Commonwealth v. Cintron

• Decision Date: 06 March 2003
• Parties: COMMONWEALTH v. JOSE CINTRON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 779

784 NE 2d 617

COMMONWEALTH v. JOSE CINTRON.

Supreme Judicial Court of Massachusetts, Hampden.

December 6, 2002.

March 6, 2003.

Present: GREANEY, SPINA, COWIN, & CORDY, JJ.

Michael Malkovich for the defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

SPINA, J.

The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal he claims that the trial judge erred by (1) failing to swear the jury before giving preliminary instructions, and (2) denying his motion to dismiss or, alternatively, to suppress certain fingerprint evidence, based on the Commonwealth's alleged failure to preserve a latent fingerprint found on a wooden slat. The defendant also claims (3) that he was denied the effective assistance of counsel where counsel conducted no cross-examination of the Commonwealth's fingerprint and deoxyribonucleic acid (DNA) experts, offered no evidence to refute their testimony, and in his closing argument suggested that the jury could accept the fingerprint and DNA evidence as irrefutable, and (4) that the prosecutor, in his closing argument, improperly suggested that the defendant had an obligation to refute the fingerprint and DNA evidence. We affirm the conviction and decline to exercise our power under G. L. c. 278, § 33E.

1. Background. The victim, a seventy-four year old woman, lived alone in a fifth floor apartment in Holyoke. On August 2, 1984, the victim's sister telephoned the Holyoke police after she went to visit the victim and found the apartment in shambles. The bedroom was dark, so she did not enter. The police arrived and entered the bedroom, where they discovered the victim's body lying face down on the floor. Blood was spattered and smeared throughout the apartment.

The victim suffered four lacerations and multiple contusions of her head, defensive wounds on her right hand, and three knife wounds to her back, two of which were stab wounds. One stab wound penetrated her small intestine. The second stab wound punctured her right lung, causing it to collapse and producing a significant loss of blood. The second stab wound also produced death and was likely accompanied by severe pain. A laceration above the victim's right eye was caused by blunt force from an object such as a club or a stick. Lacerations at the top and back of her head also were caused by a club or stick. One laceration at the top of her head was caused by a knife.

It could be inferred that robbery was the motive for the killing, as the victim's television set was missing, and two pocketbooks were open on the sofa with their contents spilled out. It also could be inferred that the intruder had entered the apartment through the bedroom window from a fire escape, as the window was open and there were no other signs of entry.

Among the items seized from the apartment were a wooden bed slat leaning against a bedroom wall,¹ a bloody rag from the kitchen floor, and a bloody rag from the bathroom. Blood stains were found on the curtains over the bedroom window that opened onto a fire escape. In the alley below the fire escape police found a bloody rag, a cardboard box with a bloody fingerprint, and a tin plate with blood on it.

Trooper Charles Yagodzinski of the State police photographed the apartment, the fire escape, and the items found in the alley before any item was seized. He also processed the scene for fingerprints and found two latent prints on the bedroom window sill, a bloody print on the wooden bed slat, and a bloody print on the box found in the alley. He sprayed the prints on the bed slat and the cardboard box with ninhydrin, a chemical that enhances the visibility of latent fingerprints but also accelerates their deterioration.

No witness to the murder was ever found. For eighteen months, hundreds of fingerprint cards were sent to Yagodzinski for comparison, but no match was made. As early as August 8, 1984, the chief of police of Holyoke suggested that the defendant be considered a suspect, and the defendant's fingerprint card on file with the Holyoke police department was sent to Trooper Yagodzinski. However, as Yagodzinski and his colleagues at the State police laboratory kept no record of whose fingerprint card was examined, there was no way of determining whether the prints on the defendant's card were ever compared at that time with the photographs of the crime scene prints.

