COMMONWEALTH OF MASSACHUSETTS

Worcester, ss.                                               SUPERIOR COURT DEPARTMENT

                                                                     INDICTMENT NOs. 83-103391 to 83-103394

______________________________

                                                            )

      COMMONWEALTH OF             )

         MASSACHUSETTS                  )  COMMONWEALTH'S OPPOSITION TO

                                                            )  RECONSIDERATION OF ORDER FOR

                                                            )  DEFENDANT’S EIGHTH MOTION FOR

                                                            )  NEW TRIAL

) 

                                                            )                      

        BENJAMIN LAGUER,               )

                  Defendant                           )

______________________________)

The Commonwealth hereby opposes “Defendant’s Motion For New Trial, Or, Alternatively, For Dismissal of the Indictment” and his request for oral argument on the grounds that: (1) defendant is attempting to relitigate an issue that jurors rejected two decades ago; (2) he has failed to meet his burden of showing that he has unearthed newly discovered evidence; (3) he has to failed to meet his burden of showing that justice has not been done; and (4) he has forfeited his right to present further claims to a court that he admittedly deceived.

Prior Proceedings

          On January 30, 1984, a jury convicted Benjamin Laguer of aggravated rape, assault and battery, unarmed robbery, and breaking and entering. (Indictment Nos. 83-103391 to 83-013394). Judge Mulkern sentenced him to life in prison on the aggravated rape charge, saying “this is one of the most vicious sexual assaults on a particularly fragile person that I have ever seen.” (V/617).    

          On July 24, 1985, the Appeals Court affirmed defendant’s convictions in a published opinion (first appeal). Commonwealth v. Laguer, 20 Mass. App. Ct. 965, 965 (1985).  On October 30, 1985, the Supreme Judicial Court denied an application for further review. Id., 396 Mass. 1103 (1985).

          On April 5, 1985, defendant filed his first post-conviction motion attacking his conviction. After a hearing, Judge Mulkern denied that motion on October 7, 1985.

          On October 15, 1985, defendant filed a second new trial motion.   

          On  December 31, 1986, defendant filed a third new trial motion.

          On March 27, 1987, defendant filed a fourth new trial motion. 

          On December 11, 1987, defendant filed his fifth new trial motion, styled as a “Petition For Release From Confinement” under Mass. R. Crim. P. 30(a). 

          Also on December 11, 1987, a federal magistrate in the U.S. District Court for Massachusetts summarily denied defendant’s petition for a writ of habeas corpus.

          On February 24, 1989, defendant filed his sixth new trial motion, “Petition For New Trial,” and in April, 1989, he filed an amendment to this motion. 

          After an evidentiary hearing on May 22, 1989, limited to evidence regarding trial counsel’s failure to test defendant’s blood type, Judge Mulkern denied defendant’s sixth “Petition For New Trial,” as amended, on June 2, 1989. 

          Defendant filed an appeal, which was transferred to the Supreme Judicial Court on its own motion.  On May 14, 1991, in a published opinion (second appeal), the Supreme Judicial Court vacated the denial of the sixth new trial motion and remanded the case to the Superior Court for an evidentiary hearing on just one issue, a claim of jury bias.  Commonwealth v. Laguer, 410 Mass. 89, 90 (1991).

          On remand, after an evidentiary hearing, Judge Mulkern again denied defendant’s sixth new trial motion, and defendant appealed. On March 31, 1994, in a published opinion (third appeal) the Appeals Court affirmed the denial of defendant’s sixth new trial motion. Commonwealth v. Laguer, 36 Mass. App. Ct. 310 (1994). On May 26, 1994, the Supreme Judicial Court denied an application for further review. Id., 418 Mass. 1103 (1994).

          On November 12, 1996, defendant filed a motion for access to evidence for DNA testing, with no supporting affidavit.  On November 27, 1996, Judge Travers summarily denied that motion.

           On May 22, 1997, defendant filed his seventh new trial motion, “Petition For New  Trial.” On September 17, 1997, after Judge Mulkern had retired, Judge Travers declined to act on the seventh new trial motion “because [the] [seventh] motion raised no issue that could not have been raised previously, including the direct appeal and motions for new trial.” 

