Opinion
18-P-562
04-19-2019
COMMONWEALTH v. JOHNNY BALL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of unlawful possession of a sawed-off shotgun, G. L. c. 269, § 10 (c), as an armed career criminal, G. L. c. 269, § 10G, and possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (c), as a subsequent offense, G. L. c. 94C, § 32A (d). In this direct appeal, the defendant argues that he is entitled to a new trial because (1) the judge failed to conduct an evidentiary hearing concerning the voluntariness of the defendant's statements to the police, (2) the judge erred in admitting prior bad act evidence without a limiting instruction, (3) the expert's fingerprint testimony lacked sufficient foundation and was impermissibly stated as fact, and (4) the prosecutor impermissibly argued negative profiling in closing. For the reasons set out below, we affirm.
The subsequent offense and armed career criminal charges were tried before a judge. The judge allowed the Commonwealth's motion to dismiss a subsequent offense enhancement on the shotgun charge.
The defendant also argues that the prosecutor misstated in closing the location of the shotgun in the room. However, the statement was supported by the trial testimony.
Background. The defendant and his girlfriend had been under investigation by Worcester police, as a result of which the police obtained a warrant to search apartment number 2 at 124 Southgate Street in Worcester, where the defendant lived. While outside that building before executing the warrant, the police observed the defendant and his girlfriend drive up. As the police approached the car, the defendant looked panicked and put something in his mouth. He then told the officers, "Okay; I give up. I ate it." The search of the defendant's bedroom discovered, among other things, $2,500, a digital scale, plastic baggies with their corners removed, razor blades, some loose cocaine, and a sawed-off shotgun. When the search was finished, the defendant was arrested and advised of his Miranda rights. As he was being led from the building, the defendant spontaneously stated that he was not worried about the case, that he would make bail, and that he would be back on the street the following day. In response, the officer asked if the defendant was worried about the shotgun found in his bedroom, to which the defendant replied, "I'm not worried about that thing; it doesn't work anyway."
Discussion. 1. Voluntariness. On the day before trial, the defendant -- who had not previously filed a motion to suppress -- filed motions in limine seeking to exclude his two inculpatory statements unless the Commonwealth established that they were made voluntarily. He also asked that the question of voluntariness be submitted to the jury with a humane practice instruction. In the alternative, the defendant requested that the judge conduct a voir dire of the officer regarding the voluntariness of the defendant's statements. The motions were not supported by affidavits or any other factual submission. See Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004) ("affidavit detailing all facts relied upon" must be submitted in support of motion to suppress).
Where, as here, a defendant has presented no factual basis to suggest that his statements were involuntary, the judge did not err by not conducting a voir dire of the officer before admitting them. An evidentiary hearing in the absence of the jury is required "[o]nce a defendant has presented evidence that indicates that a defendant's confession or statements of admission that are sought to be admitted may not have been voluntarily given." Commonwealth v. Miller, 68 Mass. App. Ct. 835, 841 (2007). See id. at 842. Not until the defendant has made that threshold showing does the Commonwealth then have the burden "to prove beyond a reasonable doubt that the statements were made voluntarily." Id. at 841. Moreover, despite the absence of a factual basis to suggest that the statements were involuntarily made, the judge nonetheless allowed the defendant's request that the question of voluntariness be submitted to the jury with a humane practice instruction. See Commonwealth v. Kolenovic, 478 Mass. 189, 199 n.10 (2017) ("The humane practice instruction conveys to the jury that the prosecution must prove the voluntariness of the statements beyond a reasonable doubt").
2. Prior bad acts. We are unpersuaded by the defendant's argument (raised for the first time on appeal) that testimony that the search warrant was issued based on an affidavit containing information that the defendant and his girlfriend were the focus of a drug investigation constituted prior bad act evidence requiring a limiting instruction. To begin, we note that defense counsel was the first to elicit this information at trial and, moreover, explicitly agreed that the prosecutor could later also introduce it. Counsel's position appears to have been part of a well-thought-out strategy to show that the police were so focused on the defendant and his girlfriend from the start that they failed to adequately investigate the other occupants of the apartment or comprehensively collect evidence at the scene. Where the "defendant has inserted into the case the relevance of the police judgment and decisions[,] the officer[s] must be allowed to defend that judgment." Commonwealth v. Avila, 454 Mass. 744, 753 (2009), quoting Commonwealth v. Lodge, 431 Mass. 461, 467 (2000).
