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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Pandolfino,
33 Mass.App.Ct. 96 (1992)
Appeals Court of Massachusetts,
.
No. 91‑P‑1334.
Argued
Decided
Further
Appellate Review Denied
Charles W. Rankin,
James F. Lang, Asst. Dist. Atty., for Com.
Before ARMSTRONG, DREBEN
and GREENBERG, JJ.
ARMSTRONG, Justice.
The
defendant appeals from the denial of his motion for a new trial following his
convictions of unarmed[33 Mass.App.Ct. 97] robbery and assault with intent to
kidnap. (FN1) The motion was based on ineffective
assistance of trial counsel for his alleged mishandling of a motion to suppress and for allowing
inaccurate and damaging statistical evidence to be considered by the jury.
The
evidence most favorable to the Commonwealth was along these lines. The victim, a woman in her early twenties,
was stopped at a red light in Wellesley Hills at
Officer Komola, meanwhile, left the victim with Lieutenant Whalen
and proceeded to the parking lot of St. James Church on Route 9 to take up
surveillance. About twenty to thirty
minutes after the attack, he spotted the defendant walking on Route 9 and
detained him because he matched the description given by the victim. The St. James Church lot was roughly one‑half
mile from the driveway where the car had been left. Officer Foley, notified that Officer Komola had detained a suspect, proceeded to St. James
Church and identified the defendant as the person he had seen earlier driving
the car that had left Route 9.
Lieutenant Whalen [33 Mass.App.Ct. 98]
then arrived at the church lot with the victim and her boyfriend. The victim identified the defendant as her
attacker ("That's him.... I didn't
see his face but that's him").
Officer Foley next took the victim to look at the car he had pursued
earlier, and she identified it as hers.
Inside was a ski mask. The
defendant had gloves in his pocket. At
trial a forensic chemist with the State Police Laboratory testified that he had
examined hairs found in the ski mask and that they were identical in
microscopic characteristics to one taken from the defendant.
[1] 1. The
defendant's trial counsel filed a motion to suppress the victim's parking lot
identification as the product of unnecessary suggestiveness by the police‑‑the
suggestiveness being that the defendant was (according to the victim's
testimony and the judge's finding) handcuffed and standing between two officers
(presumably Komola and Foley) when she viewed him in
the lot. The motion was denied (compare Commonwealth v. Harris, 395 Mass. 296,
298‑299, 479 N.E.2d 690 [1985]; Commonwealth v. Williams, 399 Mass. 60, 67‑68,
503 N.E.2d 1 [1987] ), and it is not now argued that the judge erred in denying
the motion as so framed. Rather, the
argument is that defense counsel was deficient in failing to move for
suppression on a different ground:
namely, that the defendant had been arrested without probable cause and
the identification was thus the product of an unlawful arrest. See and compare Commonwealth v. Howell, 394 Mass. 654, 656‑659, 477 N.E.2d
126 (1985).
[2] On the
facts of this case, we are of opinion that the additional ground would have
added nothing of substance to the motion.
True, we lack a finding whether the defendant was or was not "under
arrest"; the use of cuffs, if
necessary to accomplish a permissible inquiry, does not convert a Terry stop (FN3) to an arrest.
United States v. Purry, 545 F.2d 217, 220
(D.C.Cir.1976). United States v. Bautista, 684 F.2d 1286,
1289 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct.
1206, 75 L.Ed.2d 447 (1983). United States v. Taylor, 716 F.2d 701,
708, 709 (9th Cir.1983). United States v. Kapperman,
764 F.2d
786, 790 n. 4 [33 Mass.App.Ct.
99] (11th Cir.1985). See generally Commonwealth v. Borges, 395 Mass. 788, 792 n. 3, 482 N.E.2d 314
(1985);
Commonwealth v. Crowley, 29 Mass.App.Ct.
1, 4‑5 n. 6, 556 N.E.2d 1043 (1990).
The identification was not the product of an unlawful arrest if there
was one; it was the product of the
defendant's presence at the lot, which the police had a right, in this typical showup situation, to compel. (FN4)
His status as a lawful Terry
detainee or a possibly unlawful arrestee was causally irrelevant to the
identification. Cf. Commonwealth v. Tarver, 369 Mass. 302, 307‑310, 345 N.E.2d
671 (1975). So far as the identification
was concerned, the cuffs were material only as they bore on
suggestiveness. The judge's conclusion
that the identification was not the product of unnecessary suggestiveness is
not in dispute.