          On September 24, 1997, defendant filed a Motion To Reconsider the court’s refusal to act.  On October 23, 1997, Judge Travers denied that motion with an endorsement stating: “The defendant, who is pro se, is informed that, a ‘refusal to act,’ endorsement is an action of the court which means that because the defendant could have raised an issue at trial, or upon appeal, or in prior post conviction proceedings and did not do so (or did so and they were rejected) they are treated as waived and cannot be raised.” 

          On January 19, 1999, in an unpublished opinion (fourth appeal), the Appeals Court affirmed Judge Travers’ refusal to act on defendant’s seventh new trial motion on grounds of waiver. Commonwealth v. Laguer, 46 Mass. App. Ct. 1108 (1999). On March 26, 1999, the Supreme Judicial Court denied an application for further review. Id., 429 Mass. 1033 (1999).

          On January 13, 2000, defendant filed a “Motion For An Order Authorizing DNA Testing Of Physical Evidence,” which was eventually allowed by Judge Hillman.  After a long series of related motions, on March 21, 2002, defendant’s expert, Dr. Edward Blake of Forensic Science Associates, reported the DNA testing results, which showed that defendant’s DNA profile, which occurs in fewer than 1 in 100 million people, matched the male DNA profile found in “pooled sperm” taken from the victim.

The Trial

Over twenty years ago, “[o]n the evening of July 12, 1983, a man, whom the victim identified as the defendant, dressed only in jogging shorts and ‘gym’ socks, entered [the victim’s] apartment, struck her, threw her to the floor, and repeatedly raped her for over a period of eight hours. He robbed her as well,” and threatened to kill her if she told anyone who he was. Commonwealth v. Laguer, 410 Mass. 89, 90 (1991). “The victim was a fifty-nine-year-old white woman who, at the time she was attacked, lived in the apartment adjacent to an apartment occupied by the defendant.” Id.  Before the rapist left the victim’s apartment, he tied her hands behind her back with a cord from the victim’s phone and tied her feet with a hairdryer cord. (II/144-50,203-19). “Immediately following the attack upon her, the [victim] was hospitalized, during which time she identified the defendant as her attacker.” Commonwealth v. Laguer, 20 Mass. App. Ct. 965, 965 (1985).  “[An] [athletic] sock was found in the [victim’s] apartment,” and “various witnesses had seen . . . [similar gym] socks” found in defendant’s apartment.” Id. at 966; Laguer, 410 Mass. at 91.   When the police came to defendant’s apartment after the victim identified him at the hospital, he answered the door wearing the same outfit the rapist had worn two days before, jogging shorts and gym socks, and he had a “fresh,” “very deep scratch on his back, all across toward his [right] arm,” (III/345-47,380).  He told the police the scratch was from a nail at a bar, but at trial he said it was from splinters or nails on a picnic table. (III/357-414; IV/508,538-39).

“The principal issue at trial was the identity of the attacker.”  Laguer, 410 Mass. at 91.  At his four-day trial, defendant testified on his own behalf and presented three alibi witnesses, his two half-sisters and an acquaintance who did not even know his name.  (III/419-IV/542).  Defendant stressed at trial that he could not be the rapist because a partial fingerprint that the Leominster police found on the base of the victim’s telephone did not match his prints.

Eighth Motion For New Trial

In his most recent motion for new trial, defendant claims that he has unearthed newly discovered evidence that casts doubt on his convictions.  Specifically, he asserts that the Commonwealth failed to turn over additional evidence of four fingerprints that the State Police found in 1983 on the base of the victim’s telephone. He maintains that he would have been acquitted had jurors known that these additional prints, like the partial print referred to at trial, also did not match his prints.

I. The defendant’s eighth motion attacking his conviction should be denied where is attempting to relitigate an issue that jurors rejected twenty years ago. 

For the second time, defendant is attempting to demonstrate that fingerprint evidence points to his innocence. At trial, the defense adduced evidence concerning a partial print found on the base of the victim’s telephone.  That partial print did not match defendant’s prints.  Counsel argued extensively that defendant could not have been the rapist because the partial print did not match his.  Apparently rejecting that argument, the jurors found him guilty as charged.  Twenty years later, defendant seeks to litigate this point once again. This he cannot do.