In 1986, the State police acquired an automated fingerprint identification system (AFIS), a computerized fingerprint filing and identification system. Under AFIS, fingerprint images are first enlarged five times, and a hand tracing is made by a technician. The traced image is then reduced by a factor of five and scanned into the AFIS-equipped computer, where its features are converted mathematically (by trigonometric and logarithmic functions) into data that are then classified for purposes of comparison with other prints similarly processed. Between 1986 and 1997 fingerprint technicians repeatedly entered the prints found at the crime scene into AFIS, but no match was made. The defendant's fingerprints had been entered in the AFIS database, but they had not been matched to the crime scene prints.

In 1997, Lieutenant Brian O'Hara of the State police arranged for the manual review of fingerprint cards on file with the Holyoke police department because, in his experience, AFIS was not always reliable. Because there were approximately 40,000 cards and because the prints recovered from the wooden slat and the cardboard box had whirl patterns, he decided to examine only those cards with a "whirl" pattern. There were approximately 14,000 such cards, and O'Hara had estimated the task would take about 400 hours. Work began in July, 1997, and on October 16, 1997, the defendant's right middle fingerprint was matched to the latent fingerprints on the wooden slat and on the box. State police protocol requires eight points of comparison to make a positive identification. O'Hara found twenty-four points of comparison between the defendant's file card fingerprints and the prints on the slat and the box. The prints on the bedroom window sill leading to the fire escape were never identified.

The defendant had moved to Florida, and on November 7, 1997, Sergeant Stephen Griffin of the State police and Detective David Beauchemin of the Holyoke police department interviewed him there. The defendant told them that he had been at a shoeshine business in the basement of the apartment house where the victim lived, but had never been in any other part of the building. The defendant was arrested in Florida the next day and was returned to Massachusetts one month later.

On the Commonwealth's motion the defendant was ordered to produce a blood sample. The sample was forwarded to Cellmark Diagnostics for DNA analysis, together with blood samples from the rags found in the kitchen and bathroom of the victim's apartment, and the rag and the tin plate found in the alley. Using a polymerase chain reaction (PCR) based analysis, a statistical match was made between the defendant's DNA and the DNA extracted from the three bloody rags and the tin plate. The analysis excluded 99.9999992 per cent of the Caucasian population, 99.9998 per cent of the African-American population, and 99.9999996 per cent of the Hispanic population as the source of the DNA.

2. Motion to dismiss or suppress. The defendant filed a motion to dismiss the indictments or, alternatively, to suppress evidence of the fingerprint on the wooden slat based on the alleged loss or destruction of the fingerprint. An evidentiary hearing on the motion was conducted by a judge who was not the trial judge. While the motion was under advisement the defendant filed a supplemental motion to suppress the results of DNA testing on the ground that the testing was the fruit of the lost or destroyed fingerprint evidence. Both motions were denied.

The defendant argues that the motions should have been allowed because Trooper Yagodzinski failed to employ known methods to preserve the latent fingerprint found on the wooden bed slat, and because Yagodzinski photographed the prints after treating them with ninhydrin. He contends that the original print had so deteriorated because of the application of ninhydrin that by the time he was indicted only three points of comparison were discernible and his experts were unable to evaluate that print. The cardboard box, on which a second latent print was identified as the defendant's, had inexplicably disappeared and thus was unavailable for evaluation by the defendant's experts.² Although photographs of the latent fingerprints taken on August 2, 1984, by Yagodzinski were available to the defendant's experts for evaluation, the defendant contends that without the original prints he was denied both the opportunity to challenge the accuracy of the photographs of the ninhydrinenhanced fingerprints, which constituted the basis for identifying and arresting him, and therefore the validity of his arrest, which led to his blood sample for DNA testing.

A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden, Commonwealth v. Olszewski, 416 Mass. 707, 714 (1993), cert. denied, 513 U.S. 835 (1994), to establish "a `reasonable possibility, based on concrete evidence rather than a fertile imagination,' that access to the [evidence] would have produced evidence favorable to his cause" (citations omitted). Commonwealth v. Neal, 392 Mass. 1, 12 (1984). If he meets his initial burden, "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. Willie, 400 Mass. 427, 432 (1987). When reviewing the denial of a motion to...