Opinion
10-P-963
01-09-2012
COMMONWEALTH v. ANGEL RAMOS MERCED (and twenty-five companion cases).
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 defendants, Angel Ramos Merced and Jose Acevedo, were convicted of numerous offenses in connection with a 2003 home invasion. On appeal, Merced challenges the admission of certain DNA evidence without the testimony of the analyst who performed the analysis, and of eyewitness identifications that he argues were unconstitutionally suggestive; Acevedo seeks dismissal of two indictments that were placed on file; and both defendants argue that a new trial is necessary because of a defective jury charge. We affirm.
Specifically, each defendant was convicted of home invasion (G. L. c. 265, § 18C); kidnapping while armed with a firearm (G. L. c. 265, § 26); two counts of kidnapping with serious bodily injury while armed with a firearm (G. L. c. 265, § 26); three counts of assault with a dangerous weapon within a dwelling (G. L. c. 265, § 18A); five counts of assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A([b]); and assault by means of a dangerous weapon (G. L. c. 265, § 15B[b]). The jury also returned guilty verdicts against each defendant on two additional counts of kidnapping while armed with a firearm (G. L. c. 265, § 26), but those indictments were placed on file with the consent of the Commonwealth and each defendant.
1. DNA evidence. The Commonwealth's evidence at trial showed that DNA found at the scene of the crime matched Merced's DNA profile. This evidence was introduced through the testimony of Jennifer Elliott, a DNA unit supervisor for the Massachusetts State Police Crime Laboratory. Merced argues that because the initial analysis of the DNA evidence was performed by Patricia Byron, another analyst at the lab, Elliott's testimony as to the results of those tests and conclusions drawn therefrom was inadmissible hearsay and violated his right under the Sixth Amendment to the United States Constitution to be confronted with the witnesses against him. Although we agree that some of Elliott's testimony was admitted in error, we do not believe reversal is required.
An expert witness may give opinion testimony based on hearsay 'when the particular hearsay would be independently admissible if presented by the 'right witness' or with a proper foundation, and if it is the type of evidence on which experts customarily rely as a basis for opinion testimony.' Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 343 (2011). 'Expert testimony by a laboratory supervisor concerning the statistical probability that another individual's DNA would match the DNA profile in question does not violate the confrontation clause, even when the opinion is based on test data not properly admitted in evidence.' Ibid. However, where the expert's opinion is based on testimonial hearsay, direct testimony about the specifics of that hearsay does violate the confrontation clause. See Commonwealth v. Barbosa, 457 Mass. 773, 786 (2010), cert. denied, 131 S. Ct. 2441 (2011). Cf. Bullcoming v. New Mexico, 131 S. Ct. 2705, 2722 (2011) (Sotomayor, J., concurring in part) (noting that the Court has not addressed the constitutionality of expert testimony based on others' testimonial statements that were not themselves admitted as evidence).
Application of this rule to the present case means that it was permissible for Elliott to rely on the facts and data contained in Byron's lab reports, since they would have been independently admissible had Byron testified. Nor was there any problem with Elliott's conveying her own 'opinions [as to] whether the defendant was a potential contributor of the DNA profile in each unknown sample and the statistical likelihood that an individual in various population groups could have been a contributor of that DNA profile.' Commonwealth v. McCowen, 458 Mass. 461, 483 (2010). Her properly admitted testimony that Merced was a possible source of several DNA samples discovered at the crime scene, and that the probability of a randomly selected individual having been the source was on the order of one in quadrillions or quintillions, not only comprised the bulk of what she said to the jury, but was also '[t]he most probative aspect of [the DNA] evidence.' Barbosa, supra at 792. See McCowen, supra at 484 ('For a jury, the compelling information is an expert's properly admitted opinion testimony regarding the statistical likelihood that the defendant was the source of the unknown DNA sample recovered from a crime scene').
Some of Elliott's testimony was improper. Under the now-clarified case law, she could not directly testify to the specific details of the profiles generated by Byron or to any conclusions drawn by Byron from the tests. See Barbosa, supra at 791-92. Although the charts and raw data from Byron's analyses were never introduced as evidence, Elliott testified that she 'agreed' with 'the calls that [Byron] made' and with her 'conclusions.' The Commonwealth concedes this was error. Elliott's testimony may also have crossed the line in two other respects. First, she repeatedly testified that Merced's DNA 'matched' that found at the crime scene, which impermissibly implied specific details about the profiles generated by Byron. See Commonwealth v. Banville, 457 Mass. 530, 541 n.3 (2010). She also testified in fairly specific terms about some of Byron's procedures and results.
Because Merced objected at trial, we review to decide whether the error was 'harmless beyond a reasonable doubt.' Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010). Under this standard, reversal is required unless the properly admitted evidence of guilt is 'overwhelming, in the sense that it is so powerful as to nullify any effect that the improperly admitted evidence might have had on the fact finder or the findings.' Id. at 362 (citations omitted).
