Opinion
14-P-265
10-14-2015
COMMONWEALTH v. MCSHEVENS PIERRE-LOUIS.
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, Mcshevens Pierre-Louis, appeals from convictions of armed robbery while masked, in violation of G. L. c. 265, § 17 (two counts), and conspiracy to commit masked armed robbery, in violation of G. L. c. 274, § 7. He asserts that the evidence was insufficient to identify him as one of the three men who committed the crimes, that the prosecutor's closing argument was improper, and that the trial judge's instructions on eyewitness identification were deficient. We affirm.
Sufficiency of the evidence. The evidence, taken in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), showed that the robbers, who were armed, masked, and wearing dark clothing, had inside knowledge of the closing procedures of the Costco store in Dedham, including when the security guard left the premises after closing, when and where the managers would exit the store, and where the day's cash receipts and the store's stock of jewelry were secured overnight. The defendant is a former employee of the store, who was removed from his position approximately three months before the robbery by one of the two managers who happened to be on duty the night of the robbery. Neither robbery victim identified the defendant as one of the perpetrators; however, their descriptions of one of the three masked men were consistent with the defendant's general appearance.
Through deoxyribonucleic acid (DNA) analysis, an oversized long-sleeved black T-shirt discovered outside the Costco store established the defendant's presence at the crime scene. This and another black T-shirt lay in a traveling lane of the Costco parking lot. The parking lot had been swept by a street-cleaning vehicle after the store closed at 9:00 P.M. The sweeping procedure takes approximately one hour, and the security guard who patrolled the parking lot testified that it occurred around 10:00 P.M. The police officer who responded to the reported armed robbery discovered the T-shirts when he arrived on the scene at approximately 11:15 P.M. DNA from a single source was present on the shirt, where the back collar rubs against the wearer's neck. The statistical likelihood of the match between the DNA profile derived from the T-shirt and the defendant's DNA profile was overwhelming.
The defendant also claims that the DNA evidence was wrongly admitted because of weaknesses in the chain of custody and because the judge unduly limited his ability to exploit these weaknesses at trial. We disagree. Deficiencies in the chain of custody go to the weight, not the admissibility, of the evidence, see Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992); Commonwealth v. Jones, 42 Mass. App. Ct. 378, 380-381 (1997), and the judge allowed defense counsel to argue vigorously, both during cross-examination and in closing argument, that the Commonwealth failed to properly preserve the evidence.
A fingerprint or DNA found at a crime scene is not sufficient evidence by itself to sustain a conviction. See Commonwealth v. Morris, 422 Mass. 254, 257 (1996); Commonwealth v. Fazzino, 27 Mass. App. Ct. 485, 487 (1989); Commonwealth v. French, 88 Mass. App. Ct. ___, ___ (slip op. at 4) (Oct. 9, 2015). The prosecution must also present evidence that "reasonably excludes the hypothesis that the fingerprints were impressed at a time other than when the crime was being committed." Commonwealth v. Fazzino, supra. Here, the evidence reasonably excluded the possibility that the defendant left his T-shirt outside the store at another time. Indeed, the most likely hypothesis explaining the presence and the location of the T-shirt was that the defendant shed it as he and the other assailants drove away from the crime scene.
The evidence of the defendant's guilt is at least as strong as that found sufficient in Commonwealth v. French, supra, where the only evidence linking the defendant to the crime was his fingerprint on the window pane that the burglar removed to enter the premises. The evidence is similar to that found sufficient in Commonwealth v. Fazzino, supra, in which the defendant's fingerprint was coupled with knowledge of the premises and a motive of revenge. Here, the strong evidence of inside knowledge and motive, plus the DNA evidence, was sufficient to establish the defendant's guilt beyond a reasonable doubt.
Closing argument. The prosecutor's single use of the word "fired," as opposed to "terminated," to describe the defendant's separation from employment with Costco was not improper. To prevent the admission of prejudicial propensity evidence, the trial judge allowed the defendant's motion in limine to exclude any reference to the reasons for the defendant's termination. However, the judge denied the defendant's motion to exclude any reference to the fact of his termination. At trial, although the parties adopted the convention of referring to the defendant's "termination," the judge placed no prohibition on the use of the word "fired." The evidence supported the prosecutor's use of the word, which, in this context, we consider no more prejudicial than the word "terminated."
