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SJC-11766

                COMMONWEALTH   vs.   CHRISTOPHER KOSTKA.



            Suffolk.    February 3, 2015. - June 17, 2015.

     Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly,
                              & Lenk, JJ.


Contempt. Practice, Criminal, Contempt. Constitutional Law,
     Search and seizure. Deoxyribonucleic Acid Search and
     Seizure, Buccal swab, Probable cause. Probable Cause.
     Evidence, Buccal swab, Relevancy and materiality, Third-
     party culprit.



     Adjudication of contempt in the Superior Court Department
by Jeffrey A. Locke, J., on April 9, 2013.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     John H. Cunha, Jr. (Charles Allan Hope with him) for the
defendant.
     Teresa K. Anderson, Assistant District Attorney (Ursula A.
Knight, Assistant District Attorney, with her) for the
Commonwealth.
     William Trach, Laura Carey, P.R. Goldstone, & Chauncey B.
Wood, for Massachusetts Association of Criminal Defense Lawyers,
amicus curiae, submitted a brief.


    DUFFLY, J.     The Commonwealth seeks to compel Christopher
                                                                   2


Kostka1 to provide a saliva sample from which it may obtain

Christopher's deoxyribonucleic acid (DNA).   The Commonwealth

filed a motion in the Superior Court to compel the taking of a

saliva sample, arguing that a DNA sample is necessary in order

to determine whether Christopher is the identical or fraternal

twin of his brother, Timothy Kostka, who has been indicted on

charges of murder in the first degree and armed home invasion.2

Christopher is not a suspect in that case.   A judge of the

Superior Court allowed the Commonwealth's motion and ordered

Christopher to provide a buccal swab;3 Christopher refused to

comply, and a judgment of contempt was entered against him.

After the Appeals Court affirmed the judgment, Commonwealth v.

Kostka, 86 Mass. App. Ct. 69, 72-73 (2014), we granted

Christopher's application for further appellate review.       We

conclude that the Commonwealth has not made the requisite

showing, see Commonwealth v. Draheim, 447 Mass. 113 (2006), to

support the compelled production of a DNA sample from an

     1
       Because the brothers in this case share a last name, we
refer to them by their first names.
     2
       According to the Superior Court docket sheet, the case
against Timothy Kostka has been continued by agreement until
September 14, 2015.
     3
       "A buccal swab . . . test involves the rubbing of a swab
on the interior surface of the cheek to obtain cells that are
then evaluated . . . for deoxyribonucleic acid (DNA) analysis."
Doe v. Senechal, 431 Mass. 78, 79 n.4, cert. denied, 531 U.S.
825 (2000).
                                                                    3


uncharged third party in a criminal proceeding and, accordingly,

that the judgment of contempt must be reversed.4

     Background.   In support of its motion, the Commonwealth

submitted affidavits from Boston police criminalist Joseph Ross5

and Boston police Detective Philip J. Bliss.   We summarize the

factual assertions contained in those affidavits, which the

Commonwealth intends to establish at trial.    On April 16, 2012,

at approximately 10 A.M., the victim, Barbara Coyne, was found

in her bedroom, bleeding profusely.   She was transported by

ambulance to a hospital, where she died at 10:37 A.M.    The

medical examiner determined the cause of death to be homicide by

"sharp force object," that is, by stabbing; the victim suffered

multiple wounds, some of which appeared to be defensive.

Evidence collected from under the victim's fingernails was

tested and found to be consistent with a mixture of DNA from two

or more individuals, including that of the victim.   At the time

the Commonwealth filed its motion, no other potential

contributors to the DNA under the victim's fingernails had been




     4
       We acknowledge the amicus brief submitted by Massachusetts
Association of Criminal Defense Lawyers.
     5
       Joseph Ross did not conduct any of the testing in this
case, and submitted his affidavit based on a review of the
Boston police crime laboratory file.
                                                                    4


identified by scientific testing.6

     Police investigation revealed evidence linking Timothy to

the crime.   A police expert determined that a bloody fingerprint

on an item in the victim's living room, and two fingerprints

recovered from items in the victim's bedroom, matched Timothy's

fingerprints.   Videotape retrieved from a nearby store showed an

individual who looked like Timothy engaged in a transaction near

the lottery machine at approximately 10:03 A.M.    According to

the State Lottery Commission, winning tickets cashed at that

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

lottery tickets that had been found in the victim's living room.

