Com. v. Phoenix

• Decision Date: 28 February 1991
• Citation: 409 Mass. 408,567 N.E.2d 193
• Parties: COMMONWEALTH v. Kenneth P. PHOENIX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 193

567 N.E.2d 193

409 Mass. 408

COMMONWEALTH v. Kenneth P. PHOENIX.

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Nov. 8, 1990.

Decided Feb. 28, 1991.

Linda J. Thompson (John M. Thompson, Springfield, with her), for defendant.

Ariane D. Vuono, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

The defendant, Kenneth P. Phoenix, was convicted of murder in the first degree for the killing of Raymond Green. On appeal, he challenges: (1) the Commonwealth's use at trial of testimony regarding evidence that was not preserved; (2) the admission in evidence of the results of allotype genetic testing of blood; (3) the motive theory characterizing the defendant as a disgruntled employee and the Commonwealth's alleged insinuation of a racial animosity motive; (4) the prosecutor's closing argument noting the defendant's failure to present alibi evidence; (5) the judge's rulings and instructions regarding a witness's claim of his privilege against self-incrimination; (6) the judge's instructions in response to a jury question on malice aforethought; and (7) the judge's denial of a motion for a required finding of not guilty. The defendant also asks us to use our power under G.L. c. 278, § 33E, to order a new trial. We affirm the conviction.

Raymond Green was the power plant facility manager at the Belchertown State School, supervising sixty-three employees including the defendant. He worked in an office on the second floor of the powerhouse on the school grounds. On August 4, 1986, Green's secretary found him dead in his office, shot five times by a .22 caliber firearm. The police retrieved pieces of a green scouring pad from Green's face and from the floor of his office. In a metal drum on the first floor of the powerhouse, they also discovered a crumpled brown paper bag and a rolled-up piece of green scouring pad. The drum was situated next to the entrance to a tunnel system that connected the powerhouse with other school buildings. Subsequent examination of the bag revealed several blood stains, one of which contained a fingerprint belonging to the defendant. After chemical treatment, additional fingerprints appeared. Of these fingerprints, those that were identifiable also were determined to be the defendant's.

The Commonwealth's theory was that the defendant entered the powerhouse undetected through the tunnel system and went to Green's office while Green was out getting his lunch. According to the theory, the defendant constructed a homemade silencer by wrapping a gun in a green scouring pad and placing it in a paper bag. When Green returned to his office, the defendant shot him five times at point blank range. The defendant escaped through the tunnel system, dumping the bag and the scouring pad in the metal drum on his way out. The weapon was not recovered. On June 3, 1988, a jury returned a verdict of guilty of murder in the first degree.

1. The failure to preserve evidence. According to testimony, the Commonwealth subjected the bag and scouring pad to various testing procedures immediately after the murder and up through the time of trial. On August 6, a State trooper delivered the bag to the Connecticut State crime laboratory (Connecticut lab), where, still in its crumpled state, forensic specialists photographed it and examined it by laser for fingerprints. The trooper then brought the bag to the Massachusetts crime laboratory (Massachusetts lab) where officials opened it up, revealing what appeared to be blood stains and a fingerprint in blood. Before applying any chemical treatment, they photographed both the bag and the fingerprint. Chemist Mark Grant then cut out a small blood-stained section of the bag adjacent to the blood fingerprint, to preserve it for testing. Another photograph was taken. Grant tested the stain and concluded it was human blood type "O."

Grant testified that he observed a small hole in the bag which he characterized as consistent with the size of a .22 caliber bullet. He tested a darkened area around the hole and found lead residue. By the time of trial, some unidentified person had taken further cuttings from the bag, including from the area surrounding the hole, so that the hole and lead residue were no longer apparent. No photographs were made of the hole.

One of Grant's colleagues then treated the bag with a collodion spray to enhance the blood print. Afterward, the trooper transported the bag back to the Connecticut lab, where a chemist applied a ninhydrin solution. This process exposed nine additional latent prints. It also, however, washed away the print in blood.