The prosecutor exceeded the scope of proper argument, however, when he stated in summation that the two store managers "suggested" the names of only two former employees -- one being the defendant -- "after just being in the presence of the perpetrators." The clear implication of the prosecutor's argument was that the victims tacitly identified the defendant as one of the perpetrators. However, the witnesses never identified the defendant as such, at trial or in any pretrial identification procedure. The prosecutor's argument, to which defense counsel seasonably objected, improperly "suggest[ed] an inference that could not reasonably be drawn from the evidence." Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005).
Nonetheless, we are confident "that the improper remark had little or no effect on the jury's deliberations." Id. at 586. The evidence linking the defendant to the crime was strong, and the prosecutor's closing argument focused primarily on the DNA evidence. Though we do not condone "fight[ing] fire with fire," Commonwealth v. Kozec, 399 Mass. 514, 519 (1987), we note that in his closing argument, defense counsel argued forcefully that if the defendant had been one of the perpetrators, the victims
-- who worked with him for two years and were familiar with his appearance, voice, and facial features -- would have identified him, or at least would have told the police that they "sensed" it was him. Any prejudice from the prosecutor's improper implication that the victims did in fact "suggest" the defendant as a suspect was tempered by defense counsel's prior argument that the victims' failure to name him as a suspect was conclusive evidence of his innocence. See United States v. Young, 470 U.S. 1, 12 (1985) (in determining whether prosecutor's improper closing argument is prejudicial, "defense counsel's opening salvo" must be taken into account).
Honest but mistaken identification instruction. The defendant objected to the judge's failure "to give the Telfaire-Rodriguez instruction that [he] presented on pages three to four of [his requested] instructions." On appeal, the defendant argues that the charge on eyewitness identification was incomplete because the judge failed to include an instruction on honest but mistaken identification, see Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983), which he had requested under a separately numbered heading on pages four to five of his requested instructions. The defendant's objection "would not reasonably have alerted the judge that the defendant objected to the absence of an honest, but mistaken, identification instruction." Commonwealth v. Penn, 472 Mass. 610, 625 n.24 (2015).
See Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979), quoting from United States v. Telfaire, 469 F.2d 552, 558-559 (D.C. Cir. 1972).
The trial judge responded that she "gave as much as [she] thought was appropriate concerning identification because we don't have any identification witness." The judge did not err in failing to anticipate the Supreme Judicial Court's guidance that would appear two months after the trial, in Commonwealth v. Franklin, 465 Mass. 895, 912 (2013), which explained "that eyewitness identification may be an important issue at trial even where no eyewitness made a positive identification of the defendant as the perpetrator, but where eyewitnesses have provided a physical description of the perpetrator or his clothing."
The judge's instruction covered most, but not all, of the salient points in the Telfaire-Rodriguez instruction: that identification is an "important issue" in the case; that the Commonwealth must prove, and the jury must be satisfied of, the accuracy of the defendant's identification as the perpetrator beyond a reasonable doubt; and that the value of identification testimony depends on whether "the witness has the capacity and adequate opportunity to observe the event," including factors such as the duration of the witness's view, how much of the perpetrator's face was visible, distance, and lighting conditions.
We conclude there was no substantial risk of a miscarriage of justice. The case against the defendant was based on DNA identification coupled with circumstantial evidence of knowledge, opportunity, and motive. The defense established in cross-examination that the eyewitnesses had failed to identify the defendant, a point that they readily conceded. Defense counsel made this point repeatedly in his closing argument. The eyewitness identification evidence played a lesser role in this case than in either Commonwealth v. Penn, supra, or Commonwealth v. Franklin, supra, and we are confident that even with a specific instruction on good faith error in identification, the jury verdicts would have been the same. See Commonwealth v. Penn, 472 Mass. at 626.
Judgments affirmed.
By the Court (Kafker, C.J., Trainor & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 14, 2015.