In addition, when Timothy was booked in connection with a

separate matter, he had scratches on his body.    Bliss stated in

his affidavit that the scratches were "consistent with contact

from another" and "could provide a source of DNA such as the

biological matter collected at autopsy from the swab of [the

victim's] right hand fingernail."

     The investigation also revealed that Timothy and his

brother Christopher are twins.   A DNA profile is unique to each

     6
       According to a supplemental affidavit of the Boston police
criminalist, which was filed in the Superior Court after a
single justice of the Appeals Court had issued an order for a
stay pending appeal from the judgment of contempt, and which the
motion judge allowed to be made part of the record on appeal
over Christopher's objection, further testing later revealed
that Timothy "is partially included and unable to be excluded as
a possible contributor to the mixture," but that "[a] complete
DNA profile consistent with Timothy . . . was not detected."
                                                                     5


individual, except for identical twins, who share the same DNA

profile.   See Commonwealth v. Dixon, 458 Mass. 446, 448 n.6

(2010); Commonwealth v. Curnin, 409 Mass. 218, 218 n.1 (1991).

According to both Bliss and Ross, Christopher and Timothy are

believed to be fraternal, not identical, twins.   Christopher

testified before the grand jury that he and Timothy are

fraternal twins.   The Commonwealth also indicated at the hearing

on its motion to compel that Timothy and Christopher do not look

alike, and are not of the same height and weight.   Nonetheless,

at that hearing, the Commonwealth argued that the only way to

determine definitively whether Christopher and Timothy are

identical or fraternal twins is by testing Christopher's DNA; if

the DNA profiles differ, it can be inferred that they are not

identical twins.   The judge allowed the Commonwealth's motion,

concluding that the DNA sample was relevant to establishing

whether the DNA obtained from under the victim's fingernails

matched Christopher's, and that "[w]ithout such evidence, a fact

finder at trial may have lingering doubts as to the true

biological relationship between the twin brothers here and the

origins of any DNA evidence recovered at the crime scene.    Thus,

a sample of Christopher['s] DNA will probably provide evidence

relevant to the question of Timothy['s] guilt."

    As stated, Christopher refused to comply with the order to

compel and was found in contempt.   See Lenardis v. Commonwealth,
                                                                     6


452 Mass. 1001, 1001 (2008), citing Commonwealth v. Caceres, 63

Mass. App. Ct. 747, 747-748 (2005) ("A nonparty directed to

provide evidence . . . can challenge the propriety of the order

by refusing to comply with it and appealing from any order of

contempt that results").

    Discussion.     "A government-compelled buccal swab implicates

the protections afforded by the Fourth Amendment to the United

States Constitution against unreasonable searches and seizures."

Commonwealth v. Draheim, 447 Mass. 113, 117 (2006), citing

Commonwealth v. Maxwell, 441 Mass. 773, 777 (2004).    While a

buccal swab, which does not involve penetrating the skin,

arguably is less intrusive than a blood sample, see Commonwealth

v. Maxwell, supra at 777 & n.9, "the obtaining of physical

evidence from a person involves a potential Fourth Amendment

violation at two different levels -- the 'seizure' of the

'person' necessary to bring him into contact with government

agents . . . and the subsequent search for and seizure of the

evidence" (citation omitted).    United States v. Dionisio, 410

U.S. 1, 8 (1973).

    Where the Commonwealth seeks to obtain a buccal swab from a

third party who is not suspected of any crime, it bears the

burden of establishing probable cause that a crime has been
                                                                    7


committed,7 and showing "that the sample will probably provide

evidence relevant to the question of the defendant's guilt."

Commonwealth v. Draheim, supra at 119, citing State v. Register,

308 S.C. 534, 538 (1992).   Relevance alone, however, meaning

simply that the evidence "render[s] the desired inference more

probable than it would be without the evidence," Green v.