Grant also tested the green scouring pad, and found blood residue and gunpowder particles on it. He discovered green fibers inside the bag, and examined them both under a microscope and through infrared analysis. He determined that they were similar in appearance and chemical structure to the fibers of the green scouring pad. He did not test the fibers for gunpowder or blood. The bulk of the fibers found in the bag were not offered in evidence. The Commonwealth did offer an envelope that it claimed contained a few small fibers that remained after testing. By the time the judge examined the envelope, however, even these fibers were not apparent.

The defendant contends that the Commonwealth and its agents intentionally destroyed the blood fingerprint, the alleged bullet hole in the paper bag, and the fibers allegedly found inside the bag. He argues that the judge should not have allowed the Commonwealth to present testimony relating to any of this unavailable evidence. The failure to exclude the testimony, according to the defendant, violated his right to due process, and requires a new trial.

"[W]hen potentially exculpatory evidence is lost or destroyed, a balancing test is employed to determine the appropriateness and extent of remedial action. The courts must weigh the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant." Commonwealth v. Olszewski, 401 Mass. 749, 755, 519 N.E.2d 587 (1988), quoting Commonwealth v. Willie, 400 Mass. 427, 432, 510 N.E.2d 258 (1987). See Commonwealth v. Troy, 405 Mass. 253, 261, 540 N.E.2d 162 (1989). ¹ With this test in mind, we consider each piece of missing evidence in turn.

(a) The blood fingerprint. The defendant contends that the destruction of the blood fingerprint on the bag unfairly deprived him of the opportunity to conduct an independent examination and analysis of it. Considering the culpability factor first, we cannot discern any fault on the part of the Commonwealth in the destruction of the blood fingerprint. The Commonwealth was faced with a choice of either applying the ninhydrin solution to raise latent prints (that may have been exculpatory to the defendant) or preserving the original blood print. The decision arose in the course of the police investigation before the defendant had become a suspect or could have participated in the choice. Before attempting to raise additional prints, the Commonwealth carefully photographed the blood print in its original state. ² The chosen course of action was entirely reasonable. Cf. Commonwealth v. Shipps, 399 Mass. 820, 836, 507 N.E.2d 671 (1987) ("Any culpability of the Commonwealth [due to its use of a destructive testing procedure in the investigation stage of a crime] arises in the failure to photograph each step of the test procedure").

With respect to prejudice, the Commonwealth's two fingerprint experts based their trial testimony on the photograph of the print before it was washed away, not on the actual print itself. The defendant had ready access to the photograph and could easily have arranged to have his own expert analyze it. Moreover, the defendant, after an extensive voir dire, acquiesced in the admission of the photograph in evidence. The defendant could not have been prejudiced by the testimony of the Commonwealth's experts regarding evidence to which he had access. Cf. Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197-198, 539 N.E.2d 1017 (1989) (in a civil case unfair prejudice results from the use of an expert opinion based on physical evidence that the expert subsequently destroyed).

Nevertheless, the defendant now contends that access to the original print was crucial to account for certain inconsistencies between the photographed blood print and an inked print of the defendant taken later. He also argues that the fingerprint might have provided additional blood to be used in DNA testing. See part 2, infra. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Shipps, supra 399 Mass. at 836, 507 N.E.2d 671, quoting United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400-2401, 49 L.Ed.2d 342 (1976). The defendant must establish "a 'reasonable possibility, based on concrete evidence rather than a fertile imagination,' that access to the '[destroyed evidence] would have produced evidence favorable to his cause.' " Commonwealth v. Neal, 392 Mass. 1, 12, 464 N.E.2d 1356 (1984), quoting State v. Michener, 25 Or.App. 523, 532, 550 P.2d 449 (1976). The Commonwealth's experts attributed the inconsistencies between the blood print and the inked print to the different conditions under which the prints were obtained. Both experts testified that the inconsistencies did not affect their ability to make an identification. Thus, there is no basis for a determination that there is a reasonable possibility that an examination of the original print would have produced a different explanation for the inconsistencies that would have been exculpatory. Further, the record does not support a determination that the blood contained in the fingerprint, when combined with the blood from the other stains on...