CPCS Criminal Defense Training Unit Case Summaries
Week of February 14, 2011
This week's summaries were written by Paul Rudof
Commonwealth v. Heang, No. SJC-10376 (February 15, 2011)
Link to Opinion: http://www.socialaw.com/slip.htm?cid=20467&sid=120
After Judith Finnerty sold marijuana from her home to an individual she identified as Phap Buth, Buth came back moments later with two other individuals in ski masks, hooded sweatshirts, and black gloves, who then shot and killed Finnerty's husband and daughter. Affirming the defendant's convictions for two counts of first degree murder on theories of deliberate premeditation and felony-murder, the SJC first concludes that the following evidence was sufficient to sustain those convictions: Buth, the defendant, and a third co-defendant were together shortly before the shootings; they were in close proximity to one another after the shootings; there was forensic evidence, including strong DNA evidence, linking the defendant to clothing found with the firearm that a ballistics expert opined was the gun used in the killings; and the defendant made admissions to the co-d's girlfriend.
At trial, the defendant requested a Daubert-Lanigan hearing regarding the admissibility of a ballistic expert's opinion that a particular gun (found with clothing with the defendant's DNA on it) was the source of the bullets that killed the two victims. The defendant specifically relied on a 2008 National Research Council (NRC) Report that discussed the problems with the type of toolmark analysis relied upon by the Commonwealth's expert. The trial judge denied the request, but ruled that the trooper could testify" to a degree of scientific certainty" that the projectiles came from the seized weapon but must also testify that he could not exclude the possibility that the bullets were fired from another nine millimeter firearm. The expert ultimately offered such testimony on direct examination, though on cross-examination and redirect failed to so qualify his opinion.
On appeal, the defendant challenges the judge's denial of his request for a Daubert-Lanigan hearing as well as the admission of the expert opinion testimony. The SJC first discusses at length the specific theories underlying toolmark analysis of ballistics, outlining the difference between "class," "subclass," and "individual" toolmark characteristics. The Court also acknowledges the two potential problems inherent in this analysis, as laid out in the NRC Report and elsewhere: (1) that "there is little scientific proof supporting the theory that each firearm imparts 'unique' individual characteristic toolmarks onto projectiles and cartridge cases"; and (2) that "the matching of individual characteristics . . . is highly subjective," based on "intuition and experience" with "little scientific data demonstrating the reliability of results." Ultimately, however, the SJC concludes that the judge's refusal to hold a Daubert-Lanigan hearing did not constitute an abuse of discretion, given that this type of testimony has "long been deemed admissible by this court." Additionally, the judge's ruling that placed a limitation on the trooper's testimony was "a reasonable attempt to ensure that the expert witness fairly informed the jury of his opinion as to match and the limitations of that opinion." Finally, the Court finds no "prejudicial error" in the admission of the unqualified opinion on cross and redirect examinations, given the entirely of the expert's testimony.
The Court then goes on to establish "the following guidelines" for ballistics experts seeking to offer such opinions to follow when testifying in future cases: (1) prior to trial, "the examiner must adequately document the findings or observations that support the examiner's ultimate opinion . . . whether in the form of measurements, notes, sketches, or photographs," which must be provided in discovery; (2) before offering his or her opinion at trial, the expert must first explain the theories and methodologies underlying the opinion, including but not limited to "how toolmarks are imparted onto projectiles and cartridge casings; the differences between class, subclass, and individual characteristics of firearms; and the different types of resulting toolmarks that examiners look for and compare"; and (3) the expert may offer his or her opinion that a particular projectile came from a particular firearm "to a reasonable degree of ballistic certainty," and should avoid language such as "practical impossibility," "absolute certainty," and "reasonable degree of scientific certainty."
Practice Tip: Defense counsel should continue to request Daubert-Lanigan hearings when the Commonwealth seeks to present a so-called toolmark expert, given the infirmities that the NRC Report and now the SJC has recognized with such analysis. Although the Court here found that this trial judge did not abuse his discretion in denying such a hearing, a trial judge would certainly be within her discretion to grant such a hearing, and given the specifics of a particular examiner's qualifications (or lack thereof) and method of analysis, such a challenge could potentially bear fruit in seeking to exclude, limit, or diminish the analyst's opinion. Additionally, defense counsel should consult with independent experts in this area in order to help mount such challenges to the Commonwealth's experts' opinions.
Practice Tip: This is also useful for discovery requests. As stated above there may still be an issue as to whether the examiner has adequately documented "the findings or observations that support the examiner's ultimate opinion".
Practice Tip: Defense counsel should continue to object to the "... reasonable degree of ballistic certainty" opinion. It is still subjective and not based on science. As the law nationwide evolves it will be up to defense counsel to preserve this issue with supporting documentation [case law and/or scientific research].
