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,
Background. The evidence would have warranted the jury in finding the following.
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.
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.
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.
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 (2011), cert. denied, 132 S.Ct. 1739 (2012), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The inferences drawn by the jury need only be reasonable and possible and need not be
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, quoting Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001).
By way of background, and as noted in Commonwealth v. Gambora, 457 Mass. 715, 726-727 (2010) (Gambora), "courts historically have found fingerprint evidence to be admissible." See Commonwealth v. Patterson, 445 Mass. 626, 644 (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, cert. denied, 304 U.S. 565 (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).
With this framework in mind, we turn to the defendant's challenge to the sufficiency of the expert testimony as a basis for identifying him. Foley testified that a fingerprint contains both a general pattern, such as whorls, loops, or arches, and minutia points, which are details formed where the ridges begin, end, join, or bifurcate. Foley noted that "as far as everyone is concerned among the discipline of fingerprints, no two people have ever been found to have the exact fingerprints. Twins will have the same pattern sometimes. But they will not have the same minutia points." In explaining the ACE-V methodology, Foley testified that a fingerprint examiner first analyzes a latent print to ensure that it displays a sufficient number of minutia points for comparison purposes. The examiner then compares the latent print to a known print. In the evaluation stage, the examiner "make[s] a decision[:] `No, it's not this person. Yes, it is this person.'" Finally, another examiner verifies the first examiner's work.
The prosecutor did not ask Foley to testify explicitly to his opinion regarding whether latent No. 4 matched the defendant's rolled thumb print,
The defendant argues that Foley's testimony was insufficient
The DNA cases relied on by the defendant are inapposite. Whereas those cases address the admissibility of expert DNA testimony in the absence of accompanying statistical evidence, see Commonwealth v. Mattei, supra at 855; Commonwealth v. Curnin, supra, the issue in this case is the sufficiency of fingerprint evidence whose admissibility is not disputed. Although we have recognized the "necessarily probabilistic" nature of fingerprint identification evidence, we have not required the Commonwealth to provide accompanying statistical information like that sought by the defendant. See Commonwealth v. Beausoleil, 397 Mass. 206, 217 n.15 (1986); Commonwealth v. Drayton, 386 Mass. 39, 50 (1982). Indeed, in Gambora, 457 Mass. at 723, 727, we noted the absence of such statistical evidence, yet affirmed the continuing admissibility of fingerprint identification testimony based on the ACE-V methodology.
The weight and credibility to be accorded the identification
The defendant maintains that the presence of a smear on the top portion of latent No. 4 precluded the jury from finding that the fingerprints matched. "[L]atent print impressions left at crime scenes are often partial impressions of a full fingerprint"; "[t]he uniqueness of two full fingerprints does not, in and of itself, prove that one small portion of a fingerprint cannot mirror one portion of another fingerprint." Patterson, 445 Mass. at
Based on Foley's testimony, the jury could have found that the fingerprint lifted from the crime scene was left there by the defendant, and the additional evidence that the defendant had the same height and skin tone as the perpetrator further supported this inference. The jury also could have concluded, based on the testimony of Saab, the store owner, and Alexander, the cashier, that the defendant could not have touched the cash
b. Force. The defendant also challenges the sufficiency of the Commonwealth's evidence as to the "force" element of armed robbery.
To support a conviction for armed robbery based on fear, the Commonwealth must establish actual fear or apprehension on the part of the victim. See id. at 304; Commonwealth v. Novicki, 324 Mass. 461, 465-467 (1949) (finding no robbery where there was no evidence that fright of victim when she observed robber, of whom she had been unaware, leaving bank cage with money was factor in taking that money from her constructive possession). "Whether actual or constructive force [i.e., fear] is employed, the degree of force is immaterial so long as it is sufficient to obtain the victim's property `against his will.'" Commonwealth v. Jones, 362 Mass. 83, 87 (1972), quoting G. L. c. 277, § 39. In general, the Commonwealth can establish fear by showing "objectively menacing conduct by the defendant,... undertaken with the intent to put the victim in fear" (citation omitted). Commonwealth v. Souza, 428 Mass. 478, 491 n.25 (1998), quoting Commonwealth v. Marcotte, 18 Mass.App.Ct. 391, 394 (1984). See Commonwealth v. Marcotte, supra at 395 n.2 ("In the ... usual situation, where there is
Applying this standard, we conclude that the Commonwealth presented sufficient evidence of fear. Alexander testified that the masked intruder demanded "all the fucking money," while brandishing a gun. The jury could infer from this objectively menacing conduct that the defendant had in fact instilled fear in Alexander, who responded by immediately handing over the cash drawer. See Commonwealth v. Souza, supra; Commonwealth v. Richards, 363 Mass. at 301, 304-305; Commonwealth v. McCarthy, 360 Mass. 566, 568 (1971). Alexander's testimony that he "wasn't looking at the [intruder's] eyes too much" and Delvalle's testimony regarding Alexander's nervous demeanor and fast speech provided additional evidence of fear. Although Alexander maintained that he was not afraid, the jury could have rejected this portion of his testimony as "false bravado." See Commonwealth v. Davis, 70 Mass.App.Ct. 314, 316 n.3 (2007).
