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13-P-1576                                            Appeals Court

              COMMONWEALTH    vs.   CHRISTOPHER KOSTKA.


                             No. 13-P-1576.

            Suffolk.     May 9, 2014. - July 25, 2014.

              Present: Green, Meade, & Sullivan, JJ.


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



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


     John H. Cunha, Jr., for the defendant.
     Teresa K. Anderson, Assistant District Attorney (Ursula A.
Knight, Assistant District Attorney, with her) for the
Commonwealth.


     GREEN, J.   In Commonwealth v. Draheim, 447 Mass. 113, 119

(2006), the Supreme Judicial Court held that "so long as the

Commonwealth satisfies the requirements of both the Fourth

Amendment [to the United States Constitution] and Mass. R. Crim.

P. 17(a)(2), 378 Mass. 885 (1979), it should be permitted the
                                                                    2


same access as defendants to potentially beneficial evidence

from third parties," including third parties who are not

suspects in a crime.   Accordingly, in Draheim, the Commonwealth

was allowed to obtain saliva samples from two alleged male

victims of alleged statutory rapes and from two children borne

by the defendant, in order to allow deoxyribonucleic acid (DNA)

testing to determine whether either of the alleged victims had

fathered either child.

     This appeal presents a variation on the theme.   Christopher

Kostka (Christopher) is the twin brother of Timothy Kostka

(Timothy), who has been indicted on charges of murder in the

first degree and armed home invasion, arising from the stabbing

death of Barbara Coyne.   The Commonwealth obtained an order from

the Superior Court compelling Christopher to provide a buccal

swab to allow the Commonwealth to determine whether Timothy and

Christopher are identical or fraternal twins.   If (as the

Commonwealth anticipates) DNA testing establishes that the two

are fraternal twins, the Commonwealth proposes to use the test

results to establish that biological material recovered from the

victim's fingernails must have been contributed by Timothy (and,

in particular, to exclude Christopher as a possible

contributor).   Christopher appeals from a judgment of contempt

entered in the Superior Court, following his refusal to comply

with the order.   See Lenardis v. Commonwealth, 452 Mass. 1001,
                                                                    3


1001 (2008) ("A nonparty directed to provide evidence pursuant

to [Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979),] can

challenge the propriety of the order by refusing to comply with

it and appealing from any order of contempt that results").   For

the reasons that follow, we discern no error in the issuance of

the order compelling Christopher to provide a buccal swab, and

accordingly we affirm the judgment.

     Background.   At approximately 10:00 A.M. on the morning of

April 16, 2012, Richard Coyne discovered his sixty-seven year

old mother Barbara on the floor of her bedroom, bleeding

profusely.   Emergency responders transported her to Boston

Medical Center, where she died at 10:37 A.M.   An autopsy

revealed that multiple stab wounds caused her death.   A swab of

her hands and fingernails yielded biological material, which DNA

testing revealed to have come from two or more individuals. 1,2

     Investigation of the crime scene yielded, among other

forensic evidence linking Timothy to the crime, bloody

fingerprints matching Timothy's on an overturned jewelry box in

the victim's bedroom.   In addition, videotape obtained from a

     1
       The victim is included as a possible contributor to the
mixture.
     2
       A supplemental affidavit of criminalist Joseph Ross,
submitted after the entry of the judgment of contempt and
included in the record upon allowance by the Superior Court
judge of the Commonwealth's motion to expand the record,
discloses that "Timothy Kostka is partially included and unable
to be excluded as a possible contributor to the mixture."
                                                                    4


nearby corner store showed Timothy engaging in a transaction at

a lottery machine at approximately 10:03 A.M.; information

obtained from the Massachusetts State Lottery Commission

thereafter revealed that winning lottery tickets cashed at the

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

other tickets gathered as evidence from the victim's home.

