Commonwealth v. Joyner

• Decision Date: 14 February 2014
• Docket Number: SJC–11349.
• Citation: 4 N.E.3d 282,467 Mass. 176
• Parties: COMMONWEALTH v. Justin JOYNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 176

4 N.E.3d 282

COMMONWEALTH

v.Justin JOYNER.

SJC–11349.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Oct. 8, 2013.

Decided Feb. 14, 2014.

Emily A. Cardy, Committee for Public Counsel Services, for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

A latent fingerprint left by a masked intruder who had demanded the contents of the cash register at a Brockton gasoline station convenience store led to the defendant's arrest for armed robbery. The defendant was thereafter convicted by a Superior Court jury of armed robbery, G.L. c. 265, § 17. The defendant appeals from his conviction and from the revocation of his probation which resulted therefrom. The defendant's principal claim on appeal concerns the fingerprint evidence, which was the primary evidence tying him to the crime. He argues that the Commonwealth was required to, but did not, present evidence of the standard used to match fingerprints and the statistical significance of a fingerprint match in accurately identifying an individual and, therefore, that the fingerprint evidence was insufficient to prove beyond a reasonable doubt that the defendant was the robber. The defendant argues also that his conviction must be overturned because there was no evidence of force, a required element of armed robbery,¹ and because the prosecutor misstated the evidence in her closing argument, creating a substantial risk of a miscarriage of justice. Additionally, the defendant contends that his due process rights were violated when the trial judge, who conducted a probation revocation hearing after the trial, prohibited him from presenting evidence on his own behalf. We affirm the conviction and conclude also that there was no error in the revocation of the defendant's probation.

Background. The evidence would have warranted the jury in finding the following.² On the night of November 29, 2009, Kentoria Alexander was working as a cashier at a gasoline station convenience store in Brockton. Alexander was the only employee working at that time, and no customers were in the store or at the gasoline pumps. A man who was approximately six feet, one or two inches tall walked into the store wearing a “hoodie”; because the hood was up and a bandana was tied around his face, Alexander could see only the man's eyes and exposed hands. Alexander “wasn't looking at [the man's] eyes too much,” but he saw that the skin color of the man's hands was light, although not pale white. The man pulled out a gun and demanded the money from the cash register. Alexander took the cash drawer out of the cash register and threw it on the counter. The man picked up the drawer with his ungloved right hand; he walked to the door, stopped and removed the money from the cash drawer, then returned and put the drawer back on the counter before leaving. After the robber left, Alexander telephoned 911 and reported the incident.

Two police officers arrived at the scene soon thereafter. Officer Ruben Delvalle, who spoke with Alexander about the incident, described Alexander's demeanor as “a little nervous explaining what happened,” and reported that Alexander spoke “kind of fast.” Delvalle also observed an empty cash drawer in the center of the counter, and asked to view the store's surveillance footage. The store's owner, Ghazi Saab, was contacted; when he arrived, he and the officers viewed the video surveillance footage.³

Based on the surveillance footage, the officers “had an idea” as to “where the suspect touched the drawer,” and the fingerprints were recovered “from those areas.” Only those investigating the crime scene had access to the drawer after officers arrived on the scene. A Plymouth County deputy sheriff employed by the Bureau of Criminal Investigations (BCI) placed the cash drawer in an evidence bag and brought it to the BCI laboratory, where it was processed for latent fingerprints by Jason Molino, a forensic support analyst.⁴ Molino obtained four fingerprints that he believed to be of sufficiently good quality to permit comparison analysis. According to Molino, a certain number of “points” must be obtained from a fingerprint before it can go into the automated fingerprint identification system (AFIS), a fingerprint database. Molino took two “lifts” of a fingerprint which he obtained from the back of the drawer and marked as “latent No. 4.” This print was run through AFIS, and returned a possible match. Robert Foley, a former director of the BCI laboratory in Plymouth, then examined that print and compared it with a rolled fingerprint of the defendant's right thumb.

