Commonwealth v. Mihail Lujan.

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

23-P-718

COMMONWEALTH

vs.

MIHAIL LUJAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial in the Superior Court, the

defendant, Mihail Lujan, was convicted of rape, in violation of

G. L. c. 265, § 22 (b). On appeal, the defendant argues that

his conviction must be vacated because his confrontation rights

under the Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights were violated

by the admission of testimonial hearsay through the testimony of

two substitute analysts.1 We agree and hold that substitute

analyst testimony dependent on the original, nontestifying

analysts' notes and reports was erroneously admitted in

1The Commonwealth concedes that the erroneous admission of
testimony by the two substitute forensic analysts was likely not
harmless beyond a reasonable doubt.
violation of the defendant's confrontation rights. Because the

testimony at issue was not harmless beyond a reasonable doubt,

we vacate his conviction.

Background. The defendant waived his right to a jury

trial, and a bench trial was held on April 24 through 25, 2023.

We summarize the evidence as presented to the trial judge. The

victim, Jane,2 was seventy-two years old in 2013. Jane had lived

in a nursing home since 2005. She suffered from dementia, could

not move without assistance, and could not communicate through

speech. On March 27, 2013, a nurse's aide, Elizabeth Martinez,

entered Jane's room to reposition her. Martinez clipped a

sensor alarm on a pad and placed it on Jane's chest, which would

activate a light outside the door if Jane made any movement.

Approximately five minutes after stepping away from Jane's room,

Martinez noticed that Jane's sensor alarm had activated.

When Martinez walked into Jane's room to check on her, she

saw that Jane's legs were dangling from the lowered side-rail,

her adult diaper was ripped open, her genital area was exposed,

and the defendant was standing near her "private area with his

hands on the bed." Martinez recognized the defendant as a

housekeeper who worked at the nursing home. Martinez testified

2 Pursuant to G. L. c. 265, § 24C, we refer to the victim by
a pseudonym.

2
that Jane was on her side, looking back at the defendant, "her

eyes were so red and vague," and she kept raising her finger in

the same way she typically communicated "no" nonverbally to

staff.

Jane was transported to the hospital for a sexual assault

examination. At trial, Kathleen Dennis, the sexual assault

nurse examiner, testified that her examination included visually

examining the vaginal area, inserting a speculum into the

vaginal area, and taking two sets of swabs of Jane's vaginal

walls and cervical areas, external genital area, and perianal

area.

The Commonwealth called Stephanie Waite, a forensic

scientist working for the State police crime laboratory (crime

lab), to testify regarding a screening test for the presence of

semenogelin3 conducted on vaginal swabs taken from Jane's sexual

assault examination. The screening test was conducted by

analyst Nicole Kronin, who did not testify at trial.4 Waite did

not observe the procedures Kronin used, though she did view the

test after it was completed. Waite testified that she

Waite defined "semenogelin" as "a part of seminal fluid
3

residue."

Kronin was no longer employed at the crime lab by the time
4

of the trial.

3
familiarized herself with the case and the testing by

"review[ing] the case file, which includes [Kronin's] notes, and

also the reports that she wrote." Waite further testified there

was a screening test done on the vaginal swabs and that, "based

on [her] review of the file," the result was positive for

semenogelin.

The Commonwealth also called Kathleen Gould, who was the

technical reviewer of the DNA testing conducted on the vaginal

swabs by original analyst Kimberly Bonner.5 Gould reviewed

Bonner's case file, including the worksheets that Bonner created

as she performed the testing. Gould then testified to her

opinion that "from Item 1-2-03.1, the vaginal swabs, a male DNA

profile was obtained [by Bonner]." Gould opined that Bonner

developed "a suitable profile" from the vaginal swabs that she

used to compare with the DNA standard developed from a saliva

swab of the defendant. Gould compared the DNA profile obtained

from the vaginal swabs and the DNA profile from the saliva swab

of the defendant and concluded that those profiles matched,

meaning that "the expected frequency of occurrence of this DNA

profile [found in] the vaginal swabs is approximately one in

5 Bonner, who did not testify at trial, was no longer
employed by the crime lab at the time of trial. Bonner
developed a male DNA profile from a vaginal swab obtained during
Jane's sexual assault examination. Bonner also developed a DNA
profile from a saliva sample the defendant provided.

