Opinion
No. 13–P–321.
2013-12-13
COMMONWEALTH v. Denzel HORNE.
By the Court (TRAINOR, VUONO & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Denzel Horne, appeals convictions under G.L. c. 269, §§ 14( b )(1) and 14( c ). The defendant argues both convictions should be set aside because the trial court judge allowed excessive testimony concerning the procedures used to identify the fingerprints. The defendant also argues that the conviction under G.L. c. 269, § 14( b )(1), should be set aside due to insufficient evidence. We affirm.
Discussion. Admission of fingerprint evidence. The defendant argues that allowing prosecution witnesses to testify over his objection to two different procedures that were done as part of the fingerprint identification process was prejudicial error. The defendant suggests it was prejudicial because it was duplicative evidence that provided unwarranted credibility to the police's conclusion that the defendant's fingerprints match the fingerprints found on the envelope. We disagree. “Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.” See Commonwealth v. Simpson, 434 Mass. 570, 578–579 (2001). Here, the judge determined, after discussion with counsel, that “the primary thrust of the Commonwealth's case is the fingerprint identification,” so she was going to permit the Commonwealth to explain all the steps their experts took to analyze the fingerprints .
Cf. Commonwealth v. Cruz, 445 Mass. 589, 592 (2005) (concluding there was no error in allowing five photographs of the defendant in evidence when the victim's identification was an important issue at trial). The purpose of admitting the evidence was not to draw the inference that they matched the fingerprints twice, but to fully explain how the police came to the conclusion that the fingerprints matched. This was not a palpable error.
The defendant makes some assertions about the reliability of this evidence. However, there is no indication that the defendant tried to exclude the evidence as unreliable. In addition, both the defense expert and the prosecution's experts indicated that they each used the ACE–V method to analyze the fingerprints.
The defendant also seems to be contending that because the jury did not accept his expert's analysis, the jury must have been misled by the duplicative evidence. However, the assumption behind this argument is inaccurate because the jury could have decided that his expert's opinion was not helpful and disregarded it. Either way, this is all speculation and as a result, this argument is not discussed.
The defendant also argues that the problem with the duplicative evidence was compounded by a comment in the prosecutor's closing argument. The defendant did not object to the closing argument. As a result, it is reviewed for a substantial risk of a miscarriage of justice. Commonwealth v. Smith, 460 Mass. 385, 398 (2011). A prosecutor's comments in a closing argument are analyzed in “light of the ‘entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial’ “ Commonwealth v. Marquetty, 416 Mass. 445, 450 (1993) (citations omitted).
Here, the defendant points us to a single sentence, which he suggests indicates that one discrepancy between the latent fingerprint on the envelope and the defendant's fingerprint was not significant, which is contrary to the zero tolerance principle the expert witnesses explained. However, the prosecutor also spoke directly about the zero tolerance theory noting that if an error exists, there “is no print.”
In addition, the prosecution argued that the defense expert's opinion was not valuable due to his lack of training. The prosecution also argued that the discrepancy the defense expert claimed to find was not actually a discrepancy but was due to an arrow that the Commonwealth's witness added to exhibit. In context, the comment the defendant is concerned about did not create a substantial risk that the jury concluded the fingerprints matched despite an actual discrepancy.
The prosecutor included the following in closing: “Now, Mr. Beck talked a little bit about the idea of zero tolerance. Think about what Trooper Mitza was telling you. Zero tolerance in terms of error versus zero tolerance in terms of quality. There's no doubt, ladies and gentlemen, if there's an error, the prints not a print.”
Sufficiency of the evidence. To prove a violation of G.L. c. 269, § 14( b )(1) the Commonwealth has to establish beyond a reasonable doubt “(1) that the defendant wilfully communicated, or caused to be communicated, a threat (2) to use or have present (3) one of an enumerated list of dangerous devices, substances, or items capable of causing death, serious bodily injury, or substantial property damage (4) at a place or location.” Commonwealth v. Kerns, 449 Mass. 641, 651 (2007). The defendant argues that the evidence was insufficient to prove the last element that the threat was directed “at a place or location.” Evidence is sufficient if, viewing it in the light most favorable to the Commonwealth, any rational trier of fact could find that each element of the crime was proved beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979).
Here, the prosecution presented evidence that a letter addressed to the principal was left at the entrance of Newton North High School. The letter stated: “Dear Ms. Price, at approximately 12:30 p.m., on this Wednesday evening in December, Newton North High School's going to be bombed. Anyone and everyone who isn't killed will be lucky, but you, Ms. Price, will be gunned down no matter what.” A rationale inference from these facts is that the shooting threat was going to occur at Newton North, which is the same location as the first threat in the letter and the location where the letter was delivered. This is sufficient evidence.
The defendant also argues that the judge's instruction on the elements of the crime did not sufficiently explain the need to prove the place or location element. Jury instructions that were not objected to are reviewed to determine if they created a substantial risk of miscarriage of justice. See Commonwealth v. Akara, 465 Mass. 245, 258 (2013). Here, there was no substantial risk of a miscarriage of justice because the judge described each of the elements of the crime. Although the judge did combine the second and fourth element in the instruction, the combination did not remove an element the Commonwealth had to prove. The judge still instructed the jury on all the required elements. As a result, there is no substantial risk of a miscarriage of justice.
Judgments affirmed.