Com. v. Devlin

• Decision Date: 22 April 1974
• Citation: 310 N.E.2d 353,365 Mass. 149
• Parties: COMMONWEALTH v. Richard L. DEVLIN (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 353

310 N.E.2d 353

365 Mass. 149

COMMONWEALTH v. Richard L. DEVLIN (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 1973.

Decided April 22, 1974.

Rudolph F. Pierce, Boston (Charlotte Anne Perretta, Boston, with him), for defendant Devlin.

Kirk Y. Griffin, Boston, for defendant Wilson.

Stephen R. Delinsky, Asst. Dist. Atty. (Thaddeus R. Beal, Jr., Deputy Asst. Dist. Atty., with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and WILKINS, JJ.

WILKINS, Justice.

The defendant Devlin appeals from a conviction of manslaughter in the death of one John James Rooney, Jr., on an indictment charging him with murder in the first degree. The defendant Wilson appeals from a conviction of being an accessory after the fact to manslaughter on an indictment charging him with being an accessory after the fact to the murder of Rooney. See G.L. c. 274, § 4. The cases were tried together before a jury under the provisions of G.L. c. 278, §§ 33A--33G.

In June, 1971, a human torso, badly decomposed, a hatchet imbedded in its chest, and missing its head, both hands, its right leg and external genitals, was discovered in the sea marsh at Patten's Cove, an inlet of Boston harbor, in the Dorchester section of the city of Boston. An autopsy established that the torso was that of a white male between the late teens and forty years of age and that death had been caused by a gunshot wound. Although there was very little skin remaining on the torso, a determination was made from a small section of skin that the victim had had a tattoo on his left arm. In the absence of the head, which might have permitted identification of the victim through dental X-rays, and the absence of the hands, which might have permitted identification through fingerprints, normal procedures for the identification of the body were not available. X-rays of the torso were taken.

At his time the Boston police department had in its files a statement that one John James Rooney, Jr., had been shot at 2 Deer Street, Dorchester, in the early morning hours of March 17, 1971. Rooney was a white male within the age span attributed to the torso found at Patten's Cove. Evidence at the trial showed that Rooney had had a tattoo on his left arm.

In a way not disclosed on the record, an associate medical examiner for Suffolk County became aware that the Boston City Hospital had X--rays of Rooney in its files. In September, 1970, as an outpatient Rooney had had two X-rays taken of his spine in the course of diagnosis of the cause of back pains; on March 9, 1971, he had again been admitted to the outpatient X-ray department of the Boston City Hospital and had X-rays taken of his right shoulder. The associate medical examiner enlisted the assistance of a radiologist, Dr. John Leland Sosman, to identify the torso. Dr. Sosman concluded that the torso was that of the same person under whose name the X-rays had been taken at Boston City Hospital.

The defendants contend first that it was prejudicial error to admit the opinion testimony of Dr. Sosman that the torso was that of the person who, under the name of John Rooney, Jr., had X-rays taken in September, 1970, and early March, 1971. ²

Secondly, Devlin contends that he was denied his constitutional right to confront witnesses against him because of the admission in the joint trial of extrajudicial statements by Wilson which Devlin claims were inculpatory of him. Finally, Wilson argues that his motion for a new trial should have been allowed, or at least should now be considered further in the Superior Court, Because the Commonwealth's principal witness against him committed perjury, because the Commonwealth did not adequately disclose promises made to that witness and because the Commonwealth improperly failed to furnish information which would have permitted the impeachment of that witness with records of prior convictions. The circumstances relating to these various contentions are set forth subsequently in this opinion. There was no error.

1. The opinion of Dr. Sosman that the X-rays of Rooney taken at the Boston City Hospital in 1970 and 1971 (the ante mortem X-rays) were of the same person as the X-rays of the torso found in June, 1971 (the post mortem X-rays) was properly admitted.

