehan photogriiphed Buckman' s head
without a warrant.. Hospital recrjrds and staff affidavits
euLabljsh t.hat. the phot-ography was done at or before
IIOOI'I, not by hospital staff, for non-medical reasons.
A.444,SOR. McDonald said in the grand jury that he had
done wat.ched a doct-or examine Buckman's head "later on in
1 $1

the day." A.538. Liuckrriari was examined by two doctors.
Dr. Witman examined Buckman before 7:OO a .m., when Dr.
.Johnson assumed responsihility. A. 503. "Around 10: 30
a.m." Dr. Johnson "c:ompl.ct.cd my cxarnir.ia1ior.i 01 M r.
Uuckrnari." A. 504. Ttic hcad t;cralches art) rioted in Ur.
Johnson's discharge note, dictated at 10:31 a.m. A.
446,504. McDonald was at the hospital participat-ing in
Lhe t.wo int.erroqation.5 at. 9:OO a.m, lA.34'/1 and 71.:15
a.111. A .350.
If this evidence had been presented and found to be
acci.iriit.e i n a suppression hearing, t.he Commonweal t.h would
have had to cstabl.ish that each of 1.hcsc searches had
bocri justified by dr.1 cxccpliori tu the warrant
requirement. Cornmnriwealtli v. Antobenedetto, 366 Mass 51,
58 (1974). Further, the police presence in Buckman's room
whcri L.hcy cjuct;L.ionc.ci him v i.ola1.c.d t.hc Fourth Arncndrrmrit
arid hit; t;laCcrncl.o wotc .i.r.ia~dmio$ible fruits uf that
violalion. Uriitcci St.aLco v. Johr'ison, 333 U.S. 10, 13
(1948); Nix v. Williams,46? U.S. 431, 433 (1378);
C:omrnonwealth v. Benoit, 382 Mass 210, 216 (1901).
CONCT,WSTON
For: Lhc redc;onS stal..rxi i1.i Huckrriari' s operiirig brief
and in t-he forcqoi nq arqumer-iLs, 1.hc judqrrierit against him
must. he reversed and t.he case reinar'ided Tor a IICW trial.

Kespect fully subrriiL Led,
JOSEPH BUCKMAN, A ppellant
Joht-1 M. Thompson
RRO {I 496780
THOMPSON & THOMPSON, P,C,
13.31 Mairi SLrccl
Springfield, MA 01103
[413] 739-2100 - tele
[‘I131 739-2300 - fax
11 ,?be A .$ i o hn la t t~?. 1 r7 w . r om
CERTIFICATE OF SERVICE
The undersi gnrd herehy cert-ifies t-hat. a true and
accura~e copy of the fwegoi tng memorandum has been served
upon Assistant Uistrict Attorney Varsha KukaLka, 45
Stiawmut. Road, Cant-on, MA 02021 by first class mail,
postaqc. pr’epd id, this It3”’ day of January, 2011.
John M. Thompson
CERTIFICATE OF COMPLIANCE
I hcrcby C(:Yt.ify piirsliant. t.o R11le 16(k), M.R.App.P.,
that khis bricL coinplie:; wiLh t.he rules of court
pertaining to the prcparaLiori and Lilir.ig 01- briers,
including but not lirriilcci tu: Rulcs 16(a) (1-8); Rulc
16(b); K ule 16(f); R ule lb((3); Rule 16(h); Rule It: and
Kule 20.
,John M. Thompson