Commonwealth v. Thomas Cradock.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

20-P-748

COMMONWEALTH

vs.

THOMAS CRADOCK.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of aggravated

rape, armed assault with intent to murder, assault and battery

by means of a dangerous weapon causing serious bodily injury,

and aggravated assault and battery causing serious bodily

injury. The defendant filed a motion for a new trial on grounds

of ineffective assistance of counsel, which the trial judge

denied. Concluding that there was sufficient evidence of the

defendant's identity as the assailant, any error in the

admission of expert testimony was not prejudicial, the

prosecutor's closing argument was proper, and the record does

not support the defendant's newly raised ineffective assistance
claims, we affirm the judgments and the order denying the motion

for a new trial.

Background. In the early morning on a Wednesday in

September 2011, the victim drove her two dogs to a dog park.

The victim parked her car and walked her dogs toward the park.

On her way to the park, the victim walked down the street where

the defendant lived. As the victim approached the park, she

dropped the dogs' leashes to allow the dogs to go ahead of her.

The victim's next memory was waking up in a hospital about a

month later.

Later that morning, around 7 A.M., a woman looked out of

her back porch and saw the victim's naked, bloody body in the

vacant lot next door to her home. She called 911 and her

husband waited near the lot until police, fire, and emergency

medical personnel arrived. The victim was brought to the

emergency room at Massachusetts General Hospital for treatment.

The victim's eyes were swollen shut, and she required staples in

her head. She had suffered a skull fracture, which caused her

brain to swell and required a piece of her skull to be removed.

She also had fractured nasal and orbital bones. The victim

could not speak and had to be intubated. As a result of her

injuries, the victim required significant rehabilitation to

relearn basic living and communication skills.

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A sexual assault nurse examiner examined the victim. The

victim had abrasions, redness, and lacerations on her cervix and

genitals. Swabs of her vaginal, perianal, anorectal, and

external genital areas all tested positive for the presence of

semen. Sperm cells from internal vaginal and anorectal swabs

matched the defendant's deoxyribonucleic acid (DNA). The

victim's underwear had been torn off her body and recovered by

police a few feet from where she was attacked. A stain on the

exterior of the victim's underwear tested negative for the

presence of semen. A serologist from the Boston Police

Department Crime Laboratory testified for the Commonwealth that

she would have expected to find semen on the victim's underwear

if the underwear had been worn after the semen was deposited.

At trial and on appeal, the defense argued that the

defendant's sperm was deposited in the victim's body when they

had consensual sexual intercourse several days before the

attack. The defendant testified that, on an unknown Saturday

night in September 2011, he had unprotected sexual intercourse

with an unknown woman in her late twenties with "light brown"

hair and a "petite" build. The defendant did not know the woman

with whom he had consensual sex and did not "remember specific

details about the woman that night." When shown a photo array,

the victim did not identify the defendant. When shown a

photograph of the victim, the defendant did not recognize her.

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Discussion. 1. Sufficiency of the evidence. We review

the sufficiency of the evidence to determine "whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt"

(citation omitted). Commonwealth v. Latimore, 378 Mass. 671,

677 (1979). The defendant contends that the evidence was

insufficient to establish his identity as the assailant. See

Commonwealth v. Brown, 490 Mass. 171, 176 (2022). "[T]he

Commonwealth does not have to present evidence that exclude[s]

every reasonable hypothesis of innocence" (quotation and

citation omitted). Commonwealth v. French, 476 Mass. 1023, 1025

(2017). Where the defendant's guilt is proved solely through

the presence of physical evidence, "[t]he Commonwealth does have

to present evidence that reasonably excludes the hypothesis that

the [physical evidence] was left at some time other than when

the crime was committed." Id.