4
1,335 male individuals, which excludes 99.92 percent of the male

population."

The defendant testified that when he entered Jane's room to

clean it, Jane's bed rail was lowered. He stated he was worried

she might fall down "because she was on the edge, and the

guardrail was down," and that he was raised to "immediately rush

to help [others]." He tried to push Jane back toward the center

of the bed, grabbing her towards the back and legs, and the

diaper "got loose" when he tried to move her. The defendant

testified that he did not see or touch her vagina, though he

"probably touched a little bit of her towards her back, toward

her thigh." The defendant said he then tried to raise the bed

rail, and Martinez walked into the room.

On April 25, 2023, the judge found the defendant guilty of

rape, in violation of G. L. c. 265, § 22 (b), and sentenced him

to from ten to twelve years in State prison. This appeal

followed.

Discussion. The Sixth Amendment to the United States

Constitution provides criminal defendants "the right . . . to be

confronted with the witnesses against [them]." The

confrontation clause bars the admission of "testimonial

statements" of an absent witness unless they are "unavailable to

testify, and the defendant ha[s] had a prior opportunity" to

5
cross-examine them. Crawford v. Washington, 541 U.S. 36, 53-54

(2004). This prohibition "applies only to testimonial hearsay,"

a phrase that contains two limits. Smith v. Arizona, 602 U.S.

779, 784 (2024), quoting Davis v. Washington, 547 U.S. 813, 823

(2006). First, the "testimonial" aspect of the clause limits

application to those statements whose primary purpose is to

"establish or prove past events potentially relevant to later

criminal prosecution" (citation omitted). Michigan v. Bryant,

562 U.S. 344, 356 (2011). Second, out-of-court statements

offered for proof of their truth are barred. See Smith, supra

at 785. "The prohibition against testimonial hearsay applies

'in full to forensic evidence.'" Commonwealth v. Gordon, 496

Mass. 554, 561 (2025), quoting Smith, supra at 783.

During the pendency of this appeal, the United States

Supreme Court addressed in Smith, 602 U.S. at 783, the

admissibility of a substitute expert's opinion dependent on the

accuracy of a non-testifying analyst's notes and reports. The

majority of the Smith Court concluded that "[w]hen an expert

conveys an absent analyst's statements in support of his

opinion, and the statements provide that support only if true,

then the statements come into evidence for their truth." Id.

"[T]he Confrontation Clause will bar [the] admission" of such

6
statements if they are also testimonial.6 Id. The Smith

majority emphasized that the government may not make an end run

around the confrontation clause by calling a substitute expert

in place of the original analyst where "the [substitute

expert's] proffered opinion merely replicates, rather than

somehow builds on, the [absent] testing analyst's conclusions."

Id. at 799. Under these circumstances, the Supreme Court

recognized the defendant had a "right to cross-examine the

testing analyst about what she did and how she did it and

whether her results should be trusted." Id.

After its decision in Smith, the Supreme Court granted

petition for writ of certiorari, vacated the judgment, and

remanded this court's unpublished decision in Commonwealth v.

Gordon, 103 Mass. App. Ct. 1112 (2023), for further

consideration. See Gordon v. Massachusetts, 145 S. Ct. 412

(2024). On September 17, 2025, the Supreme Judicial Court

issued its decision in Gordon, acknowledging that, as in Smith,

the substitute expert's testimony at issue merely replicated the

testing analyst's conclusions. Gordon, 496 Mass. at 555, citing

Smith, 602 U.S. at 798-799. The Gordon Court decided that a

nontestifying analyst's statements as contained in her notes,

6 The Smith Court did not review whether the statements at
issue were testimonial. Smith, 602 U.S. at 801.

7
and reviewed and relied on by the substitute expert, amounted to

testimonial hearsay.7 Gordon, supra at 567-569. The Gordon

Court then concluded that

"where a substitute expert's opinion is dependent upon the
truth of a nontestifying analyst's testimonial hearsay, the
confrontation clause bars admission of the opinion even if
the substitute expert is familiar with the testing
analyst's laboratory protocols and reviewed the analyst's
case file; an expert's opinion based on an absent analyst's
test results that depends also on the truth of the
analyst's testimonial hearsay as to the processes and
protocols she said she followed to obtain those results is
precluded by the confrontation clause."
Id. at 575. The Gordon Court explained that such substitute

