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SJC-11835

                  COMMONWEALTH   vs.    RONJON CAMERON.



     Berkshire.        September 10, 2015. - October 28, 2015.

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


  Rape.     Deoxyribonucleic Acid.     Practice, Criminal, New trial.



     Indictments found and returned in the Superior Court
Department on October 29, 1999.

     The cases were tried before Thomas J. Curley, Jr.; a motion
for a new trial, filed on October 8, 2009, was considered by
John A. Agostini, J., and a motion for reconsideration, filed on
January 15, 2013, was also considered by him.

     After review by the Appeals Court, 86 Mass. App. Ct. 1113
(2014), the Supreme Judicial Court granted leave to obtain
further appellate review.


     Laura Chrismer Edmonds for the defendant.
     Joseph A. Pieropan, Assistant District Attorney (Paul J.
Caccaviello, Assistant District Attorney, with him) for the
Commonwealth.
     Stephanie Roberts Hartung, for New England Innocence
Project, amicus curiae, submitted a brief.
                                                                     2


     CORDY, J.   In April, 2003, a jury found the defendant,

Ronjon Cameron, guilty on two indictments charging rape, in

violation of G. L. c. 265, § 22 (b).    As part of its case

against the defendant, the Commonwealth offered in evidence a

laboratory report regarding the presence of seminal residue on

the complainant's underwear.    The Commonwealth also offered

testimony to suggest that there had been a transfer of semen

from the defendant onto the complainant's underwear during the

rape.    Forensic deoxyribonucleic acid (DNA) testing performed

before trial indicated the presence of two male sources of the

seminal residue on the underwear.    Testing as to the primary

source excluded the defendant.    An expert testified on behalf of

the Commonwealth and described the secondary source as both

"inconclusive" and as neither including nor excluding the

defendant.    The defendant was convicted and sentenced to a term

of from twelve to sixteen years in State prison.

     In October, 2009, the defendant filed a motion for a new

trial, which was denied.    In January, 2013, he filed a motion to

amend and reconsider his motion for a new trial, based primarily

on DNA testing performed by an independent laboratory, Bode

Technology (Bode).    Bode's analysis, using short tandem repeat

(STR) testing on sixteen loci,1 revealed that the secondary


     1
       The test employed by Bode is a more discerning test than
was available at the time of the trial in 2003.
                                                                    3


source, which the Commonwealth's expert had, at trial,

attributed to a male donor, was in fact female DNA to which the

defendant was excluded as a possible contributor.   As part of

the same motion, the defendant argued that he had been deprived

of the effective assistance of counsel during trial because

trial counsel failed (1) to challenge the admissibility of the

DNA testimony and (2) to retain a DNA expert to explain that he

should have been excluded as the secondary source of the sample

at trial.   Without a hearing, a Superior Court judge (who was

not the trial judge) denied the defendant's motion, concluding

that "the defendant has not established that the newly available

evidence would 'probably have been a real factor in the jury's

deliberations'" (citation omitted).    In an unpublished decision

pursuant to its rule 1:28, the Appeals Court affirmed the

denial, determining that "the defendant has not met his heavy

burden of demonstrating that the judge abused his discretion in

denying his motion."   Commonwealth v. Cameron, 86 Mass. App. Ct.

1113 (2014).

    We granted the defendant's application for further

appellate review to consider his claim that the newly available

DNA evidence warrants a new trial.    Given the importance of the

existence of a secondary source of male DNA to corroborate the

testimony of the complainant that the defendant had raped her,

we conclude that the newly available DNA evidence that
                                                                     4


conclusively excludes the defendant as a possible donor would

likely have been a real factor in the jury's deliberations.

That evidence would have cast doubt on the credibility of the

complainant and rendered the Commonwealth's strongest

corroborative evidence inadmissible.     Had the new evidence been

available at trial, there is a substantial risk that the jury

would have reached a different conclusion.     The defendant,

therefore, must be given a new trial.2

     1.   Background.   The prosecution presented its case

primarily through the testimony of the complainant.     Defense

counsel called only one witness, the defendant.    As the

Commonwealth acknowledged during closing argument, "[C]learly

credibility is at the forefront of this case.    Credibility and

believability of [the complainant]."