Here, the defendant lived just a few blocks from the crime

scene, and the victim had walked down his street just minutes

before she was attacked. The attack occurred on a Wednesday

morning between 4 A.M. and 7 A.M., and biological evidence was

collected from the victim's body shortly after 3 P.M. on the

same day. Swabs from the victim's vaginal, perianal, and

anorectal areas all tested positive for the presence of semen,

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and sperm cells from the vaginal and anorectal swabs compared to

the defendant's DNA at astronomical match probabilities.1 This

was sufficient evidence for a rational juror to conclude that

the defendant was the victim's assailant, absent evidence

reasonably excluding any alternative explanation.

At trial, the defendant intimated that he may have had

consensual sex with the victim days before the attack. However,

the Commonwealth presented evidence reasonably excluding this

entirely speculative hypothesis. The defendant testified that

he had unprotected, consensual sexual intercourse with a random

woman about whom he did not "remember specific details," in a

bathroom at a private party at an unknown location in September

2011. When shown a photograph of the victim, the defendant did

not recognize her. The defendant "believe[d it] was a Saturday

night," but did not testify whether this sexual encounter

occurred before or after the date the victim was attacked. Even

if we assume it occurred the Saturday before the attack, the

victim testified that she did not know the defendant, did not

recognize him from his photograph, and never had consensual sex

with him. The victim's testimony was sufficient to permit the

jury to find that the defendant's semen was not deposited at

1 The DNA characteristics of these sperm cells are "expected
to be found approximately one in 160 quintillion Caucasians, one
in 100 sextillion African-Americans and one in 280 quintillion
Southeastern Hispanics."

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some time other than when the rape was committed. See

Commonwealth v. Scott, 470 Mass 320, 324-325 (2014).

Furthermore, the physical evidence excluded any reasonable

possibility that the victim was the unidentified woman from the

party. There was powerful evidence that the defendant's semen

was present on the anorectal swab, as well as inside the

victim's vagina. However, the defendant did not testify that he

had anal intercourse with the unidentified woman from the party.

Although the swab of the victim's external genitals also tested

positive for sperm, the serologist testified that she forwarded

only the anorectal and vaginal swabs for DNA testing because

"they are from internal cavities" and "the internal cavities are

the most probative samples in terms of proving penetration."

This evidence rendered implausible the defendant's theory that

his semen was deposited during a consensual sexual encounter

that occurred several days earlier. In addition, the serologist

testified that she would have expected semen to be present on

the victim's underwear if the underwear had been worn after the

semen was deposited. Yet, despite other stains indicating they

had been worn inside-out before they were torn from her body

during the attack, the victim's underwear tested negative for

the presence of semen. Thus, we conclude that the Commonwealth

presented sufficient evidence to reasonably exclude the

defendant's hypothesis that the defendant's sperm cells had been

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left inside the victim several days before the attack. See

French, 476 Mass. at 1025.

2. Expert testimony. The defendant argues that the

Commonwealth went too far at trial rebutting his explanation for

the presence of his DNA by improperly offering "time-since-

intercourse" evidence. The serologist testified generally about

time-since-intercourse based on her professional experience and

an unpublished, non peer-reviewed internal study performed at

the Boston Police Crime Laboratory. The serologist's testimony

related to how long after an alleged sexual assault and before

evidence collection a sperm cell could remain "intact," defined

as retaining its tail. The serologist testified that she had

never observed intact sperm cells from a kit collected over

twenty-four hours after an alleged assault.

"[I]t is not uncommon for a State police chemist to opine

on the life expectancy of sperm cells." Commonwealth v. Rice,

441 Mass. 291, 299 (2004). Here, however, the defendant asserts

that the serologist was not qualified to offer such an opinion

because her testimony was based on "personal anecdotal

experience" rather than reliable scientific methodology. The

defendant further asserts that the testimony wrongfully gave the

impression that his defense was "scientifically impossible." We

need not reach these arguments because, even assuming there was

error, it was not prejudicial. As discussed, there was

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compelling evidence of the defendant's guilt, and his hypothesis

that his semen may have been deposited during consensual sex

with the victim several days before she was attacked was refuted

by the evidence that his semen was present on the anorectal swab

and by the evidence that there was no semen on the victim's

underwear. Moreover, the defendant presented his own expert,

who testified that the scientific literature shows that sperm

cells can remain intact for five days after intercourse or even

longer, contradicting the serologist's testimony. Thus, even if

the serologist's testimony was improper, any "error was not

prejudicial," especially "given the overwhelming evidence of the

defendant's culpability." See Commonwealth v. Mason, 485 Mass.

