Opinion
10-P-623
03-06-2012
COMMONWEALTH v. DONALD MITCHELL.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was tried and convicted by a Superior Court jury on a charge of breaking and entering, in violation of G. L. c. 266, § 17. After the jury verdict, the defendant waived his right to a jury trial and went to trial, before the same judge who presided over the jury trial, on the charge of being a habitual offender, G. L. c. 279, § 25. He was convicted of the latter charge and sentenced to a term of 10 years in prison on the breaking and entering conviction.
On appeal, the defendant claims that his conviction for breaking and entering should be set aside because the judge (1) erroneously failed to give the jury an instruction on honest but mistaken identification, see Commonwealth v. Pressley, 390 Mass. 617 (1983), and (2) erred in admitting expert testimony, over objection, of a police shoeprint analyst. Regarding his conviction for being a habitual offender, the defendant contends the finding must be set aside because the judge failed to conduct an adequate colloquy prior to accepting his written jury waiver.
We address the issues raised seriatim.
1. Breaking and entering charge. (a) The defendant's requested jury instruction. The defendant argues that the judge erred in failing to give a requested jury instruction, pursuant to Pressley, on the possibility that an eyewitness who identified the defendant was honestly mistaken. The judge gave the identification instruction approved by the Supreme Judicial Court in Commonwealth v. Rodriguez, 378 Mass. 296 (1979), but refused to give the Pressley charge. 'The Rodriguez charge identifies various factors for the jury to take into account in order to determine whether a witness's identification of the defendant is accurate or whether the witness might simply have made a mistake. The Pressley language, in turn, simply identifies more specifically what is intended by the Rodriguez instruction -- that is, 'the possibility of an honest but mistaken identification' of the defendant by a witness.' Commonwealth v. Pires, 453 Mass. 66, 71 (2009) (citations omitted).
Where the possibility of an honest but mistaken identification is relevant to the defense, and the defendant requests an instruction on the point, the judge is required to give one. Pressley, supra. Here, where the sole defense in the case was that the defendant was mistakenly identified as the perpetrator of the crime, the judge erred in failing to give the instruction. Instead, during her instructions on witness credibility, the judge stated that a witness might be 'sincerely trying to tell the truth but mistaken.' Such a statement in the midst of instructions on credibility is not a substitute for a Pressley instruction.
Although the judge erred in denying the defendant's request for a Pressley instruction, we are persuaded that the error was not prejudicial. The Rodriguez instruction, given by the judge, together with the statement regarding witness credibility, was sufficient, in the context of the overall instruction, to apprise the jury on the possibility of an honest but mistaken identification. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (error is not prejudicial if it 'did not influence the jury, or had but very slight effect').
We also note that the evidence against the defendant was very strong. Tyler, the thirteen-year-old son of the homeowner was at home during the break-in and, after hearing several loud bangs, ran to the front area of the house where he had a clear view of the intruder from a distance of twelve feet. The intruder turned, ran from the house, and jumped into what Tyler described to police as a blue older model Volvo, parked near the house. The defendant, later identified by Tyler as the intruder, was picked up a short time later in the general vicinity of the break-in, driving an older model Volvo. He was very nervous during questioning, would not make eye contact with the officers, and was 'chain smoking.' In addition, a partial shoeprint impression on the parquet floor of the foyer area of the site of the break-in was similar to the shoeprint of the defendant's sneakers.
(b) Admission of expert testimony. Although the defendant concedes that a shoeprint matching the size, pattern, and manufacturer of his shoe was found at the crime scene, he argues that the judge abused her discretion in admitting the expert testimony of a police shoeprint analyst by failing to conduct a hearing and make findings pursuant to Commonwealth v. Lanigan, 419 Mass. 15 (1994). We disagree.
'The correspondence between boots and footprints is a matter requiring no peculiar knowledge, and to which any person can testify.' Commonwealth v. Cortez, 438 Mass. 123, 127 n.5 (2002), quoting from Commonwealth v. Sturtivant, 117 Mass. 122, 133 (1875). Nonetheless, '[i]n cases where expert testimony will be of assistance, it will be admissible, in the judge's discretion, even though the matter may be within the knowledge of the trier of fact.' Commonwealth v. Miranda, 441 Mass. 783, 793 (2004) (internal citation and quotation marks omitted). Moreover, an evidentiary 'hearing is generally not required where we have previously admitted expert testimony of the same type, where the testimony is offered for the same purpose, and where there is no factual issue as to whether the expert is qualified, whether the appropriate methodology has been followed, or whether the quality of the evidence is sufficient to permit an opinion.' Commonwealth v. Heang, 458 Mass. 827, 845 (2011).
The Supreme Judicial Court recently declined to reconsider the reliability of the expert witness' methodology as to fingerprint evidence, see Commonwealth v. Gambora, 457 Mass. 715, 727 (2010), and has held similar expert testimony on shoeprint analysis to be admissible, see Cortez, supra at 127-129; Commonwealth v. Boyarsky, 452 Mass. 700, 715-716 (2008). The testimony in this case was offered for the same purpose as in previous cases where such testimony has been admitted, namely, to establish the probability that a shoeprint found at the crime scene was made by a certain shoe. See Cortez, supra; Boyarsky, supra. Furthermore, there was no factual issue regarding the expert's qualifications, whether the appropriate methodology was followed, or whether the quality of the evidence was sufficient to permit an opinion. Therefore, the judge was not required to conduct a full Lanigan hearing or to make findings addressing the Lanigan factors to determine the admissibility of the witness' testimony, and accordingly did not abuse her discretion. See Heang, supra.
2. Waiver of right to jury trial. The defendant argues that the judge erred in failing to conduct an adequate colloquy before accepting his waiver of his right to a jury trial. We agree.
A trial judge is required to conduct an adequate colloquy before accepting a criminal defendant's waiver of his right to jury trial. See Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979). While extensive instructions are not required in every case, see id. at 509-510, in reviewing the record, we must be sure that, in the course of the colloquy, the defendant indicated 'a comprehension of the nature of the choice between a bench and jury trial,' Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 784 (1997). See Commonwealth v. Pavao, 423 Mass. 798, 802 (1996).
We reject the Commonwealth's argument that, because the defendant had just undergone a jury trial, the abbreviated colloquy should be considered adequate. 'The Ciummei rule requires that the critical evidence for determining whether the waiver was made knowingly and voluntarily come directly from the defendant in the colloquy.' Pavao, supra. While other evidence can help show that a 'sparse' colloquy was adequate, see Hernandez, supra, the defendant's experience of a jury trial would not necessarily apprise him of all the relevant differences between a jury trial and a bench trial, nor provide the judge with assurance that the defendant had conferred with counsel about the waiver, had not been unduly pressured into waiving the right, and was not otherwise lacking in rational judgment, see Ciummei, supra at 510.
Conclusion. The judgment on the breaking and entering charge is affirmed. The judgment on the habitual offender charge is reversed, the finding of guilt is set aside, and the matter is remanded for a new trial on the latter charge.
So ordered.
By the Court (Rapoza, C.J., Mills & Graham, JJ.),