Richmond, 369 Mass. 47, 59 (1975), is not enough.    "Additional

factors concerning the seriousness of the crime, the importance

of the evidence, and the unavailability of less intrusive means

of obtaining it are germane."    Commonwealth v. Draheim, supra,

citing Matter of Lavigne, 418 Mass. 831, 836 (1994).     A judge

must weigh these factors against the third party's

constitutional right to be free from bodily intrusion.    See id.

See also State v. Register, supra ("only if this stringent

standard is met" may intrusion be sustained).

     The Commonwealth maintains that the judge was correct in

concluding that it has met its burden of establishing that a

sample of Christopher's DNA probably would produce evidence

relevant to Timothy's guilt.    The Commonwealth notes that each

person's DNA profile is unique, except in the case of identical

twins, see Commonwealth v. Curnin, 409 Mass. 218, 218 n.1

     7
       The indictments against Timothy satisfy the first element
of the Commonwealth's burden. See Commonwealth v. Draheim, 447
Mass. 113, 119 (2006) ("Commonwealth's burden to show probable
cause that a crime has been committed is easily met because the
defendant has been indicted").
                                                                       8


(1991), and if, as expected, it is established that Christopher

is not an identical twin, a line of possible cross-examination

at Timothy's trial would be eliminated, and a potential

third-party culprit defense would be refuted.   Such a result

also could support the Commonwealth's case-in-chief; assuming

the DNA found at the scene is determined to match Timothy's DNA

profile, the Commonwealth's expert would be able to testify that

it does so uniquely, as no other person will have the same DNA

profile.

     We do not agree with the judge's conclusion that the

Commonwealth made an adequate showing.   Its arguments for the

relevance of Christopher's DNA depend on Timothy being

identified as a contributor to the DNA found under the victim's

fingernails.   As noted, when the Commonwealth filed its motion,

only the victim's DNA had been so identified, and laboratory

testing had not yet identified Timothy as even a potential

contributor.   Without evidence that Timothy's DNA was found at

the crime scene, Christopher's DNA would serve no purpose.      Even

considering the information set forth in the Commonwealth's

supplemental affidavit, see note 6, supra, we are not persuaded

that the Commonwealth has met its burden.8


     8
       Christopher argues that it was error to expand the record
on appeal to include a supplemental affidavit that was not
before the judge at the time of his decision. Because of our
disposition of the case, we do not reach this issue.
                                                                   9


    The supplemental affidavit states, without detail, that

Timothy is partially included, and is unable to be excluded, as

a contributor to the DNA found under the victim's fingernails.

The affidavit does not state conclusively that the profile of

this DNA matches Timothy's DNA profile.   It also does not

indicate either the extent to which the DNA does match

Timothy's, or the likelihood that other people are "partially

included and unable to be excluded" in the same manner as

Timothy.   See Commonwealth v. Tassone, 468 Mass. 391, 402 n.2

(2014), quoting Commonwealth v. Barbosa, 457 Mass. 773, 789

(2010), cert. denied, 131 S. Ct. 2441 (2011) ("where '[t]he

human genome sequence is almost exactly the same [99.9 per cent]

in all people,' a match of the defendant's DNA profile with the

DNA found at a crime scene 'says almost nothing about the

likelihood that the defendant was present at the crime scene

unless the jury learn from an expert' the mathematical

probability that another person has this same DNA profile");

Commonwealth v. Mattei, 455 Mass. 840, 855 (2010) (holding that

evidence that certain person could not be excluded as potential

contributor of DNA should not be admitted without accompanying

statistical evidence of likelihood that test could not exclude

other individuals in given population, and concluding that

introduction of "nonexclusion" DNA evidence without statistical

explanation of its meaning was prejudicial error).   Indeed, it
                                                                    10


would appear that any of Timothy's genetic relatives, including

Christopher (even if he is Timothy's fraternal twin), might be

so described, as they would share a portion of their DNA with

Timothy.9   On this record, even certain knowledge that

Christopher and Timothy are fraternal twins would neither

establish that only Timothy could be the other contributor to

the crime scene DNA nor forestall a third-party culprit defense.