Practice Tip: This case can be added to the recent cases that acknowledge the reliability of the National Academy of Sciences Strengthening Forensic Science in the United States: A Path Forward Report. It could convince a reluctant court to take judicial notice of it for use in cross examination of forensic witnesses.
Next, the Court rejects the argument that a Commonwealth chemist's testimony was not relevant when she informed the jury that gunshot residue testing of certain clothing (associated with the defendant via DNA testing) showed that someone wearing those items had either fired a gun, been near a discharged gun, or come into contact with something that has GSR on it. This evidence made it "more probable" that the defendant was among the intruders involved in the double homicide.
At trial, the Commonwealth, without objection, introduced a videotaped statement of the defendant, during which he denied involvement in the killings before invoking his rights to counsel and silence. Where the judge raised a concern about permitting the jury to hear the invocation but defense counsel and the defendant expressed a preference for the jury to see the entire interview, this was "an understandable tactical decision," as it helped further the defendant's theme of cooperation and the police's "rush to judgment." The judge also gave a limiting instruction that the jury could not draw any negative inference from the invocation of rights. Relatedly, the evidence of the defendant's denials and the hearsay accusatory statements of the police were properly admitted, at the defendant's request, as part of a reasonable strategy.
Nor was it error for the trial judge to admit two statements of co-defendant Buth. His statement to the police that he had just gotten of f a bus from Revere to see a friend named David, whose last name he could not provide, did not violate the defendant's confrontation rights, because it was not offered for the truth, but rather for its falsity as well as its similarity to a statement the defendant made to the police, thus falling outside the class of "testimonial" statements protected by the confrontation clause. Similarly, Buth's statement to another individual about a desire to trade marijuana for crack cocaine was not offered for its truth, but to provide context for a subsequent statement made by the defendant.
The Court also rejects the argument that a surveillance video, showing the three co-defendants at a pet store four or five hours prior to the shooting, was not properly authenticated. One of the defendant's girlfriends authenticated it when she testified that it showed the three co-Ds (and another individual) and that it was a fair and accurate representation of their visit to the pet store.
The Court finds no error in the judge's decision, over objection, to question prospective jurors about gangs when there ultimately was no testimony about gangs or gang affiliation. Because there was a possibility of such evidence being offered, the judge was within his discretion to ask about this during jury selection.
Practice Tip: It is unclear whether any there was any motion for mistrial or whether this was revisited during or at the close of evidence. Defense counsel should consider making a specific factual record of how prejudicial this potential tainting of the sitting jury was.
Finally, the judge did not abuse his discretion in refusing to conduct a post-verdict inquiry of jurors in response to a letter one juror sent describing the pressure some jurors purportedly placed on that juror and two others to convict when they were inclined to acquit. Because "none of the allegations in the letter constituted an extraneous influence on the jury or a claim of racial or ethnic bias," the judge bore no duty to conduct such an inquiry. That the judge ruled against doing so prior to hearing from the parties was not "the better practice," but it was not error.
Commonwealth v. Taskey, No. 09-P-689 (February 18, 2011)
Link to Opinion: http://www.socialaw.com/slip.htm?cid=20487&sid=119
KEYWORDS: Deoxyribonucleic Acid, Conspiracy, Practice, Criminal, Confrontation of witnesses, Instructions to jury, Hearsay, Evidence, Expert opinion, Constitutional Law.
The defendant was convicted of conspiracy to tamper with a DNA record, G.L. c. 274, § 7, based on evidence that the defendant stood in for another inmate at the Hampden House of Corrections when that inmate was required to provide a DNA sample for the CODIS database. The evidence showed that the blood sample given by the person purporting to be that inmate yielded the same DNA profile as the blood sample the defendant provided under his own name. Affirming the conviction, the Appeals Court first concludes that testimony from a so-called "substitute" DNA analyst did not violate the defendant's confrontation rights. The analyst who actually conducted the original processing and analysis of the two samples was unable to testify, so instead, the Commonwealth called her supervisor. The supervisor testified that she reviewed the data generated by the original analyst, verified compliance with protocols, and concluded that the two samples were a match. The Appeals Court does agree that it was error to admit into evidence the absent analyst's test results and opinion, but following Commonwealth v. Barbosa, 457 Mass. 773 (2010), which emphasized the objective reliability of DNA testing, concluded that this error was harmless beyond a reasonable doubt.
The Appeals Court also rejects the defendant's argument that there was (a) insufficient evidence to support probable cause to indict him on this charge and (b) insufficient evidence to find him guilty at trial.
Finally, the defendant was not entitled to an accident instruction based on evidence that errors have occurred in other cases in the process of DNA collection.