     As observed in the introduction, Timothy and Christopher

are twin brothers.   The Commonwealth believes that they are

fraternal twins.   Indeed, Christopher testified before the grand

jury that he and Timothy are fraternal twins. 3   However, in the

affidavit of criminalist Joseph Ross submitted in support of the

Commonwealth's motion to compel, Ross explains that

     "if Timothy Kostka and Christopher Kostka are actually
     identical twins, they would share the same DNA profile. If
     it is determined that they have different DNA profiles,
     then it can be inferred that they are not identical twins." 4




     3
       The record includes no evidence regarding the twins'
physical resemblance to one another, though various comments
made by counsel at the hearing on the Commonwealth's motion to
compel suggest that they are different in appearance. There is,
however, no basis on the present record to determine the extent
of any difference in their appearance, and no expert opinion or
other evidence explaining the significance of differences in
appearance in determining whether twins are identical or
fraternal.
     4
       In his supplemental affidavit, see note 2, supra, Ross
asserts that "[c]omparison of [Timothy's and Christopher's] DNA
profiles is the only way to conclude whether they are identical
or fraternal twins." The record contains no evidence suggesting
otherwise.
                                                                     5


See Commonwealth v. Curnin, 409 Mass. 218, 218 n.1 (1991) ("The

DNA of each person, except for identical twins, is unique

. . . ").

     In a thoughtful and detailed written memorandum of

decision, a judge of the Superior Court allowed the

Commonwealth's motion to compel Christopher to provide a saliva

sample, finding that "the only definitive way the Commonwealth

can establish that Timothy Kostka and Christopher Kostka are

truly fraternal twins and not identical twins is through DNA

testing" and that a determination that Timothy Kostka's DNA is

unique is highly relevant to the question of his guilt.     Upon

Christopher's refusal to comply with the order compelling him to

provide a saliva sample, a judgment of contempt entered and this

appeal followed. 5

     Discussion.     In Commonwealth v. Draheim, 447 Mass. at 118,

the Supreme Judicial Court considered the "novel question

. . . whether or in what circumstances the Commonwealth can

obtain a sample of physical evidence from the body of a third

party" not suspected of a crime. 6   The court held that, where


     5
       A single justice of this court stayed execution of
Christopher's sentence pending the appeal. See Matter of a
Grand Jury Subpoena, 411 Mass. 489, 498-499 (1992).
     6
       The question was identified, but left open, in Jansen,
petitioner, 444 Mass. 112, 120-121 (2005), overruled in part on
other grounds by Commonwealth v. Dwyer, 448 Mass. 122, 140 n.22
(2006), in which the court affirmed an order allowing the
                                                                   6


third parties rather than suspects are involved, in order to

respect their constitutional rights "the Commonwealth must show

probable cause to believe a crime was committed, and that the

sample will probably provide evidence relevant to the question

of the defendant's guilt. . . .   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."   Id. at 119.

     The Superior Court's order reflects correct application of

the Draheim standard.   "In this case, the Commonwealth's burden

to show probable cause that a crime has been committed is easily

met because [Timothy] has been indicted."   Ibid.   The

Commonwealth's burden to "prove additionally that the saliva

samples will probably provide evidence relevant to [Timothy's]

guilt," ibid., is met by the judge's findings that "the only

definitive way the Commonwealth can establish that Timothy

Kostka and Christopher Kostka are truly fraternal twins and not

identical twins is through DNA testing" 7 and that determination

that Timothy's DNA is unique as a contributing source of the DNA

recovered from the crime scene is relevant to the question of


defendant in a criminal case to obtain a buccal swab from a
third party for the purpose of developing evidence thought to be
exculpatory of the defendant.
     7
       The defendant does not argue that this finding is clearly
erroneous, and it finds support in the record in the
uncontroverted Ross affidavit and supplemental affidavit.
                                                                    7


Timothy's guilt.   Finally, the judge considered the influence of

the additional factors of "the seriousness of the crime, the

importance of the evidence, and the unavailability of less

intrusive means of obtaining [the evidence]," Commonwealth v.

Draheim, supra, observing that the crimes of armed home invasion

and murder are unquestionably serious, that the evidence is

plainly important to determine whether Timothy and Christopher

are fraternal or identical twins, and that DNA testing is the

only means to do so.   There was no error in the allowance of the

Commonwealth's motion to compel; accordingly, entry of the

judgment of contempt on Christopher's refusal to comply with the

order compelling him to provide a buccal swab was appropriate.

                                    Judgment of contempt
                                      affirmed.