     More importantly, Christopher's DNA does not bear on

Timothy's guilt in the direct and substantial manner as that in

our prior cases.    The defendant in Commonwealth v. Draheim, 447

Mass. 113, 116 (2006), for instance, was a woman who allegedly

raped two teenage boys; following the alleged rape of each

youth, she gave birth to a daughter.   The Commonwealth sought to

obtain DNA samples from both daughters in order to determine

whether the teenagers were their biological fathers.      In that

case, if paternity were established, the daughters' DNA clearly

would have provided strong evidence that the defendant had raped

the complainants.   In Jansen, petitioner, 444 Mass. 112, 114

(2005), a defendant accused of aggravated rape sought a DNA

sample from a third party in order to determine whether the

third party's DNA was present on an object involved in the



     9
       The judge noted that genetic siblings share approximately
fifty per cent of each other's DNA.
                                                                      11


crime.10    If it were, the defendant would have been able to

present a third-party culprit defense.    See id. at 119 ("the

exculpatory value of this factual showing cannot be minimized or

deemed inconsequential").    By contrast, here, the "importance of

the evidence," Commonwealth v. Draheim, supra at 119, that is,

the relevance of Christopher's DNA to Timothy's guilt, is

attenuated.    The absence of DNA that matched Christopher's would

not be offered directly to prove Timothy's guilt, but would

serve only to bolster other evidence pointing to Timothy.       Cf.

United States v. Noble, 433 F. Supp. 2d 129, 130, 137 (D. Me.

2006) (denying motion to compel fingerprinting and DNA sampling

of nonsuspect witnesses, which was sought to "bolster[] their

credibility as witnesses" in prosecution of acquaintance).

     Nor does it appear that the absence of Christopher's DNA

would have any significant impact on the Commonwealth's ability

to present its case.    The Commonwealth has evidence that

fingerprints found at the scene belong to Timothy; an expert

could testify that fingerprints are unique even for identical

twins.     See Commonwealth v. Joyner, 467 Mass. 176, 182 (2014)

(noting expert testimony that fingerprints of twins "will not

have the same minutia points").     The Commonwealth also has a


     10
       The defendant had some factual basis to believe that the
third party's DNA was on the object due to the actions of a
private investigator. Jansen, petitioner, 444 Mass. 112,
114-115 (2005).
                                                                   12


videotape from a store security camera from which, it maintains,

a jury could conclude that, shortly after the stabbing, Timothy

cashed in lottery tickets taken from the victim's home.    The

Commonwealth stated during argument before us that Christopher

likely will be called as a trial witness.   Christopher could

testify at trial, as he did before the grand jury, that he and

his brother are fraternal twins, as well as to any other

relevant facts within his personal knowledge.   In addition, the

jury could consider his appearance to decide whether Christopher

appears identical to Timothy, and also whether there is any

likelihood that Christopher is the person depicted in the

security videotape.   By all these means, the Commonwealth is

capable of meeting its burden of proof, without intruding on the

constitutional rights of a third party who is not suspected of

having committed, or of aiding in the commission of, the crime.

    We note also that the Commonwealth's asserted need for

Christopher's DNA rests in part on speculation that Timothy will

present a third-party culprit defense, or at least will use the

fact that he has a twin to suggest doubt as to the source of the

DNA found under the victim's fingernails.   At this stage, such a

possibility is mere speculation.   If Timothy were to offer a

third-party culprit defense based on the brothers' twinship, or

use that twinship to suggest reasonable doubt, the Commonwealth

could seek, through a motion in limine, to prevent the issue of
                                                                  13


twinship from being introduced at trial.11   If Timothy were to

oppose such a motion, the calculus would be different, and at

that point, the Commonwealth well might have probable cause to

support a motion to compel the taking of a buccal swab from

Christopher.   As stated, to date there is no indication that

Timothy has any intention of offering such a defense.

     In sum, and having weighed the seriousness of the charges

against Timothy, as well as the minimally intrusive nature of a

buccal swab, we conclude that Christopher's DNA has not been

shown to be sufficiently relevant or important to the question

of Timothy's guilt or innocence so as to outweigh Christopher's

constitutional rights.

                                    Judgment reversed.




     11
       To be admissible at trial, third-party culprit evidence
"must have a rational tendency to prove the issue the defense
raises, and the evidence cannot be too remote or speculative."
Commonwealth v. Wood, 469 Mass. 266, 275 (2014), quoting
Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009).