“Once the judicial process has run its course -- through pretrial motions, trial, post-trial motions and one or two levels or appeal -- the community’s interest in finality comes to the fore. The regular course of justice may be long but it must not be endless.” Commonwealth v. Amirault, 424 Mass. 618, 637 (1997).  “The mere fact that if the process were redone, there might be a different outcome, or that some lingering doubt about the first outcome may remain, cannot be a sufficient reason to reopen what society [and the victim’s family] ha[ve] a right to consider closed.” Id. “There must be a reasonable moment for a judgment to become final and a time beyond which further challenges must be barred.” Reddick v. Commonwealth, 381 Mass. 398, 403 (1980); Mackey v. United States, 401 U.S. 667, 689-91 (1971) (Harlan, J., concurring).  The judgment on this issue became final when the jury returned its verdict twenty years ago.

The record shows that jurors were unmoved by this issue of non-matching prints. Detective Carignan testified on cross-examination that he “did not find any prints to match” defendant’s prints. (III/368) (emphasis added). He further testified that he found only one small partial fingerprint at the crime scene, on the base of the victim’s telephone. (III/402).   In closing argument, defense counsel repeatedly focused on the absence of forensic evidence linking the defendant to the crime scene: “There is not one piece of evidence, physical or otherwise that puts Benji Laguer in apartment 102 between the hours of nine p.m. and five a.m. on July 12^th. Nothing.” (II/547); “No fingernail clippings, no blood.” (III/550); “Detective Carignan said he printed that place, dusted all over the place. Were any prints found in the bathroom? . . . No prints in the bathroom, none.” (III/552); They didn’t dust that [the chair jammed under the door]. No prints on that.” (III/552); “Did anything match? Says in here [the lab analysis report] they took underpants, did an analysis, blood analysis, saliva analysis, sperm analysis.  What more do they want? Nothing, nothing matches, nothing comes up. There has got to be a reason for it.” (III556).

Through the instant motion defendant simply wants a second chance to present the same argument to another jury. The Supreme Judicial Court forbids such an outcome. The defendant simply has not presented a “sufficient reason to reopen what society has a right to consider closed.” Amirault, 424 Mass. at 637.

II. The instant motion for new trial should be denied where the defendant has failed to meet his burden of showing that he has unearthed new evidence that is of such weight as to cast real doubt on the verdicts.

Defendant seeks to avoid the principle of finality as expressed in Amirault by claiming that he has newly discovered evidence that merits another trial. Because this cumulative evidence showing more non-matching fingerprints is not of sufficient weight to qualify as newly discovered evidence the Superior Court should deny relief.

“The burden [is] on the defendant to show that the evidence in support of his motion was newly discovered.” Commonwealth v. Donahue, 6 Mass. App. Ct. 971, 972 (1979). “The failure to produce evidence that is essentially cumulative of the Commonwealth's evidence does not justify a new trial.” Commonwealth v. Lucien, 440 Mass. 658, 670 (2004).    Because the evidence here is cumulative, defendant has not met his burden.

The four non-matching prints found by the State Police do not differ in kind from the one partial non-matching print found by Det. Carignan. Commonwealth v. LeFave, 430 Mass. 169, 177 (1999) (holding that expert’s testimony was not “new” where it did “not differ in kind” from the testimony at trial).  The evidence at trial showed that the base of the telephone bore a single partial print that did not match the defendant’s. The so-called “newly discovered evidence” showed that the base of the telephone had four prints that did not match the defendant’s.  Such cumulative evidence “tends to carry less weight than new evidence that is different in kind.” Commonwealh v. Scanlon, 412 Mass. 664, 680 (1992).  Where the four non-matching prints do not “differ in kind” from the one partial print  found on the same phone, they are not “weighty,” Davis v. Boston Elevated Ry. Co., 235 Mass. 482, 495 (1920), and “cast[] no real doubt on the justice of the conviction[s].” Commonwealth v. Grace, 397 Mass. 303, 305 (1996).  Therefore, the new trial motion should be denied for this reason as well.

III. The instant motion for new trial should be denied where the defendant’s post-trial admission to tampering with evidence and a conclusive DNA test pointing to his guilt show that justice has been done.

Even if Amirault does not bar the instant claim, and even if the evidence may qualify as “newly discovered,” defendant’s admission that he tampered with his court-ordered saliva sample and the conclusive DNA test results that defendant himself requested, which point to his guilt, show that justice has been done in this case. Mass. R. Crim. P. 30 (b).