analyst testimony "is prohibited because the relevant witness

against the accused, in a constitutional sense, is the absent

analyst." Id. The Gordon Court further concluded that

"[f]ollowing Smith, this aspect of our evidentiary rule,
which permits a substitute expert who is a supervisor of
the crime lab to provide an opinion regarding raw data
generated by an absent analyst that depends on the truth of
the testimonial hearsay of an absent analyst as to the
processes and protocols she says she followed to obtain the
data, no longer comports with the right of confrontation,
and the admission of such expert opinion testimony is an
error of constitutional dimension."
Id. at 584.

The court vacated Gordon's conviction after concluding that

the erroneous admission of the substitute analyst's testimony

7 The nontestifying analyst's "notes purported to document
the scientific methodologies [she] used, the practices and
procedures [she] followed, the tests [she] performed, and the
results [she] obtained." Gordon, 496 Mass. at 566.

8
was not harmless beyond a reasonable doubt because the testimony

was the only direct evidence of an essential element of the

crime. Id. at 586.

We agree with the parties in this case that the decisions

in Smith and Gordon require us to vacate the defendant's

conviction.8 Similar to Gordon, the testimony of both substitute

analysts in this case violated the defendant's confrontation

rights: the testifying analysts had no personal knowledge of

the testing at issue, and relied instead on the truth of the

absent analysts' testimonial hearsay in arriving at their

respective opinions. Specifically, Waite's testimony that a

screening test (performed by Kronin) on the vaginal swabs was

positive for semenogelin violated the confrontation clause

because Waite's opinion was "based on an absent analyst's test

results that depends also on the truth of the analyst's

testimonial hearsay as to the processes and protocols she said

she followed to obtain those results." Gordon, 496 Mass. at

575. Like the substitute analyst in Smith, Waite had no

personal knowledge of how the test was performed or whether

The court's decision in Gordon, which was dictated by
8

Smith, announced a new constitutional rule that applies to any
convictions that were not final prior to that decision. See
Gordon, 496 Mass. at 587. As the defendant's appeal was on
direct review when Smith and Gordon were decided, those
decisions apply to his case.

9
there was an error in handling the swabs; instead, she could

opine that there was a positive result on the vaginal swabs only

because she accepted Kronin's notes and reports as true. See

Smith, 602 U.S. at 798. See also Gordon, 496 Mass. at 576

(substitute expert's "opinion on the identification of the

controlled substance depended on the truth of [nontestifying

analyst's] out-of-court statements"). Here, the defendant had

no opportunity to cross-examine Kronin, the original analyst.

Similarly, Gould's testimony that the DNA profile that

Bonner developed from the vaginal swabs matched the defendant's

profile, as developed by Bonner from the defendant's buccal

swab, was based on testimonial hearsay -- Bonner's work product

-- and thus violated the defendant's confrontation rights. See

Gordon, 496 Mass. at 575.

i. Preservation of claim. Having determined that the

admission of material testimony by Waite and Gould was in error,

we turn to whether the defendant preserved his objections for

appeal and the standard of review that accordingly applies. See

Commonwealth v. Roe, 90 Mass. App. Ct. 801, 803 (2016).

Appellate rights as to trial matters are generally preserved by

making a contemporaneous objection. See Commonwealth v. Pisa,

384 Mass. 362, 366 (1981); Mass. R. Crim. P. 22. However, we

may also consider claims of error properly preserved through

10
other means, as long as the trial judge was alerted to the

nature of the alleged error. See Commonwealth v. Carnell, 53

Mass. App. Ct. 356, 359 (2001). Here, defense counsel properly

preserved the claimed error by objecting to the relevant

testimony and by moving to strike Waite's testimony about the

screening test.