     The complainant testified that, on September 13, 1999, the

defendant raped her, both vaginally and anally, in the apartment

of her then boy friend.   She testified that she thought the

defendant had ejaculated.   After the rape, the complainant put

her clothes back on and left the apartment.    At the time, the

complainant was wearing a dress, white shorts, and underwear.

     Two days after the alleged rape, the complainant went to

the police station to report the assault.    As part of the


     2
       We acknowledge the amicus brief submitted by the New
England Innocence Project.
                                                                    5


detective's preliminary investigation, he took the underwear and

the dress that the complainant said she had worn on the night of

the purported attack.3

     On September 20, seven days after the alleged rape, the

complainant went to a hospital.   At the hospital, the

complainant was examined by Dr. Mark Liponis.   Liponis testified

that the complainant reported that the man who raped her had

ejaculated, but that she was uncertain as to where he had

ejaculated.   The rape kit, with Liponis's findings, along with

the confiscated clothing, was transported to the State police

crime laboratory in Sudbury.

     Thomas Sendlenski, a chemist at the laboratory, testified

that the underwear showed signs of seminal residue, which was

collected for testing.   Sendlenski testified that the sample in

question could only have been deposited by a male.   The sample

was sent for DNA testing to Cellmark Diagnostics, a laboratory

which has since become Orchid Cellmark (Orchid).   Sendlenski

also testified about the scientific concept known as "transfer."

As he described to the jury, transfer is an exchange of

materials between two items that come in contact with one

another.




     3
       The complainant could not find the white shorts she had
been wearing.
                                                                    6


    At Orchid, Kathryn Colombo, a DNA analyst, performed DNA

tests on the seminal residue samples collected from the

underwear.   Colombo testified that she performed a Y-chromosome

STR test with regard to the sample she received.   She reported

that the data from that test indicated the presence of DNA from

at least two males.   As part of her testimony, Colombo relied on

a chart she created in connection with her analysis, which was

presented to the jury.   There was a primary source, "of which

[the defendant] was excluded," and a secondary source, about

which "no conclusion could be made."   Colombo went on to

explain:

    "And the secondary source, the fourteen observed at
    the DYS nineteen is consistent with the standard of
    [the defendant]. At the three eighty-nine one region,
    just by a coincidence, [the defendant] has the same
    type that was observed in the evidence sample, and it
    could be that that type is present and it's being
    masked by the primary source.

    "There was no type determined or found at the three
    eighty-nine two region, so we can't draw a conclusion
    at this region between the standard of [the defendant]
    and the evidence item.

    "And then, at the DYS three ninety region, [the
    defendant] is a twenty-four. We obtained just a
    twenty-one at that region for the evidence. There is
    no twenty-four present. However, we know that
    sometimes with these systems we may lose types. So, I
    -- I'm not saying that we did in this case, I'm just
    saying that we can't make that determination about the
    secondary source, we can't make any conclusion about
    the secondary source." (Emphases added.)
                                                                      7


    The prosecutor then asked, "So, is the bottom line, as far

as the secondary source goes, that your analysis is not able to

include him as a donor of seminal material to the underwear nor

exclude him?"    Colombo answered, "That's correct."

    During cross-examination of the complainant, defense

counsel impeached her testimony, challenging her memory of the

events of September 13 and her relationship with the defendant,

and questioning why it had taken so long for her to report the

rape.    The defendant has maintained his innocence throughout

these proceedings.    He testified that he did not see the

complainant on the day in question, and he denied any sexual

contact between himself and the complainant.

    2.    Discussion.   The defendant argues that he is entitled

to a new trial based on (1) the newly available DNA evidence,

excluding him as the source of any of the DNA residue on the

complainant's underwear; (2) ineffective assistance of counsel;

and (3) the admission of false evidence in violation of his

Federal and State due process rights.    When reviewing a lower

court's ruling on a motion for a new trial, we "examine the

motion judge's conclusion only to determine whether there has

been a significant error of law or other abuse of discretion."

Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011), quoting

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).      See Mass. R.

Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001).     "Judges
                                                                     8


are to apply the standards set out in Mass. R. Crim. P. 30(b)

rigorously," and "grant such a motion only if it appears that

justice may not have been done" (quotations and citations

omitted).   Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992).

Where, as in the present appeal, the motion judge "did not

preside at trial, we regard ourselves in as good a position as

the motion judge to assess the trial record" (quotation and

citation omitted).   Commonwealth v. Raymond, 450 Mass. 729, 733

(2008).

     In order to prevail on a motion for a new trial on the

basis of newly discovered evidence, a defendant must meet the

two-prong test set out in Grace, 397 Mass. at 305-306.      First,

the defendant must establish that the evidence is "newly

available" or "newly discovered."4   Commonwealth v. Cintron, 435

Mass. 509, 516 (2001).   Grace, supra at 305.    Second, the

defendant must show that the evidence "casts real doubt on the

justice of the conviction."   Grace, supra.     To show that newly

available evidence "casts real doubt on the justice of the

conviction," the defendant must show that "there is a

substantial risk that the jury would have reached a different

conclusion had the evidence been admitted at trial."      Id. at

     4
       "The standard applied to a motion for a new trial based on
newly available evidence is the same as applied to one based on
newly discovered evidence." Commonwealth v. Sullivan, 469 Mass.
340, 350 n.6 (2014), quoting Commonwealth v. Cintron, 435 Mass.
509, 516 (2001).
                                                                        9


306.       The inquiry is not "whether the verdict would have been

different, but rather whether the new evidence would probably

have been a real factor in the jury's deliberations."       Id.   The

Commonwealth contends only that the defendant has failed to

satisfy the second prong.5 We therefore only consider whether

the motion judge abused his discretion in concluding that the

newly available DNA evidence did not cast real doubt on the

justice of the defendant's convictions.

       The prosecution's case relied almost exclusively on the

complainant's testimony.       The only evidence before the jury that

had the potential to corroborate the complainant's testimony was

the DNA evidence.6      The complainant testified that she believed

the defendant had ejaculated, and the Commonwealth presented

evidence that there were stains on the underwear and then

produced expert testimony regarding the DNA testing of those

stains.       Taken in conjunction with the testimony elicited by the

Commonwealth regarding transfer, the jury could have concluded

       5
       To be newly available, the evidence must "have been
unknown . . . and not reasonably discoverable . . . at the time
of trial," Commonwealth v. Grace, 397 Mass. 303, 306 (1986). A
defendant must also "demonstrat[e] that any newly discovered
evidence is admissible." Commonwealth v. Weichell, 446 Mass.
785, 799 (2006). The motion judge found that the defendant had
satisfied these requirements, and the Commonwealth does not
dispute that finding on appeal.
       6
       Thomas Sendlenski, a chemist at the State police crime
laboratory, testified that no seminal fluid or sperm cells were
located on any items in the rape kit. There were also no bodily
fluids, hair, or any fibers noted on the dress.
                                                                  10


that there was a transfer of semen from the complainant to the

underwear in question as a result of a rape.   Although the

primary source of the DNA was not the defendant, the evidence of

a secondary male source from which the defendant could not be

excluded was powerfully corroborative.   Indeed, in his closing

argument, the prosecutor made good use of the existence of a

secondary source and of the uncertainty of its donor.

Specifically, he explained that "[w]hether or not [the

defendant] ejaculated is not relevant to the charges.    But it

does put part of the evidence in perspective, because if he did

ejaculate, you have to assume a transfer to [the complainant's]

underwear.   And while there is a primary source that excludes

him, there is another stain there which we can't tell you

excludes him and we can't tell you includes him.   We simply

can't tell because of the nature of the stain."