A new trial may be granted under Mass. R. Crim. P. 30 (b) “at any time if it appears that justice has not been done.” Id. “A judge has considerable discretion as to the method by which a motion for a new trial is to be decided.” Commonwealth v. Huenefeld, 34 Mass. App. Ct. 315, 323, rev. denied, 415 Mass. 1103 (1993). “‘A party has no right to insist that oral evidence be heard,’” and “[t]here is no constitutional error in deciding the motion for new trial on affidavits.” Commonwealth v. Stewart, 383 Mass. 253,259,260 (1981) (citations omitted). ‘“The primary purpose of [Rule 30(c)(3)] is to encourage disposition of post conviction motions upon affidavit.’” Id. at 260 (quoting Mass. R. Crim. P. 30, Reporter’s Notes 1979). “The judge may decide the motion on the basis of affidavits without further hearing, ‘if no substantial issue is raised by the motion or affidavits.’” Mass. R. Crim. P. 30 (c)(3), quoted in  Stewart, 383 Mass. at 257. Apart from the evidence offered at trial, the evidence accrued in the record during the exceptionally long post-trial proceedings in this case demonstrate that justice has indeed been done.

Defendant’s admitted misconduct while awaiting trial demonstrates that he was trying to conceal his guilt by tampering with a court order to obtain evidence for trial.  Before trial, on 10/21/83, the Commonwealth filed a Motion For A Saliva Sample, which defense counsel opposed on the grounds that Laguer would be “providing evidence that could tend to incriminate him.” Judge Donohue allowed the motion, and Det. Carignan brought Laguer’s saliva sample to the crime lab on 10/24/83, but the test results were “inconclusive,” which meant that there was no evidence to link Laguer’s blood type to the bloodstained items found in Mrs. Plante’s apartment.

As it turned out, defendant admitted, in court records and under oath at the Parole Board, that in 1983 he “mixed another inmate’s saliva with his own to confuse the results” of his court-ordered saliva sample, to avoid any blood-type evidence.  See John Taylor, And The Truth Shall Set Him Free. Or Will It? Esquire, May 1994, at 97, attached to Laguer’s  pro se Petition For Revision Of Sentence.  In addition, at his Parole Board hearing on June 12, 2003, board members asked Laguer if he had tampered with his court-ordered saliva sample. In response, Laguer admitted under oath that he “did not give the prosecutor a sample that he sought” -- he gave a sample from “another inmate.” Such conduct bespeaks a guilty mind. See Commonwealth v. Jackson, 417 Mass. 830, 843 (1994).

If the evidence at trial and defendant’s tampering with evidence left any lingering question about his guilt, the DNA tests he requested in 2000 erased any doubt whatsoever. On January 13, 2000, defendant filed a “Motion For An Order Authorizing DNA Testing Of Physical Evidence,” which was eventually allowed by Judge Hillman.  On March 21, 2002, defendant’s expert, Dr. Edward Blake of Forensic Science Associates, reported the DNA testing results, which showed that defendant’s DNA profile, which occurs in fewer than 1 in 100 million people, matched the male DNA profile found in “pooled sperm” taken from the victim, which included “sperm fractions” found on cotton swabs used to obtain evidence from the victim’s vaginal, rectal, and oral cavities.

In summary, defendant has failed to meet his burden under Rule 30 (b) of demonstrating that justice has not been done. If anything, the post-trial proceedings in this case, which defendant himself initiated, demonstrate to a mathematical certainty that he committed the crimes of which he was convicted.  As such, further litigation is unnecessary and pointless.

IV.       The instant motion for new trial should be denied where the defendant’s post-trial admission to tampering with evidence precludes him from obtaining any relief from the Superior Court.

Defendant’s admitted misconduct in this case is of sufficient gravity that this Court should not permit any further attacks on his convictions. In the interests of judicial integrity, the Superior Court should deny him relief.