Even had it first been interjected by the Commonwealth, the testimony did not constitute evidence of prior bad acts. Rather, it was background information which "falls generally within the judge's discretion." Commonwealth v. LaVelle, 33 Mass. App. Ct. 36, 43 (1992), S.C., 414 Mass. 146 (1993) (admitting evidence to explain why police used particular informant). Here, the evidence came in to explain why the officers happened to be at the defendant's residence on the day in question. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992) (investigating officer "should be allowed some explanation of his presence and conduct" [citation omitted]). Moreover, it added little to the inference that would naturally be drawn from the fact that the police were present in order to execute a search warrant for the defendant's residence.
3. Fingerprint evidence. Although the defendant acknowledges that the Supreme Judicial Court has held that "the underlying theory and process of latent fingerprint identification, and the ACE-V method in particular, are sufficiently reliable to admit expert opinion testimony regarding the matching of a latent impression with a full fingerprint," Commonwealth v. Patterson, 445 Mass. 626, 628 (2005), the defendant argues (and we agree) that -- because the prosecutor laid no foundation showing what methodology the expert used -- the reliability of the opinion could not be established. See Commonwealth v. DiCicco, 470 Mass. 720, 729 (2015) (expert's opinion must not reach jury "if the process or theory underlying an expert's opinion lacks sufficient reliability or an expert cannot provide a reliable factual basis for his conclusions"). Therefore, neither the judge nor the jury could determine whether the expert employed the reliable "ACE-V" comparison method, or whether the prints themselves were of "sufficient quality and quantity of detail." Patterson, supra at 629.
We also agree that the expert's testimony that "[t]his particular fingerprint was made by the left ring finger of Johnny Ball" was improper. "[T]estimony to the effect that a print matches, or is 'individualized' to, a known print . . . should be presented as an opinion, not a fact, and opinions expressing absolute certainty about, or the infallibility of, an 'individualization' of a print should be avoided." Commonwealth v. Wadlington, 467 Mass. 192, 204 (2014), quoting Commonwealth v. Gambora, 457 Mass. 715, 729 n.22 (2010).
All that said, because the issues were not preserved, we consider only whether they created a substantial risk of a miscarriage of justice. Commonwealth v. Horne, 476 Mass. 222, 225-226 (2017). A substantial risk of a miscarriage of justice arises "if the evidence and the case as a whole . . . [leave the court] with a serious doubt that the defendant['s] guilt had been fairly adjudicated." Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997). Here, we perceive no such doubt. Although in many cases fingerprint evidence is critical to establishing a person's connection to a particular place or object, here it was merely one piece of evidence (and not necessarily the strongest) linking the defendant to the locked bedroom where the shotgun was found. Among other things, the defendant had the key to the bedroom in his pocket, personal correspondence bearing his name was located in the room, and his roommate testified that the room belonged to the defendant and that he lived there.
4. Closing. Finally, the defendant argues that the prosecutor relied on improper negative profiling evidence when he compared the defendant to a typical "crack cocaine" user. See Horne, 476 Mass. at 227 ("negative profiling evidence — where the goal is to demonstrate that a person does not fit a particular profile" is impermissible). Because the defendant did not object at trial, we consider whether any error "created a substantial risk of a miscarriage of justice." Commonwealth v. Brewer, 472 Mass. 307, 315 (2015). Here, there was no error because the prosecutor did not attempt to distinguish the defendant from a typical drug user based on his physical attributes or characteristics, but rather by pointing to objects in the defendant's possession that were inconsistent with being a user, rather than a dealer, of drugs. Contrast Horne, supra at 225, 228. The prosecutor properly drew the jury's attention to the knotted bag of crack cocaine in the car, the absence of implements used to consume drugs, the possession of a cell phone, the loose crack cocaine in the bedroom, the bags and razors, the digital scale, and the presence of a large amount of currency in the room even though the defendant was not employed. See Commonwealth v. Blaikie, 375 Mass. 601, 612 (1978).
Conclusion. For these reasons, we affirm the judgments.
So ordered.
By the Court (Wolohojian, Milkey & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 19, 2019.