     Although defense counsel did not object to the admission of

the DNA evidence at trial,7 and indeed attempted to use its



     7
       Outside the presence of the jury, the trial judge
questioned the relevance of the deoxyribonucleic acid (DNA)
evidence, given that the secondary sample was "inconclusive."
In response, the prosecutor stated: "Well, I think it --
because there's another -- there's a secondary stain there. I
think that's actually the probative point." However, during
direct examination of Kathryn Colombo, an analyst at Orchid
Cellmark, the Commonwealth elicited two transcript pages of
testimony about the meaning and makeup of DNA. During this
testimony, the judge requested a sidebar discussion, and
questioned the prosecutor as to why he was eliciting such a
                                                                   11


uncertainty to the defendant's advantage, we note that, had it

been objected to, it should not have been admitted in the form

in which it was offered.    In order to weigh effectively the

value and admissibility of the DNA evidence at trial, we must

first characterize it.     Our recent decisions lend guidance in

characterizing DNA evidence and its concomitant potential effect

on a jury.

    The "admissibility of DNA test results should be determined

on a case-by-case basis."     Commonwealth v. Mathews, 450 Mass.

858, 871 (2008).   "Generally, a trial judge is accorded

'substantial discretion in deciding whether evidence is

relevant,' and whether relevant evidence should be excluded if

it is less probative than prejudicial."     Id. at 872 n.15,

quoting Commonwealth v. Talbot, 444 Mass. 586, 589 n.2 (2005).

Our cases distinguish between "nonexclusion" and "inconclusive"

DNA testimony.   Evidence that a defendant is not excluded could

suggest to the jury that a "link would be more firmly

established if only more [sample] were available for testing."

Commonwealth v. Nesbitt, 452 Mass. 236, 254 (2008).     Such

evidence "should not [be] admitted without accompanying

statistical explanation of the meaning of nonexclusion."

Commonwealth v. Mattei, 455 Mass. 840, 855 (2010).     On the other



response when the defendant was "excluded from one [sample] and
from the other sample [Colombo] can't draw any conclusions."
                                                                     12


hand, "inconclusive" results "provide no information whatsoever

due to insufficient sample material, contamination, or some

other problem."    Id. at 853.   Both the motion judge and the

Appeals Court determined that the Commonwealth properly

classified the DNA evidence as "inconclusive" rather than

nonexclusive.     We disagree.

    At trial, the Commonwealth, and Colombo, vacillated between

referring to the DNA analysis of the underwear stain as

"inconclusive" and as not excluding or including the defendant.

The latter description goes beyond mere inconclusive results,

and permits the jury to make an inference about the defendant's

relation to the sample.     Moreover, Colombo's testimony added to

the risk that jurors would draw such an impermissible inference

when she provided the jury with reasons why the defendant's DNA

might not have matched the DNA on the underwear.    We conclude

that the DNA evidence presented by the Commonwealth therefore

must be characterized as nonexclusion evidence.

    Due to the high risk of prejudice from the admission of

inconclusive DNA evidence, the Commonwealth, when presenting

expert testimony, should avoid the use of nonexclusion that is

not accompanied by a "statistical explanation of the meaning of

nonexclusion."    Mattei, 455 Mass. at 855.   Because there was no

such statistical explanation presented by the Commonwealth, the

jury were able to draw the inference that a link between the
                                                                   13