520, 537 (2020).

3. Closing argument. The defendant contends that the

trial prosecutor misstated the evidence when she argued in

closing that the victim's underwear was "negative for semen."2

Because the defendant did not object to the challenged remark,

we review any error for a substantial risk of a miscarriage of

justice. See Commonwealth v. Shruhan, 89 Mass. App. Ct. 320,

326 (2016). "The defendant has a considerable burden to

2 The defendant also argues that the prosecutor's closing
improperly relied on the serologist's erroneously admitted time-
since-intercourse testimony. The defendant was not prejudiced
by the prosecutor's reference to that testimony, for the same
reasons he was not prejudiced by any error in admitting the
testimony.

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demonstrate that an alleged error, or combination of errors, by

the prosecutor in closing argument, caused a substantial risk of

a miscarriage of justice." Id. "In closing argument,

[p]rosecutors are entitled to marshal the evidence and suggest

inferences that the jury may draw from it" (quotation and

citation omitted). Commonwealth v. Parker, 481 Mass. 69, 74

(2018).

Although a white stain on the victim's underwear tested

positive for acid phosphatase, the serologist explained that

acid phosphatase can be found in both seminal fluid and vaginal

secretions. Thus, the serologist examined the stain for sperm

cells, found none, and concluded that the test was "confirmatory

negative" for the presence of semen. The prosecutor's statement

that the underwear tested negative for semen was supported by

the serologist's testimony. Thus, the closing argument was

properly based on a reasonable inference from the evidence and

was a fair argument. See Commonwealth v. Roy, 464 Mass. 818,

824 (2013) (inferences need only be reasonable and possible, not

necessary or inescapable).

4. Ineffective assistance of counsel. The defendant

asserts that trial counsel was ineffective because she did not

present expert testimony that countered the Commonwealth's case

that the defendant deposited the sperm in the victim's body when

he attacked her. We review a judge's decision on a motion for

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new trial for error of law or abuse of discretion. See

Commonwealth v. Tavares, 491 Mass. 362, 365 (2023). Where the

motion judge was also the trial judge, "we give special

deference to the judge's findings of fact and the ultimate

decision on the motion" (quotation and citation omitted).

Commonwealth v. Corey, 493 Mass. 674, 684 (2024). To prevail on

his claim of ineffectiveness of counsel, the defendant must show

that: (1) counsel's conduct fell "measurably below that which

might be expected from an ordinary fallible lawyer"; and

(2) this conduct "likely deprived the defendant of an otherwise

available, substantial ground of defence." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). "Thus, a defendant must

prove both deficient performance and prejudice." Commonwealth

v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012).

Specifically, the defendant contends that trial counsel was

ineffective for failing to ensure that an expert examined the

condition of degraded sperm cells on slides prepared by the

Commonwealth, failing to cross-examine the serologist on this

topic, and failing to pursue independent testing of the victim's

underwear. As the defendant acknowledges, he did not raise

these arguments in his motion for a new trial. We disagree with

the defendant's assertion that the factual basis of these claims

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appears indisputably on the trial record. We therefore decline

to address them.

Judgments affirmed.

Order denying motion for a
new trial affirmed.

By the Court (Shin, Ditkoff &
Brennan, JJ.3),

Clerk

Entered: December 12, 2024.

3 The panelists are listed in order of seniority.

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