Opinion
No. 15–P–1107.
06-06-2016
COMMONWEALTH v. Kyle D. WALLACE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kyle D. Wallace, appeals from the judgments on charges of breaking and entering, see G.L. c. 266, § 18, and larceny over $250 from a person sixty years of age or older, see G.L. c. 266, § 30(5). The defendant contends that (1) the trial judge erred in denying his motion for required findings of not guilty because the Commonwealth's evidence was not sufficient to prove that a fingerprint recovered at the scene had been impressed at the time of the crime; (2) the Commonwealth's expert testimony that the latent fingerprint found at the scene was an exact match to the defendant's was an error that created a substantial risk of a miscarriage of justice; (3) the expert's methodology was not sufficiently explained at trial (and trial counsel was ineffective for failing to object to the error); and (4) there was error in the prosecutor's closing argument. We conclude that the evidence was sufficient, but that errors in the Commonwealth's expert's testimony created a substantial risk of a miscarriage of justice. Accordingly, we reverse.
Sufficiency. The defendant contends that the trial judge erred in denying his motion for required findings because the Commonwealth's evidence failed to prove beyond a reasonable doubt that the defendant committed the breaking and entering or the larceny. We review the evidence and make all reasonable inferences in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979).
The jury could have found the following facts. The homeowners had lived in their home in Falmouth for seven years by the time of trial. The home sat on a highly traveled road near shops and the beach, but the yard was not used as a cut-through or a public path. On the afternoon of June 28, 2012, the wife left the home at about 12:30 P.M. and the husband left the home between 3:00 P.M. and 3:15 P.M. When they left, the home's curtains were drawn and the screens, windows, and doors of the home were secured or locked. When the wife returned between 4:20 P.M. and 4:30 P.M., she found the kitchen cabinets and drawers, and the bedroom closets and dressers open. Her jewelry box was open and empty. The value of the goods stolen was between $9,000 and $10,000.
The wife also found the curtains pulled back and the screen missing from a window on the left side of the house. No other window screens were missing. Barnstable County sheriff's department Deputy Sean Percy located the missing screen lying next to the house, and lifted one latent fingerprint “[o]n the trim of the window near the locking mechanism.” He testified that the latent print was a “100 percent” match to the fingerprint of the defendant. The jury could have inferred that the latent print was found on the trim in a place accessible only from the inside of the home when the screen was in place. The homeowners did not know the defendant, and they had not invited him to the home or to the property.
Although the testimony that the print was a “100 percent match” erroneously was admitted, see infra, “the constitutional sufficiency of the evidence under ... Latimore, [supra], is to be measured upon that which was admitted in evidence without regard to the propriety of the admission.” Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 98 (2010).
“[T]he presence of a fingerprint at the scene of the crime is not by itself a sufficient basis for submitting a case to a jury.” Commonwealth v. Fazzino, 27 Mass.App.Ct. 485, 487 (1989). Fingerprint evidence must be coupled with evidence that “reasonably excludes the hypothesis that the fingerprint [ was] impressed at a time other than when the crime was being committed.” Ibid. See Commonwealth v. Morris, 422 Mass. 254, 257 (1996). The inference that the fingerprint was on the inside of the screen, together with the relatively short (one and one-half hour) time period during which the screen was removed from the window, the fact that the homeowners did not know the defendant and had not invited him to their home, and the fact that the window was found in their private yard area, was sufficient to reasonably exclude the hypothesis that the fingerprint could have been imprinted at a time other than when the crime occurred. See Commonwealth v. LeClaire, 28 Mass.App.Ct. 932, 934 (1990) ; Commonwealth v. Palmer, 59 Mass.App.Ct. 415, 420–421 (2003).
This result is supported by our decision in Commonwealth v. French, 88 Mass.App.Ct. 477, 479, further appellate review granted, 473 Mass. 1104 (2015). Even under the dissent's view in French, however, the evidence against the defendant at bar is sufficient. Unlike in French, the homeowners' yard here was not “generally accessible to the public,” id. at 487 (Agnes, J., dissenting), nor was the window screen left along a public way in excess of eleven hours. Compare id. at 486 (Agnes, J., dissenting). Morris, supra, is distinguishable on the basis that the mask in Morris was easily carried, whereas the screen here, in normal circumstances, is affixed to the home.