defendant's DNA and the DNA on the underwear "would be more

firmly established if only more [sample] were available for

testing."   Nesbitt, 452 Mass. at 254.8

     The Commonwealth further contends on appeal that it did not

rely on the DNA evidence to support the defendant's convictions,

as the complainant's testimony did not conclusively establish

that the defendant ejaculated.   We disagree.   We also conclude

that any prejudice from the admission of the DNA evidence was

not cured by defense counsel's cross-examination of the expert

witness, his closing argument, or the Commonwealth's concessions

made during its closing argument.9


     8
       Even if the evidence had been identified as inconclusive,
it was irrelevant and thus improperly admitted. In Mathews, we
determined that, when faced with a challenge to the sufficiency
of the Commonwealth's investigation, "the prosecutor is entitled
to introduce testimony to demonstrate that [DNA] tests were
performed and results (even if inconclusive) were obtained."
Commonwealth v. Mathews, 450 Mass. 858, 872 (2008). This often
turns on whether the defendant pursues a Bowden defense at
trial. See id. See also Commonwealth v. Bowden, 379 Mass. 472,
486 (1980). However, in circumstances where the defense is not
related to adequacy of the Commonwealth's investigation,
"testimony regarding inconclusive DNA results is not relevant
evidence because it does not have a tendency to prove any
particular fact that would be material to an issue in the case."
Commonwealth v. Cavitt, 460 Mass. 617, 635 (2011).
Here, defense counsel did not raise a Bowden defense, and
defense counsel's arguments did not relate to the adequacy of
the Commonwealth's investigation. Instead, defense counsel
sought to challenge the credibility of the complainant.
     9
       On cross-examination, Colombo admitted that the secondary
source "could include or exclude any number of males in this
world." Defense counsel also asked Colombo, "[a]nd you cannot
say to even a degree of reasonable scientific certainty that he
                                                                   14


    The Commonwealth's presentation at trial underscored the

importance of the DNA analysis to the case.   The theory offered

by the Commonwealth in its introduction of the DNA evidence

related to the stain was that the existence of a secondary male

sample, although not conclusively attributed to the defendant,

established that there was a transfer of semen from multiple men

to the complainant's underwear during the week in question.

From this, the jury were asked to infer that the stain resulted

from a semen transfer in the aftermath of what the complainant

claimed was a rape.   The jury also were permitted to infer that

the semen was that of the defendant.   Assuming the accuracy of

the more recent and sophisticated DNA testing performed by Bode,

which attributed the secondary source to a female and excluded

the defendant as a possible donor, we conclude that its



is the contributor to the secondary source, is that correct?"
Colombo stated that it was correct. During closing, defense
counsel stated, "There were two sources, two male sources,
neither of which anyone can ever say in a court of law was [the
defendant's] samples." Moreover, defense counsel used the DNA
results as an argument in favor of the defendant: "I can't
emphasize enough the value of DNA evidence in a case of this
nature. . . . In this case, you have powerful evidence of the
highest caliber, scientific reliability of DNA evidence that
exculpates [the defendant]." And, in the Commonwealth's
closing, the prosecutor acknowledged: "I'll tell you that the
DNA testing is a wash. It's important for a thorough
investigation, to be sure, but I'll suggest to you it also lets
you know that you need to rely upon other evidence in the case.
. . . So, while the DNA evidence may make it easier for you, I
suggest to you that you ought not look for the easy verdict.
Your obligation is to evaluate all the evidence and apply the
law the Court gives you."
                                                                  15


availability, coupled with its effect on the Commonwealth's

evidence at the 2003 trial, would have been a real factor in the

jury's deliberations.

     This case is, in many respects, similar to Commonwealth v.

Cowels, 470 Mass. 607 (2015), and Commonwealth v. Sullivan, 469

Mass. 340 (2014).    In Cowels, the Commonwealth relied heavily on

"inconclusive" serological evidence to bolster the testimony of

its key witness.10   Cowels, supra at 610-611, 620.    The evidence

presented was made up of blood samples taken from towels seized

from a bathroom in a witness's apartment.    Id. at 611.   The

defendants had purportedly visited the witness after committing

a murder, and washed in his bathroom.    Id. at 609.   We concluded

that the defendants were entitled to a new trial on the basis of

DNA testing performed fourteen years after the trial.      That

testing revealed newly discovered evidence that excluded both

the defendants and the victim as the source of the blood on the

towels, and that would have eliminated the towels as evidence

against the defendants, and could, ostensibly, also have been

used as a defense at a new trial.    Id. at 618-619.   We explained

that, "given the towels' role as one of the few pieces of

physical evidence that corroborated the testimony of a key

prosecution witness whose credibility was sharply challenged,

     10
       The Commonwealth's expert testified that the blood on the
towels "could belong to anybody." Commonwealth v. Cowels, 470
Mass. 607, 611 (2015).
                                                                       16


the towels likely were a real factor in the jury's

deliberations."   Id. at 608.    There was "consequently a

substantial risk that the outcome of the trial would have been

different had the towels been excluded altogether or

neutralized" through the introduction of the newly discovered

evidence.    Id. at 618-619.    In that case, the towels, like the

underwear here, served as the only physical evidence supporting

the key witness's testimony.