The admission of expert testimony lies largely in the discretion of the trial judge. Commonwealth v. Spencer, 212 Mass. 438, 448, 99 N.E. 266 (1912); Commonwealth v. Millen, 289 Mass. 441, 483, 194 N.E. 463 (1935), cert. den. sub nom., Millen v. Massachusetts, 295 U.S. 765, 55 S.Ct. 924, 79 L.Ed. 1706 (1935); Commonwealth v. Stirling, 351 Mass. 68, 73--74, 218 N.E.2d 81 (1966). His ruling will be reversed on appeal only if it constituted an abuse of discretion or was otherwise tainted with error of law. Commonwealth v. Capalbo, 308 Mass. 376, 380, 32 N.E.2d 225 (1941). Commonwealth v. Bellino, 320 Mass. 635, 638, 71 N.E.2d 411 (1947). Clearly the subject of Dr. Sosman's testimony was not one of common knowledge on which the jury could reach a conclusion without expert assistance. Commonwealth v. Capalbo, supra, 308 Mass. at 379, 32 N.E.2d 225; Commonwealth v. Boyle, 346 Mass. 1, 4, 189 N.E.2d 844 (1963).

The defendants assert, however, that Dr. Sosman lacked the necessary qualifications to justify admission of his testimony that no two adult humans have the same bone configuration and that the ante mortem and post mortem X-rays taken were of the same body. In addition, they contend that it was necessary for the Commonwealth to establish that the theory used by Dr. Sosman had received 'a general acceptance by the community of scientists involved.' Commonwealth v. Fatalo, 346 Mass. 266, 269, 191 N.E.2d 479 (1963). ³ In order to assess these arguments of the defendants, a summary of salient portions of Dr. Sosman's testimony is required.

Dr. Sosman testified extensively concerning his education, training and experience. That testimony established far more than an adequate basis for the judge to rule that Dr. Sosman was a highly qualified radiologist of extensive experience in the practice and teaching of radiology and more particularly in the comparative analysis of X-rays of bones and joints. A major portion of his practice was devoted to the comparison of X-rays taken of patients at different times. In his practice he had viewed somewhere between 800,000 and 1,000,000 X-rays, involving comparisons of approximately 300,000 X-rays. He testified that the bone structure of each person has taken on unique characteristics by the time he is in his twenties. He said that as far as he knew no two human beings have the same bone configuration. Each individual is unique in that respect. He had himself once successfully conducted a 'double-blind study' to test his ability to match X-rays of the same person. ⁴ Dr. Sosman testified that he had used X-rays in other situations to identify unknown human remains but that he had never before testified in a criminal case as to the identification of unknown remains, and as far as he knew, no one else ever had. He was one of about three or four people in the country who did bone and joint work of the type he performed, and he did more than anyone else. Articles had been published in learned journals concerning identification of unknown human remains by X-ray. He had copies of some of them with him and mentioned several by name.

The judge ruled that Dr. Sosman was qualified to give an opinion concerning the identification of the torso. The defendants excepted. Dr. Sosman, using the X-rays and equipment for showing them, then explained what they showed. He also used a plastic model of the spine to point out the individual parts of the vertebrae which take on a slightly different shape in each individual and on which differences he based his identification. He testified that the two groups of X-rays were of the same person. He gave a detailed explanation of how he arrived at his conclusion, the steps he took and the circumstances he relied on. On cross-examination he testified that he reached his conclusion by visual comparison and not by measuring the points of reference he used. He agreed that there was no standard procedure established to conduct tests of the sort he did with the ante mortem and post mortem X-rays. He said that he found no points of dissimilarity between the two groups of X-rays.

From this description of the procedure followed by Dr. Sosman, we believe that it is clear that the subject on which Dr. Sosman gave his opinion was one which the judge could rightly find was within Dr. Sosman's field of experience. Additionally, Dr. Sosman's opinion as to the uniqueness of the bone structure of a mature human was one which the judge could reasonably have concluded Dr. Sosman was qualified to make.

The defendants contend that the opinions of Dr. Sosman were inadmissible because there has been no 'general acceptance by the community of scientists involved' of the 'scientific theory or instrument' used. Commonwealth v. Fatalo, supra, at 269, 191 N.E.2d 479. Certainly the use and reading of X-rays and the comparison of X-rays is a generally recognized medical practice. See McGrath v. Fash, 244 Mass. 327, 328--329, 139 N.E. 303 (1923). Thus we are not concerned with an unproven or disputed 'scientific instrument' as in the case of polygraphs and other devices. Nor are we concerned with a 'scientific theory' in the sense in which those words are used in the Fatalo case. Dr. Sosman's medical opinion that no two adults have identical bone structures was not the product of a 'scientific theory' but was, rather, the product of years of experience viewing tens of thousands of X-rays. The history of the admission of opinions of medical experts in this Commonwealth belies the defendants' contention that 'general acceptance' of a proffered medical opinion is a condition of the admissibility of that opinion in evidence....