Expert testimony. “Testimony to the effect that a latent print matches, or is ‘individualized’ to, a known print, if it is to be offered, 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. Gambora, 457 Mass. 715, 729 n. 22 (2010). The defendant contends that the expert's testimony was improper because it expressed certainty about the match.
On direct examination, the prosecutor asked its fingerprint expert, Deputy Percy, if any of the fingerprints provided as possible matches was “an exact match to the fingerprint [he had] lifted off” the screen. Deputy Percy answered, “Yes.” He then stated that the fingerprint was the defendant's. Later in direct examination, the witness stated that the match “looks like it's—it's 100 percent” and that he was “100 percent” confident that the fingerprints matched.
Even if Deputy Percy's affirmative answer to the prosecutor's question as to “an exact match” between the latent print and the defendant's print is construed as opinion rather than fact, it was error. The witness's other statements, that the print “looks” like a match and that he was confident and sure of the match, reinforced that opinion. See Commonwealth v. Joyner, 467 Mass. 176, 183 (2014). The testimony offered repeatedly on direct examination constituted testimony “expressing absolute certainty about” the identification of a latent print, and was error. Gambora, supra. Contrast Commonwealth v. Drayton, 473 Mass. 23, 30 (2015) (no error where expert's testimony that she was “positive” about match admitted through cross-examination).
Because defense counsel did not object nor move to strike, we review to determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Almeida, 42 Mass.App.Ct. 607, 611 (1997). “[A]lthough the evidence is sufficient under the ‘rational trier of fact’ test, ... Latimore, [supra at] 677 ..., it is far from overwhelming.” Commonwealth v. Little, 453 Mass. 766, 775 (2009). The fingerprint was the only evidence of the defendant's presence at the scene of the crime. Unlike those cases where we have concluded that there was no substantial risk of a miscarriage of justice, there was no other evidence here linking the defendant to the crime. For example, there was no deoxyribonucleic acid evidence linking the defendant to the scene, see Commonwealth v. Bonnett, 472 Mass. 827, 831n. 5 (2015), nor did the defendant admit to touching the object on which his fingerprint was found, see Gambora, supra at 728. Unlike in Commonwealth v. Whitaker, 460 Mass. 409, 422–423 & n. 26 (2011), the defendant did not confess to committing the crimes.
The defendant sought to blunt the effects of this testimony by pointing to an example of incorrect fingerprint identification made in connection with the investigation of a bombing in Madrid. However, the expert's response was to insist, again, that he was “100 percent sure” about the match in this case. He distinguished the Madrid case by testifying that the quality of the latent fingerprint there was “not well—very well at all,” while the quality of the fingerprint in this case was “very high and very good,” thus suggesting a superior scientific basis for his opinion in this case. He also testified that fingerprint match analysis “is an exact science.” This testimony exacerbated the error.
The expert's repeated assertions of certainty, coupled with the lack of other evidence, produced a trial in which the erroneously proffered expert testimony may have “ ‘materially influence[d]’ the guilty verdict,” and thus created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (citation omitted).
Remaining issues. a. Methodology. The defendant contends that the methodologies of a fingerprint expert witness must be admitted in evidence before an expert's testimony regarding a fingerprint may itself be admitted, relying on precedent requiring such methodological evidence in the context of ballistics identification. See Commonwealth v. Pytou Heang, 458 Mass. 827, 847 (2011). No such requirement exists for fingerprint identification under current case law. See Gambora, supra at 729n. 22; Joyner, 467 Mass. at 184.
Where the testimony was proper, there is no basis for the defendant's claim that his counsel was ineffective for failing to object to its admission. See, e.g., Commonwealth v. Collins, 470 Mass. 255, 270 (2014).
b. Closing argument. The defendant contends that the prosecutor's closing argument was improper because it was excessively speculative and misstated the law of joint venture. We agree that the prosecutor's argument misstated the law of joint venture. See Commonwealth v. Silva, 471 Mass. 610, 621 (2015). However we are confident that upon retrial the error will not be repeated.