    In Sullivan, the defendant was convicted of murder in the

first degree and armed robbery.      Sullivan, 469 Mass. at 340.

Two witnesses, one testifying on behalf of the Commonwealth and

the other on behalf of the defendant, offered conflicting

testimony as to the killing.      Id. at 342.   The credibility of

the Commonwealth's witness was challenged.       Id. at 349.   The

only nontestimonial evidence presented by the Commonwealth to

corroborate its witness's account was a purple jacket, which was

purportedly worn during the murder.      Id. at 345.   A chemist

testified that blood was found on the cuffs of the jacket, and

such blood was "consistent" with that of the victim.       Id.     Years

after the defendant had been convicted, newly available DNA

evidence established that the residue on the cuffs was in fact

not blood.   Id. at 349.   We affirmed the allowance of the

defendant's motion for a new trial, agreeing with the motion

judge that the newly available DNA evidence would have
                                                                    17


"eliminated the purple jacket as evidence linking the defendant

to the crime, and the defendant would have been able to argue

that there was no physical evidence tying him directly to the

killing."    Id. at 350, 353.

       As was the case in Cowels and Sullivan, the value of the

newly available evidence in the present case is two-fold.

First, the evidence tends to bolster the argument that the DNA

test results presented at trial were erroneous, thereby

eliminating a piece of evidence that either did or could have

linked the defendant to the crime.    Second, the newly available

DNA evidence could be used at a new trial because it would tend

to contradict the testimony and undermine the credibility of the

prosecution's key witness, and would transform what had been the

prosecution's only physical evidence into evidence on behalf of

the defendant.    As expressed in Cowels and Sullivan, this dual

quality to the newly available evidence renders this case

different from many other cases involving newly available

evidence.    See Cowels, 470 Mass. at 618; Sullivan, 469 Mass. at

352.

       When evidence presented to the jury "is more credible than

any other evidence on the same factual issue and bears directly

on a crucial issue before the jury, such as the credibility of

an important prosecution witness," that evidence is likely to

function as a real factor in the jury's deliberations.    Cowels,
                                                                    18


470 Mass. at 620, quoting Commonwealth v. Tucceri, 412 Mass.

401, 414 (1992).

    Here, the Commonwealth recognized that the fact that there

appeared to be a secondary male source of the semen was

consistent with the complainant's testimony that the assailant

ejaculated during the rape and that the defendant was the

assailant, even if he could not be ascertained to be the

secondary source.   The new DNA evidence transforms the existence

of a secondary source as being consistent with the complainant's

testimony to being arguably inconsistent with that testimony,

and that may have been a real factor in the jury's evaluation of

credibility or, more precisely, whether they were sufficiently

convinced of the complainant's credibility to find it true

beyond a reasonable doubt.   This is particularly so where the

evidence presented by the Commonwealth was not overwhelming, and

the outcome of the case turned completely on the jury's

assessment whether the complainant or the defendant was more

credible.

    This is not a case in which the newly available DNA testing

merely impeaches the complainant's credibility.    Rather, the

newly available evidence "negates a key piece of physical

evidence that the prosecution relied on in arguing that the jury

should credit [the complainant's] testimony."     Cowels, 470 Mass.

at 621, quoting Sullivan, 469 Mass. at 352.     This is a case in
                                                                   19


which the Commonwealth acknowledges that credibility is at the

forefront.   There is, therefore, no question that the

complainant's testimony is the "linchpin" of the Commonwealth's

case.    Cowels, supra at 623.   The DNA evidence presented at

trial acted to tip the balance against the defendant.    Had the

new DNA evidence been available at the trial, there is a

"substantial risk that the jury would have reached a different

conclusion."   Grace, 397 Mass. at 306.11

    3.    Conclusion.   The judgments of conviction are vacated

and set aside, and the matter is remanded to the Superior Court

for a new trial.

                                      So ordered.




    11
        In light of this conclusion, we need not reach the
defendant's ineffective assistance of counsel and due process
claims.
