Opinion
No. 11–P–372.
2013-10-28
COMMONWEALTH v. Rashidi SMITH.
By the Court (MEADE, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Rashidi Smith appeals from his conviction of murder in the second degree, alleging that he was entitled to consult with an “interested adult” prior to his interrogation by the police, and that the admission of gunshot residue evidence constituted reversible error. We affirm.
Background. Smith was arrested on June 3, 2007, as a suspect in the homicide of fourteen year old Marvin Constant. At the time, Smith was seventeen years old. At the Brockton police department, Brockton police Detective Williams read Smith his Miranda rights, after which Smith signed a Miranda waiver and made several incriminating statements. Smith filed a motion to suppress his statements, which was denied. In his motion, Smith argued that his Miranda waiver was invalid in part because he was denied the opportunity to consult with an “interested adult.” At trial, the Commonwealth made four attempts to elicit testimony from its expert witness, chemist John Drugan, about how often Drugan's gunshot primer residue (GSR) analysis produced positive results, which Drugan previously explained required the presence of three particles. The first three times the Commonwealth proffered this question, Smith objected based on “relevance” and the judge sustained the objections based on “foundation.” On the Commonwealth's fourth attempt, Smith did not object and Drugan answered, “Based on our testing as a unit, it's about 25 percent of the kits or samples that come in and go back positive.” Drugan went on to explain that ninety-five percent or more of those cases have fewer than “ten unique three-component particles present.” Regarding his GSR analysis in Smith's case, Drugan testified, without objection, that he found one particle on Smith's right hand and one particle on the right cuff of Smith's sweatshirt, and that based on his analysis, he could not draw any conclusions as to whether Smith recently discharged a firearm or whether his sweatshirt was in the vicinity of a firearm when it discharged.
The following facts were found by the motion judge, who was also the trial judge, in denying the defendant's motion to suppress statements. While in a police interview room, State Trooper Wong gave Smith a written form containing various rights, including his Miranda rights. Williams read each line of the form to the defendant, who initialed each right and signed the Miranda waiver. Williams and Wong, with Brockton police Detective Bell present, interviewed the defendant for approximately sixty-two minutes, stopping when Smith said, “I don't got nothing to say.” While being walked to his cell, the defendant spoke to Williams, who revealed that he was present at the scene. Smith then stated that he wanted to talk again. The interview resumed approximately four minutes after it stopped, and lasted for approximately twenty-two minutes. The entire interview was videotaped.
Discussion. Smith argues that his Miranda waiver was invalid because he was a minor at the time of the interrogation. He urges us to expand the “interested adult” rule to include all minors, specifically those seventeen years old. The “interested adult” rule provides that a juvenile should have a “ ‘meaningful consultation with the parent, interested adult, or attorney’ to ensure the juvenile has knowingly and intelligently waived a right.” Commonwealth v. Yardley Y., 464 Mass. 223, 227 (2013), quoting from Commonwealth v. MacNeill, 399 Mass. 71, 78 (1987). At the time Smith waived his Miranda rights, he was seventeen and was not a juvenile under the law. See Commonwealth v. Considine, 448 Mass. 295, 297 n. 7 (2007) (“The defendants were not younger than seventeen; therefore, the presence of an ‘interested adult’ was not required”); Commonwealth v. Trombley, 72 Mass.App.Ct. 183, 186 (2008) (“The ‘interested adult’ rule ... does not apply in this case because the defendant was seventeen”). Smith, an adult under the law, was not entitled to the benefits of the “interested adult” rule and we decline his request to expand the rule's protection.
Smith also argues that admitting Drugan's testimony about the GSR recovered from Smith's hand and clothing, when coupled with the testimony that only twenty-five percent of Drugan's GSR analyses produce positive results, was reversible error because it was irrelevant and prejudicial. Smith asserts that he preserved this issue for appellate review because of his relevancy objections at trial, requiring that this court review the admission of Drugan's testimony for prejudicial error. The Commonwealth asserts that Smith did not preserve the issue for appellate review because he failed to object when Drugan ultimately gave the testimony at issue, requiring this court to review the admission of Drugan's testimony for a substantial risk of a miscarriage of justice.
Admitting Drugan's testimony was not error under either standard of review. Evidence of GSR analysis is highly relevant in gunshot homicide cases and is “not rendered prejudicial merely because it is inconclusive.” Commonwealth v. Benoit, 382 Mass. 210, 221 (1981). See Commonwealth v. Pytou Heang, 458 Mass. 827, 851 (2011) (no error in judge admitting, over defendant's objection, expert testimony regarding GSR found on defendant's clothing because testimony was relevant and its probative value “was not substantially outweighed by the danger of unfair prejudice or the risk of misleading the jury”); Commonwealth v. Johnson, 463 Mass. 95, 107–108 (2012) (no error in judge admitting expert testimony about presence of GSR on defendant's sweatshirt and glove because it was probative and entirely relevant). Here, we find no error in admitting Drugan's testimony. However, even if the judge did err by allowing Drugan to testify that only twenty-five percent of his GSR analyses produce positive results, such error was not prejudicial (nor did it create a substantial risk of miscarriage of justice). Among other factors, we consider the other evidence against Smith, the tempering effect of Smith's cross-examination of Drugan regarding the GSR analysis and Smith's own ballistic expert's testimony, the comparative brevity of Drugan's testimony in a five-day trial, and the judge's jury instructions about weighing expert testimony.
Judgment affirmed.