Evidence – DNA

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Where (1) DNA evidence obtained without a warrant was suppressed, (2) following the defendant’s indictment as a youthful offender, the same judge granted the commonwealth’s motion to compel a second buccal swab, and (3) the DNA evidence originating from that second swab was admitted at trial, the order compelling a second DNA sample should be affirmed because there was no error in the judge’s determination that the commonwealth established probable cause to support the compelled post-indictment DNA collection.

“On a November morning in 2018, three males broke into a home in Methuen. During the home invasion, one of them raped the victim. Subsequent investigation led to the arrest of Adonis Carvajal, then a juvenile. After taking him into custody, police subjected him to a buccal swab to obtain a sample of his deoxyribonucleic acid (DNA) — without a warrant.

“The Commonwealth later conceded that this initial swab was unlawful, and a Juvenile Court judge suppressed the resulting DNA evidence. Nonetheless, following the defendant’s indictment as a youthful offender on multiple charges, the same judge granted the Commonwealth’s motion to compel a second buccal swab. The DNA evidence originating from that second swab was admitted at trial. The defendant was convicted of aggravated rape and other offenses.

“On appeal, the defendant challenges the order compelling a second DNA sample and the jury instructions on ‘serious bodily injury’ as an element of aggravated rape. We discern no error in the judge’s determination that the Commonwealth established probable cause to support the compelled postindictment DNA collection, and we affirm that order.

“Although the jury instructions were not erroneous, the general verdict does not reveal which theory the jury accepted in finding the defendant guilty of aggravated rape. Because one of the alternate theories was not supported by sufficient evidence, the conviction cannot stand. Accordingly, we vacate the conviction of aggravated rape and remand the matter to the Superior Court. On remand, the Commonwealth may elect to proceed to sentencing on the lesser included offense of rape or retry the defendant on the aggravated rape charge limited to the underlying felony theory.”

Commonwealth v. Carvajal (Lawyers Weekly No. 10-104-25) (25 pages) (Georges, J.) A motion to compel the defendant to provide a deoxyribonucleic acid sample was heard by Kerry A. Ahern, J., and the cases were tried before her. Chaleunphone Nokham on appeal for the defendant; Kathryn L. Janssen for the commonwealth; Taylor Henley and Sarah LoPresti submitted a brief for youth advocacy division of the Committee for Public Counsel Services and another, amici curiae (Docket No. SJC-13728) (Aug. 28, 2025).

Click here to read the full text of the opinion.