Acts of “obstructing and interfering with the course of justice” by corrupting evidence in direct violation of a court order are “criminal contempts.” Opinion of the Justices, 301 Mass. 615, 618-19 (1938).   See Commonwealth v. Winer, 380 Mass. 934, 935 (1980) (defendant held in contempt for failing to produce evidence in violation of a court order).  Courts are established “to do justice,” Beit v. Probate and Family Court Dept., 385 Mass. 854, 859 (1982), and “[e]very judge has certain inherent powers” which he must exercise “as necessary to secure the full and effective administration of justice.”  Commonwealth v. O’Neil, 418 Mass. 760, 763-64 (1994). “These inherent powers include the authority ‘to make the court’s orders effective.’” Beit,  385 Mass. at  859. “Those who are interested in perverting rights and escaping the consequences of evil conduct have an interest to obstruct the course of justice in the courts.” Blankenberg v. Commonwealth, 272 Mass. 25, 31-32 (1930).  Laguer’s intentionally dishonest “‘conduct constituted both an affront to the court’s dignity and a perversion of the court’s purposes.’” Miaskiewicz v. Commonwealth, 380 Mass. 153, 158 (1980), cited in Britt v. Rosenberg, 40 Mass. App. Ct. 552, 554 (1996).  “Not to condemn this sort of conduct, as a consequence of which ‘the very temple of justice has been defiled . . . does a disservice to the bench, the bar, and the public.” Hodge v. Klug, 33 Mass. App. Ct. 746, 759-60 (1992) (Brown, J. concurring) (citations omitted).

“A party must come before the court with ‘clean hands’ . . . ‘to prevent [him] from benefiting from his dishonesty.’” Fisher v. Fisher, 349 Mass. 675, 677 (1965).   “The maxim of unclean hands comes from the courts of equity.  But the principle prevails in courts of law.” Olmsted v. United States, 277 U.S. 438, 483-84 (1928) (Brandeis, J., dissenting), cited in Scattaretico v. Puglisi, 60 Mass. App. Ct. 138, 143 n.17 (2003).  In short: you can’t cheat at the game and then claim it wasn’t fair.  See Dotson v. Bravo, 202 F.R.D. 559,573  (N.D. Ill. 2001).

Defendant should not be allowed to benefit from his admitted misconduct by availing himself of this Court’s discretion to grant him relief.  Represented by counsel at his June, 2002 Parole Hearing, Laguer testified under oath that he had intentionally violated a court order and tampered with his saliva sample, so that no blood-type evidence could link him to the crime. Nonetheless, the defendant argues that because of “the astonishing fact that . . . the prosecution presented no physical evidence whatsoever that linked Mr. Laguer to the crime scene,” the undisclosed evidence of four non-matching prints “‘might have affected the outcome of the trial.’” (See Defendant’s Memo at 2,18).  Failing to acknowledge Laguer’s misconduct is like “ignoring the proverbial elephant sitting in the courtroom.” State v. Papasavvas, 751 A.2d 40, 91 (2000). A judge may not “avert his eyes from the elephant in the courtroom when it is the judge’s job to size up the elephant.” Mitchell v. United States, 526 U.S. 314, 341 (1999).   “It would be a reproach to the administration of justice if a defendant . . . could pollute the atmosphere of a trial and then turn this to his advantage” to get a new one. Commonwealth v. Lewis, 346 Mass. 373, 379 (1963).  Therefore, relief should be denied for this reason as well.

Conclusion

The Superior Court has four independent and sensible reasons to deny defendant’s eighth motion for new trial: (1) he is attempting to relitigate an issue that jurors rejected two decades ago; (2) he has failed to meet his burden of showing that he has unearthed newly discovered evidence; (3) he has to failed to meet his burden of showing that justice has not been done; and (4) he has forfeited his right to present further claims to a court that he admittedly deceived.  Therefore, the Superior Court should deny defendant’s eighth motion for new trial in the sound exercise of its discretion.

Commonwealth of Massachusetts 

By its attorneys,

______________________

Joseph J. Reilly III,

Assistant District Attorney

BBO # 415885

Courthouse, Room 220

2 Main Street

Worcester, MA 01608

(508) 757-2786

______________________

Sandra L. Hautanen,

Assistant District Attorney

BBO # 225965

Courthouse, Room 220

2 Main Street

Worcester, MA 0160

Dated: May 19, 2004

(508) 757-2786

CERTIFICATE OF SERVICE

I, Sandra L. Hautanen, Assistant District Attorney, do hereby certify that on this 19th day of May, 2004, copies of the attached document and exhibits were served upon counsel for the defendant in this case by first class mail to the following:

James C. Rehnquist, Esq.

Kathleen Luz, Esq.

Joshua L. Stayn, Esq.

Miriam Kim, Esq.

Goodwin Proctor LLP

Exchange Place

Boston, MA 02109-2881

_______________________

Sandra L. Hautanen