Commonwealth v. Olivio Braun.

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-618

COMMONWEALTH

vs.

OLIVIO BRAUN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of rape, and

a judge subsequently found him guilty of being a habitual

offender. Concluding that deoxyribonucleic acid (DNA) evidence

was properly admitted and the prosecutor's misstatement during

closing argument did not sway the jury's verdict, we affirm the

rape conviction. Because there was insufficient evidence to

support a finding that the defendant was a habitual offender, we

reverse that conviction.

Discussion. 1. Rape conviction. a. Hearsay. The

defendant asserts that the judge erroneously admitted hearsay

statements about the collection of vaginal swabs from the

victim, without which there would have been no foundation to

admit DNA evidence. He argues that the DNA evidence influenced
the jury's decision to convict him, thus creating a substantial

risk of a miscarriage of justice. We disagree.

The victim testified that the defendant was the uncle of

one of her younger brothers, and he visited her home a few times

per month. On April 28, 2017, the victim returned home from

work, showered, and fell asleep on her bed in her towel. When

the victim woke up around 4 A.M., she felt the defendant's mouth

on her vagina. The victim screamed for her mother, who chased

the defendant out of the apartment. The victim was taken to a

hospital, where her vaginal area was examined and swabbed by a

sexual assault nurse examiner (SANE).

The Commonwealth entered into evidence hospital records

describing the victim's examination and swabbing by the SANE

nurse. Two Massachusetts State police chemists testified to

tests performed on what were identified as "swabs that were

collected . . . from the vaginal area, the external genital

area, [and] the perianal area." Without objection by the

defendant, one chemist testified that she prepared the sample

from the genital swab, and the other chemist testified that she

conducted DNA tests on the sample. The second chemist also

testified about the results of her DNA testing.

The defendant first argues that the expert testimony

regarding DNA results was improper because the chemists relied

on hearsay contained in the hospital records, without which they

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could only say that "DNA was found on swabs of unknown origin."

He relies on Commonwealth v. Jones, 472 Mass. 707, 716 (2015),

to support his contention that the DNA testimony was admitted

without proper foundation. In Jones, DNA evidence was

improperly admitted where there was no testimony from a

percipient witness regarding the victim's hospital examination

or the collection of swabs. See id. at 717 n.3 ("information

concerning how such swabs were collected should be admitted

through the testimony of a person, such as, without limitation,

the nurse or the victim, who has personal knowledge of the

specific 'rape kit' examination at issue"). Here, the victim

testified that swabs of her vaginal area were taken during the

SANE examination. This testimony provided the necessary

foundational link between the swabs referenced in the hospital

records and the DNA evidence. 1

The defendant also asserts that the chemists' lack of

personal knowledge of the swab collection and handling

procedures deprived him of meaningful cross-examination about

the reliability of the DNA results. He cites Commonwealth v.

1 We note that in Jones, the crux of the defense was that there
was no vaginal penetration, so the source location of the swab
and the reliability of DNA results were central issues. See
Jones, 472 Mass. at 710, 717. Here, the defendant's theory of
defense, at least initially, was simply that he had "a
consensual [sexual] encounter" with the victim, and he did not
challenge the reliability of forensic testing or DNA results at
trial.
3
Tassone, 468 Mass. 391, 402 (2014), in support of this

proposition. In Tassone, Massachusetts State police chemists

testified to DNA results generated by a private laboratory. See

id. at 401. Here, by contrast, the chemists testified to

analysis and testing they performed themselves, and neither

commented on the work done by the other. To the extent the

defendant argues he was unable to cross-examine the chemists

about the chain of custody from the hospital to the State police

laboratory, we discern no risk of a miscarriage of justice where

the defendant made no effort to contest the chain of custody and

where he could have cross-examined the Brockton police evidence

officer, who testified at trial that he was responsible for

collecting evidence and transporting it to the lab for analysis.

b. Closing argument. The defendant also argues that the

prosecutor's misstatement of the DNA evidence during her closing

argument constituted prejudicial error. "In closing argument, a

prosecutor may not 'misstate the evidence or refer to facts not

in evidence.'" Commonwealth v. Walters, 472 Mass. 680, 703

(2015), S.C., 479 Mass. 277 (2018), quoting Commonwealth v.

Joyner, 467 Mass. 176, 188-189 (2014).

The defendant contends that the prosecutor misstated the

DNA evidence when she said,

"That little DNA thing that traces back to being [the
defendant]. . . . It comes from a man. Only a man.

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"And there was only one man with his mouth on [the
victim's] vagina that night. Not one in eight. Not one
of, you know, 10 million. There was one. And that's where
he's sitting."

The defendant argues that, because the probability that a

randomly selected man would match the major profile on the swab

-- as the defendant did -- is only one in eight, it was wrong to

say that the DNA "trace[d] back to [the defendant]."

When a defendant timely objects to a prosecutor's

statements made during closing argument, we review "to determine

whether the closing argument was prejudicial error."