Saab had owned the gasoline station convenience store since 1997 and had replaced the store's cash register with a new one in 2009, before the November, 2009, robbery. The only individual permitted to touch the cash drawer at any given time was the shift employee. The defendant had never worked for Saab and, to Saab's knowledge, no customer had ever touched the cash drawer in the time he owned the store. Alexander had never worked with the defendant at the store, nor had he ever seen the defendant in the store in the seven months he had worked there.

At trial, the defendant was instructed to display his hands to the jury. Based on their observations of the defendant, the jury could have inferred that he was the same height as the perpetrator and had the same skin tone.⁵ However, because the perpetrator wore a mask and was not otherwise identified on the basis of distinctive physical characteristics, the primary evidence linking the defendant to the robbery was expert testimony concerning the fingerprints recovered from the cash drawer. The defendant challenges the sufficiency of the evidence identifying him as the perpetrator.

Discussion. 1. Sufficiency of the evidence. In considering a challenge to the sufficiency of the evidence, we “review the evidence in the light most favorable to the Commonwealth to determine whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Powell, 459 Mass. 572, 579, 946 N.E.2d 114 (2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1739, 182 L.Ed.2d 534 (2012), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). “The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable....” Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005), S.C.,450 Mass. 215, 877 N.E.2d 557 (2007), and 460 Mass. 12, 948 N.E.2d 1209 (2011), quoting Commonwealth v. Longo, 402 Mass. 482, 487, 524 N.E.2d 67 (1988). “Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense.” Commonwealth v. Lao, supra, quoting Commonwealth v. Giang, 402 Mass. 604, 609, 524 N.E.2d 383 (1988).

a. Identification based on expert fingerprint testimony. The Commonwealth introduced expert testimony from Foley, who at the time of trial had had forty years' experience in latent fingerprint analysis. Foley had compared latent No. 4 to the rolled fingerprint of the defendant's right thumb using the ACE–V methodology, so named because it involves a four-step process of analysis, comparison, evaluation, and verification. The defendant does not challenge the admissibility of Foley's testimony, but argues rather that the jury lacked sufficient evidence to evaluate it and therefore to identify the defendant as the perpetrator on the basis of the fingerprint. Although the defendant raises this issue for the first time on appeal, we consider the claim because “findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. Powell, 459 Mass. at 579, 946 N.E.2d 114, quoting Commonwealth v. Grandison, 433 Mass. 135, 140 n. 8, 741 N.E.2d 25 (2001).

By way of background, and as noted in Commonwealth v. Gambora, 457 Mass. 715, 726–727, 933 N.E.2d 50 (2010)( Gambora ), “courts historically have found fingerprint evidence to be admissible.” See Commonwealth v. Patterson, 445 Mass. 626, 644, 840 N.E.2d 12 (2005)( Patterson ) (discussing general acceptance by relevant technical community of latent fingerprint identification theory and ACE–V methodology); Commonwealth v. Bartolini, 299 Mass. 503, 513, 13 N.E.2d 382, cert. denied, 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531 (1938). In 2009, however, the National Research Council for the National Academy of Sciences (NAS) published a report questioning the scientific validity of latent print identification theory and the ACE–V methodology. See National Research Council, Strengthening Forensic Science in the United States, A Path Forward 142–144 (2009) (NAS Report).

The primary concern of the NAS Report, as noted in Gambora, 457 Mass. at 726, 933 N.E.2d 50, appears to have been “the need to prevent overstatement of the accuracy of fingerprint comparisons, and for additional research.” ⁶See id. at 736, 933 N.E.2d 50 (Spina, J., concurring) (“While the ‘science’ of fingerprint analysis may be valid, claims by its practitioners that the process can establish identity with absolute certainty are not”). We considered in Gambora, supra at 722, 724, 933 N.E.2d 50, the implications of the NAS Report in the context of a challenge to the admission of expert testimony that “individualized” two latent fingerprints to the defendant. “Individualization” means “a conclusion by the examiner that the particular evidence comes from ‘a single unambiguous source.’ ” Id. at 720 n. 5, 933 N.E.2d 50, quoting NAS Report, supra at 136. We cautioned that “[t]estimony 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...