The properly admitted evidence in this case was sufficient to meet this standard. Elliott's opinion testimony regarding the probability that the DNA found at the scene belonged to someone other than Merced was sufficiently powerful to overwhelm her oblique references to the specifics of the DNA profiles generated by Byron. See Banville, supra at 541 n.3 (noting that even had the error been preserved, testimony that the defendant's DNA 'matched' that found at the scene, when paired with opinion testimony about the probability that someone else was the source of the DNA, would be harmless beyond a reasonable doubt). Indeed, the expert opinion testimony was in all likelihood the only part of the DNA evidence that had any real meaning to the jury.
With regard to Elliott's references that Byron had reached the same conclusions that she reached, Elliott made it abundantly clear that the opinions she was offering were her own, and that she had drawn her own conclusions before looking at any conclusions reached by Byron. Especially given the defendants' opportunity to thoroughly cross-examine Elliott about the lab's procedures, Byron's competence, and the basis for Elliott's own opinions, we are satisfied that the cumulative hearsay testimony about Byron's opinions was harmless beyond a reasonable doubt. See Commonwealth v. Salcedo, 405 Mass. 346, 350 (1989) (improperly admitted expert testimony, where 'merely cumulative,' 'could be no more than harmless error'); Commonwealth v. Lodge, 431 Mass. 461, 468-469 (2000) (improperly admitted opinion testimony harmless where cumulative of other expert testimony on the same subject).
See also Commonwealth v. Taskey, 78 Mass. App. Ct. 787, 797 n.18 (2011), quoting from Commonwealth v. DiBenedetto, 414 Mass. 37, 40 (1992) (factors in 'harmless beyond a reasonable doubt' analysis include importance of improper testimony to prosecution's case, whether testimony was cumulative, presence or absence of evidence corroborating or contradicting the testimony, extent of cross-examination permitted, and overall strength of prosecution's case).
2. Identification evidence. Merced also argues that eyewitness identifications of him by two witnesses should have been suppressed because they were tainted by impermissibly suggestive photo arrays. 'For a motion to suppress a photographic identification to succeed, the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law.' Commonwealth v. Watson, 455 Mass. 246, 250 (2009) (citations omitted). Merced claims that the photographic identification in this case was unnecessarily suggestive because his photograph was the only one in the array of a 'shirtless person wearing a round earring in each ear' and was placed in the same order (photo number six) as a photograph of codefendant Acevedo in an array that the witnesses had viewed several days previously.
Merced has pointed to no case law indicating that the positioning of a suspect's photo within an array bears on the suggestiveness of the identification, nor has he provided any reason to believe it did so in this case. Nor is there any reason to believe that the details of the photograph affected the identification procedure. The features singled out by Merced are not prominent; the photo is a closely cropped head shot, and the fact that Merced is not wearing a shirt does not immediately distinguish his photo from the others in the array. In addition, Merced's shirtlessness and earrings are unrelated to the crime, and the witnesses never suggested that they were significant, instead picking Merced out of the array because he 'looks just like one of the guys' who had participated in the crime. Compare Commonwealth v. Thornley, 406 Mass. 96, 99-100 (1989). See Commonwealth v. Poggi, 53 Mass. App. Ct. 685, 691-692 (2002), and cases cited.
We also agree with the motion judge that a subsequent one-on-one voice identification, evidence of which was suppressed at trial, did not taint the witness's in-court identification. Prior to the voice identification the witness, upon viewing the photo array, had jumped out of her chair and identified Merced, with 100 percent certainty, as one of the perpetrators. This was sufficient to establish that the in-court identification had a source independent of the suppressed voice identification. See Commonwealth v. Botelho, 369 Mass. 860, 868 (1976).
3. Jury charge. Both defendants take issue with the trial judge's use of Instruction 21 of the Federal Judicial Center's Pattern Criminal Jury Instructions 28 (1988) on 'proof beyond a reasonable doubt.' At the defendants' request, the judge subsequently augmented the charge with an instruction based on Commonwealth v. Webster, 5 Cush. 295 (1850), but the defendants now argue that this did not cure the problems with the Instruction 21 language. This court has previously approved Instruction 21, see Commonwealth v. Hurd, 65 Mass. App. Ct. 788, 791 (2006), at least when used in conjunction with a charge based on Webster, and the defendants have offered no persuasive reason to revisit that decision.
The defendants highlight that the trial judge characterized the Webster charge to the jury as 'more old-fashioned.' While such qualifying language was perhaps better left unsaid, it did not denigrate the charge. Compare Commonwealth v. Dupree, 22 Mass. App. Ct. 945 (1986). The defendants also claim that the judge read the Webster portion of the charge faster than the Instruction 21 portion. Even if the defendants were able to substantiate this claim, we would not discern reversible error from it.
4. Filed indictments. Acevedo asks us to dismiss as duplicative two indictments which the trial judge placed on file with his consent. 'Absent exceptional circumstances, we do not consider appeals . . . on indictments placed on file since no appeal may come before us until after judgment, which in criminal cases is the sentence.' Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). Because we discern no exceptional circumstances in this case, there is no appeal before us from these indictments. Commonwealth v. Sanchez, 405 Mass. 369, 382 n.8 (1989). Acevedo may move at any time for the trial judge to take these indictments from the file and dismiss them. See Commonwealth v. Simmons, 448 Mass. 687, 696 (2007).
Judgments affirmed.
By the Court (Trainor, Milkey, & Agnes, JJ.),