Considered "in the context of the trial as a whole,"

defense counsel's objections adequately preserved the claimed

error of a violation of the defendant's confrontation rights

(citation omitted). Commonwealth v. Jones, 464 Mass. 16, 19 n.4

(2012). Counsel first noted concerns with the substitute

analyst testimony before trial while discussing the

Commonwealth's motion in limine to admit that testimony, raising

the issue of "testimonial hearsay." In his objection to Waite's

testimony about whether Kronin followed the appropriate lab

procedures, defense counsel stated the ground that "we're just

reprocessing hearsay into, I guess, an opinion" and raised the

concern that Waite lacked "personal knowledge of the test." He

raised this same objection to the testimony about the screening

test done on the vaginal swabs. In the defendant's motion to

strike testimony about that test, he argued that Waite could

only testify from "hearsay and speculation" and had "no actual

knowledge, except for the notes of Ms. Kronin, as to what

11
happened up until that point." Defense counsel concluded by

saying, "I think that this is essentially the same as [Melendez-

Diaz v. Massachusetts, 557 U.S. 305 (2009)], but the only

difference being instead of introducing a piece of paper that

says it, we call another witness to say it; but it's essentially

the same problem."

Defense counsel made the same objections to Gould's

testimony. These objections were adequate to preserve the

defendant's confrontation rights. See, e.g., Commonwealth v.

Depina, 456 Mass. 238, 248 n.8 (2010) (objection adequate to

preserve confrontation rights where it conveyed ground that

defendant lacked opportunity to cross-examine witness, despite

failing to mention the confrontation clause or cite Crawford,

541 U.S. at 54).

Although we conclude the defendant preserved the issues

raised in this appeal with timely objections, we note that in

Gordon, 496 Mass. at 586-587, the Supreme Judicial Court

indicated that the substitute analyst issue as presented may be

considered a preserved claim of constitutional error even absent

an objection, due to the futility of objecting to such testimony

before the Smith decision.

ii. Standard of review. Because the defendant properly

preserved his constitutional confrontation rights, the

12
Commonwealth bears the burden of showing that the erroneously

admitted testimony was harmless beyond a reasonable doubt. See

Commonwealth v. Tyree, 455 Mass. 676, 700 (2010). The

Commonwealth must show that the evidence did not contribute to

the verdict. See Commonwealth v. Hoyt, 461 Mass. 143, 156

(2011). The Commonwealth concedes it did not meet its burden in

light of the Supreme Judicial Court's decision in Gordon. We

agree.

The testimony at issue -- the positive screening test

conducted on the vaginal swabs, that Kronin followed procedures

in conducting that test, the development of a male DNA profile

from the swabs, and the match between that DNA profile and the

profile developed from the defendant -- were the Commonwealth's

only proof of penetration. The elements of rape include

penetration and force. Commonwealth v. Lopez, 433 Mass. 722,

726 (2001). Because the victim was unable to consent,

penetration was the central issue at trial. Evidence of semen

in the victim's vagina and DNA evidence have been sufficient for

a jury to find penetration beyond a reasonable doubt. See

Commonwealth v. Fowler, 431 Mass. 30, 33-34 (2000) (sperm found

in victim's mouth sufficient to show oral penetration);

Commonwealth v. Tavares, 27 Mass. App. Ct. 637, 642 (1989)

(semen, twig, and dirt found in victim's vagina sufficient to

13
show penetration). Without the admission into evidence that

there was seminal fluid on the vaginal swabs, or that a male DNA

profile matching the defendant was developed from the vaginal

swabs, the Commonwealth could not prove penetration.

We thus conclude that the erroneous admission of the

testimony of substitute analysts Waite and Gould was not

harmless beyond a reasonable doubt and therefore requires that

we vacate the judgment of conviction.9

Conclusion. The judgment is vacated, the verdict is set

aside, and the case is remanded to the Superior Court to allow

the Commonwealth to retry the defendant if it so chooses.

Judgment vacated.

Verdict set aside.

By the Court (Desmond,
Brennan, & Smyth, JJ.10),

Clerk

Entered: December 10, 2025.

9 We reiterate that the judge did not have the benefit of
either Smith or Gordon when he ruled on the issues relevant to
this appeal.

10 The panelists are listed in order of seniority.

14