Com. v. Santoli

• Citation: 424 Mass. 837,680 N.E.2d 1116
• Parties: COMMONWEALTH v. Anthony F. SANTOLI, Jr.
• Decision Date: 08 May 1997
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1116

680 N.E.2d 1116

424 Mass. 837

COMMONWEALTH v. Anthony F. SANTOLI, Jr.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Jan. 9, 1997.

Decided May 8, 1997.

Benjamin H. Keehn, Committee for Public Counsel Services (Larry Tipton, Committee for Public Counsel Services, with him), Boston, for defendant.

Robert C. Cosgrove, Assistant District Attorney, for Commonwealth.

Before WILKINS, C.J., and O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

WILKINS, Chief Justice.

We granted the defendant's application for direct appellate review to consider his request that we change this court's position on the admissibility of expert testimony concerning the capacity of eyewitnesses to make reliable identifications in particular circumstances.

In Commonwealth v. Francis, 390 Mass. 89, 98-101, 453 N.E.2d 1204 (1983), this court held that, although expert testimony on the capacity of eyewitnesses to make identifications is not admissible as of right, such testimony is admissible in the trial judge's discretion. We recently reaffirmed that principle in Commonwealth v. Hyatt, 419 Mass. 815, 818, 647 N.E.2d 1168 (1995). Although we see no reason to change our position, we shall take this opportunity to provide comments that may assist judges in the exercise of their discretion in this area. But first, we shall set forth evidence that warranted the jury verdict that the defendant was guilty of rape.

On the evening of April 21, 1992, while walking through Stoughton center on her way home from a friend's house, the sixteen year old victim was raped. She testified that, as she walked passed a pharmacy in a well-lit area, she glanced at a man as he passed by her. She first thought that the man was an acquaintance, but, after looking again, she realized he was not. She testified that, during the second look, she noticed the man's build, his face, and his height. The victim also noted that he was white, had brown hair, dark eyes, a big nose, and no facial hair. The man was wearing a leather jacket and a dark colored baseball cap, and was carrying a black case.

As she walked toward the train station, again in a well-lit area, the victim noticed that the man who had passed her earlier was walking toward her from the other side of the street. The man then grabbed the victim and steered her into a dark alley behind a nearby liquor store. When she screamed, and then began to cry, the man told her to shut up or he would kill her.

The man, who smelled of alcohol, ordered the victim to lie down next to a dumpster in the alley. He put the black case and a beer bottle from his jacket pocket on the ground. The assailant then ripped down her pants and raped her for ten to fifteen minutes. The man's face was right next to hers. The man then picked up his black case and the beer bottle, told the victim to get out of there, and left. The victim ran home and reported the rape to her father, who promptly called the police.

Officer Tracey Sisco arrived at the home about five minutes later. The victim described the assailant to the officer, who broadcasted the description by radio at 10:44 P.M. As a result of that broadcast, two detectives stopped the defendant in the parking lot of a Shaw's supermarket at 10:49 P.M. When they stopped him, the defendant was wearing a Bruins baseball cap with tags hanging from it, carrying a black pool cue case, and smelled of alcohol.

Officer Sisco, who was still at the victim's house, informed her that the police had stopped a suspect matching the description of her assailant and that Sisco was going to bring the victim to look at the person. As they drove into the Shaw's parking lot, the defendant was standing next to a police cruiser in a well-lit area. Officer Sisco testified that, as she slowly drove past the defendant, the victim, who had been given a cover of clothing to prevent her being identified, stated three times, "that's him." Officer Sisco asked her whether she was sure, and told her that it was important that she be certain. The victim again responded affirmatively.

It is significant, in deciding the principal issue on appeal, that the Commonwealth's case was not built solely on the eyewitness testimony of the victim. Chemical tests conducted on items worn by the defendant and the victim at the time of the incident showed that seminal fluid residue and blood found on the defendant's underwear and shirttail were consistent with a mixture of body fluids from the victim and the defendant. A similar mixture of fluids was found on the victim's T-shirt, sanitary napkin, and vaginal swabbing. The defendant was a Type O secretor with a PGM sub-type of 1+. Approximately thirty-six per cent of the population are Type O secretors. The victim, who was menstruating at the time of the incident, was found to be a Type A secretor, with a PGM sub-type of 1+. Approximately thirty-two per cent of the population are Type A secretors like the victim. Moreover, while the defendant was in custody, the police observed and photographed dried blood on the defendant's penis and scrapes on his knees.