Commonwealth v. Garcia, 75 Mass. App. Ct. 901, 901 (2009). "To

decide whether the errors at trial amounted to prejudicial

error, we must determine, after pondering all that happened

without stripping the erroneous action from the whole, [whether]

the judgment was not substantially swayed by the error"

(quotations omitted). Commonwealth v. Peno, 485 Mass. 378, 399

(2020).

The DNA evidence was properly admitted with expert

testimony explaining its statistical significance. See

Commonwealth v. Mattei, 455 Mass. 840, 850-852 (2010). In

closing argument, defense counsel argued forcefully that the DNA

evidence had little probative value because one of every eight

males in the population -- and possibly even the victim's

younger brother, who had the same paternal lineage as the

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defendant -- had the same DNA. Taken in context, the thrust of

the prosecutor's argument in response was that, putting the DNA

statistical probabilities aside, the defendant was the only man

with his mouth on the victim's vagina that night.

Although the DNA evidence bolstered the credibility of the

victim, given its statistical significance, the DNA evidence

itself could not single out the defendant, and it could not

sustain a conviction of rape because DNA found on the victim's

external genital area is not evidence of penetration. The

victim's testimony was the only evidence of penetration. The

prosecutor's statement that the DNA "traces back" to the

defendant was perhaps inartful, but given the state of the

evidence, the defendant's closing argument, and the judge's

instruction that no matter what the attorneys said during

closing arguments, the juror's recollection of the evidence

controlled, we are confident that any error in the prosecutor's

argument did not affect the jury's understanding of the DNA

evidence and did not substantially sway the jury's verdict. See

Peno, 485 Mass. at 399.

2. Habitual offender conviction. 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).

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Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To

establish the defendant's status as a habitual offender, the

Commonwealth was required to prove beyond a reasonable doubt

that the defendant was the same Olivio Braun who had two

qualifying convictions. See G. L. c. 279, § 25; G. L. c. 278,

§ 11A. Identity is an essential element that the Commonwealth

must prove beyond a reasonable doubt. See Commonwealth v.

Koney, 421 Mass. 295, 302 (1995). "Mere identity of name is not

sufficient to indicate an identity of person." Id.

Here, the Commonwealth introduced Department of Correction

(DOC) records showing that an Olivio Braun with a specific date

of birth, had two qualifying convictions. The judge took

judicial notice of testimony from the underlying jury trial on

the rape charge that the defendant had that same date of birth.

We agree with the defendant that this was error. See Koney, 421

Mass. at 302 (separate trial requirement precludes judge from

relying on evidence presented at jury trial to establish

identity of defendant during habitual offender trial). Because

the defendant did not object to the jury trial evidence, we

"determine whether the error created a substantial risk of a

miscarriage of justice." Commonwealth v. Aviles, 461 Mass. 60,

72 (2011).

We are not persuaded by the Commonwealth's argument that

the result would have been no different based on other evidence

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of the defendant's identity. The Commonwealth points to a

witness who testified at the bench trial that he arrested the

defendant on a warrant for domestic assault and battery in 2009.

However, the witness did not provide any biographical

information on the defendant or specifics about the 2009 crime

to establish a link to the qualifying convictions in the DOC

records. The Commonwealth also contends that the trial judge

could have compared the photograph in the DOC records with the

man sitting in the courtroom. The photograph is small, grainy,

poorly lit, of low quality, and predates the habitual offender

trial by eight years. Moreover, nothing in the record indicates

the judge actually compared the photograph to the defendant at

the bench trial. Finally, as the Commonwealth conceded at oral

argument, the judge could not properly consider the defendant's

statements regarding his age and "native language" during the

jury-waiver colloquy as evidence connecting him to the DOC

records. 2

Ultimately, we conclude that without the judicially noticed

facts, the evidence was insufficient to establish the

defendant's identity as the same Olivio Braun in the DOC records

with two qualifying convictions. Accordingly, the defendant is

2 In its brief, the Commonwealth argued that evidence from the
colloquy was "consistent with the Department of Correction
records."
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entitled to an acquittal on the habitual offender portion of the

indictment. 3 See Commonwealth v. Kurko, 95 Mass. App. Ct. 719,

722-723 (2019) (conviction premised on legally insufficient

evidence always creates substantial risk of miscarriage of

justice).

3. Conclusion. On the count charging the defendant with

rape, the judgment is affirmed. On the count charging the

defendant as a habitual offender, the judgment is reversed, the

finding is set aside, and judgment shall enter for the

defendant. Because the defendant was sentenced pursuant to the

habitual offender statute, the sentence must be vacated, and the

case is remanded for resentencing on the conviction of rape.

So ordered.

By the Court (Massing,
Henry & Brennan, JJ. 4),

Clerk

Entered: November 8, 2023.

3 Because the evidence was insufficient to convict the defendant
on the habitual offender portion of the indictment, we need not
address his argument that he should not have been indicted and
convicted under the habitual offender statute because his two
prior convictions were not separate and distinct offenses.
4 The panelists are listed in order of seniority.

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