2. Closing argument. The defendant argues that the prosecutor misstated the evidence in her closing argument, thereby requiring a new trial. Because the defendant did not object to the statements at trial, we review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001). In closing argument, a prosecutor may not "misstate the evidence
The defendant maintains that the prosecutor misstated the evidence when she argued that, according to Delvalle's testimony, he saw the perpetrator in the surveillance video touch "the back of the drawer," the location where investigators discovered latent No. 4. Although Delvalle did not refer specifically to "the back of the drawer," he testified that "from the video surveillance, we kind of had an idea of where the suspect touched the drawer and [police were] able to recover the prints from those areas." When combined with other evidence that police recovered latent No. 4 from the back of the drawer, this testimony supports the reasonable inference that Delvalle saw the perpetrator touch this area.
3. Probation revocation. The defendant argues that the judge at his probation revocation hearing, who also presided at his criminal trial, violated his due process rights by prohibiting him from presenting additional evidence as to whether he committed the robbery. A probation revocation hearing involves a two-stage process, in which a judge first determines whether a probationer violated a condition of probation and then, if so, decides
Although a probationer is not entitled to the full panoply of constitutional protections afforded in a criminal trial, due process requires certain minimum rights at a probation revocation hearing, including the right to present evidence in defense. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 786 (1973), citing Morrissey v. Brewer, 408 U.S. 471 (1972); Commonwealth v. Kelsey, 464 Mass. 315, 319-320 (2013); Commonwealth v. Durling, 407 Mass. at 112-113. Even when the alleged probation violation consists of a new crime, a judge need find only by a preponderance of the evidence that a violation has occurred. See Commonwealth v. Kelsey, supra at 324-325. Because it rests on a finding of guilt beyond a reasonable doubt, however, "[a] criminal conviction ... adequately protects the probationer's right to due process, and may serve as the basis for a summary [finding of a probation violation] even though the judge lacks the factual information to make an independent determination that a probation violation has occurred." Commonwealth v. Maggio, 414 Mass. 193, 198 (1993), citing Rubera v. Commonwealth, 371 Mass. 181-182 (1976). See Carchman v. Nash, 473 U.S. 716, 731-732 (1985); Commonwealth v. Holmgren, 421 Mass. 224, 227-228 (1995).
Accordingly, at the first stage of the hearing, the judge properly could have relied on the defendant's conviction of armed robbery, and need not have permitted introduction of the proposed evidence revisiting the jury's verdict. See Commonwealth v. Odoardi, 397 Mass. 28, 34 (1986) (after conviction, judge could limit cross-examination during probation revocation hearing because "[w]e do not interpret Gagnon [v. Scarpelli, 411 U.S. 778,] to mean that a judge is without discretion to limit or curtail irrelevant or redundant inquiries"). That the defendant did not introduce the evidence before the jury does not render its exclusion from the probation revocation hearing a violation
As to the second stage of the hearing, once the judge determines that a probation violation has occurred, a probationer still has the right "to present ... mitigating circumstances and to put [the] probation violation in [the] `best possible light.'" Commonwealth v. Pena, 462 Mass. 183, 188 (2012), quoting United States v. Morin, 889 F.2d 328, 332 (1st Cir. 1989). The excluded evidence here, however, went to the first stage of the hearing, and the judge acted properly in declining to consider it at the second stage. See Commonwealth v. Milot, 462 Mass. 197, 202 (2012).