The defendant's defense was one of mistaken identity. He testified that, prior to his arrest, he had been at several bars in Stoughton with a friend. He watched a Bruins hockey game until it ended at about 10:30 P.M. After the game, he and his friend left one bar and headed to another. The defendant then realized that he had left his pool cue case at an earlier bar. He then left his friend, returned alone to one of the bars they had been at earlier, retrieved his pool cue case, and then headed toward the Shaw's supermarket where he planned to buy a sandwich. The police stopped him in the supermarket parking lot. At trial, the defendant testified that he did not commit the crime. He explained that the blood on his penis was the result of an accident while attempting to scale a fence a few days earlier and the body fluids on his clothing were the consequence of intercourse on the night before the crime with a woman who did not testify.

The defendant's misidentification claim focused on asserted discrepancies between the defendant's actual height and the estimated height the victim gave to Officer Sisco; the difference in length between the black case seized from the defendant and the black case described by the victim; the victim's failure to notice the Bruins logo on, or the tags hanging from, the defendant's cap; and the fact that the victim did not describe any facial features to Officer Sisco, but did so at trial.

To aid in his misidentification defense, the defendant sought to introduce the expert testimony of a psychologist, Alexander Daniel Yarmey. Dr. Yarmey was presented as an expert on the application of perceptions and memory to eyewitness identification and testimony. His testimony, it was said, was intended to disabuse jurors of common misperceptions they might have regarding eyewitness identifications. The judge held an extensive voir dire, during which Dr. Yarmey testified that when a person is under high stress, less attention is given to cognitive skills and to the examination of details, circumstances that he said are contrary to the beliefs commonly held by lay persons. Dr. Yarmey testified further, among other things, that the presence of a weapon tends to divert attention from the perpetrator and to the weapon; that postevent suggestions can alter a witness's memory but lay people do not appreciate it; that people are subject to suggestions from an authority figure; and that a witness's expressed confidence level in an identification and the accuracy of that identification are not significantly related.

Following the voir dire, the judge ruled that he would exclude the expert's testimony pursuant to the discretion afforded him by Commonwealth v. Francis, 390 Mass. 89, 453 N.E.2d 1204 (1983). He ruled, among other things, that "[i]t is my judgment that the subject matter which [the expert] would testify to falls within the general realm of knowledge of jurors." The judge stated that he was "specifically not ruling that evidence of this nature can never come into the court. What I am doing here is exercising my discretion that in this particular case there are no special circumstances that would justify an exception to the general proposition that this proposed testimony cannot be received in court."

The defendant argues to us that the judge abused his discretion in excluding the expert testimony which, it is claimed, was carefully tailored to address identification issues in this case. He argues that, "[h]aving been terrorized and raped in a dark alley by an individual whom she believed had a weapon, the victim was told by the police that a suspect matching her description had been stopped nearby. Expecting to be shown her assailant, the victim was given a cover of clothing to prevent herself from being seen by the suspect, and then driven past the defendant, who was displayed alone next to a police officer and cruiser. Her expectations confirmed, the victim then expressed great confidence in positively identifying the defendant, a local resident whom she could easily have encountered previously under innocent circumstances."

In our recent opinion in Commonwealth v. Hyatt, 419 Mass. 815, 647 N.E.2d 1168 (1995), we noted that the weight of authority was against the admission of expert testimony of the sort involved here, but recognized that some jurisdictions favor its admission in particular circumstances. Id. at 818, 647 N.E.2d 1168. Federal Courts of Appeals treat the question as one of discretion in the trial judge. See United States v. Daniels, 64 F.3d 311, 315 (7th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 745, 133 L.Ed.2d 693 (1996); United States v. Brien, 59 F.3d 274, 277 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 401, 133 L.Ed.2d 320 (1995); United States v. Rincon, 28 F.3d 921, 923 (9th Cir.), cert. denied, 513 U.S. 1029, 115 S.Ct. 605, 130 L.Ed.2d 516 (1...