[3] 2.
Trial counsel is also faulted for (a) allowing the State Police chemist to
introduce damaging statistical evidence in the absence of proof that the
statistical evidence was accepted in the scientific community (FN5); (b) being unprepared to rebut the chemist's
erroneous statistics; and (c) failing to
object to the prosecutor's erroneous use of the statistics in his closing
argument. The statistical testimony came
in, however, without design, apparently catching both counsel by surprise. On direct examination, the prosecutor only
elicited testimony to the effect that the hairs found in the ski mask [33 Mass.App.Ct.
100] were consistent in microscopic
characteristics with the defendant's hair.
Compare Commonwealth v. Tarver,
369 Mass. at 310‑311, 345 N.E.2d 671; Commonwealth v. Murray, 17 Mass.App.Ct. 986, 459 N.E.2d 123 (1984);
Commonwealth v. Hyatt, 29 Mass.App.Ct.
140, 144, 557 N.E.2d 1172 (1990), S.C.,
409 Mass. 689, 568 N.E.2d 1148 (1991).
On cross‑examination, defense counsel asked whether the hairs from
the ski mask could be similar to those of a number of other people. The chemist's reply, going beyond what the
question called for, was, "I believe statistics state one in
40,000." Defense counsel then
asked whether the hairs could be similar to those of other people in the Boston
area. The chemist answered, "As I
said, statistics, one in 40,000. If
there are more than 40,000 in the Boston area, I would say yes." In closing argument, the prosecutor
compounded the problem by extrapolating:
"[I]f you wanted two people to have the exact hair, it would be
80,000 people. You would have to go to 80,000
people before you found two people where the hair was the same as far as color
and weight and characteristics and medulla, and so forth, and so on."
Affidavits
filed in support of the defendant's motion for a new trial indicate that the
statistic was based on a Canadian study reported in Gaudette
& Keeping, "An Attempt of Determining Probabilities in Human Scalp
Hair Comparison," 19 J. Forensic Sci. 599
(1974), and that the figure supported by that study is not one in 40,000 but
one in 4,500. Apart from that erroneous
starting point, the chemist's calculation that one would have to examine 40,000
random persons to find a hair match, and, a fortiori, the prosecutor's
calculation of 80,000, both involved mathematical error. See the mathematical appendix in People v. Collins, 68 Cal.2d 319, 333‑335,
66 Cal.Rptr. 497, 438 P.2d 33 (1968). (FN6)
[33 Mass.App.Ct.
101] Having in mind that ineffective
assistance of counsel involves a showing of "serious incompetency,
inefficiency, or inattention of counsel‑‑behavior of counsel
falling measurably below that which might be expected from an ordinary fallible
lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), we
see no deficiency in trial counsel's performance here that descends to that
level. The exchange with the chemist did
not work out advantageously for the defense;
but counsel had no reason to expect the statistical evidence that came
in, much less to be familiar with the Gaudette and
Keeping study or with the published literature contesting its methodology. (FN7)
The error in reciting the statistic was unfortunate; but ordinary, fallible counsel, having no reason
to expect statistical evidence, could not be expected to have personal
familiarity with scientific literature enabling him to spot the error. And counsel might, as a reasonable tactical
judgment, decline to move to strike damaging testimony (for unresponsiveness,
perhaps, or lack of foundation) after the jury has heard it, or move for a
continuance, so as to avoid [33 Mass.App.Ct. 102]
giving it emphasis. Compare
Commonwealth v. Williams, 25 Mass.App.Ct.
210, 214‑215, 517 N.E.2d 176 (1987).
Neither
the admission of the statistical evidence nor the fact that it was demonstrably
false would entitle the defendant to a new trial if that evidence has not
created a substantial risk of a miscarriage of justice. On balance we think that no such risk exists
here. The defendant was found near the
scene of the crime and near the place where the perpetrator had left the victim's
car shortly after the crime occurred, at 11:30 P.M. on a January night. He was evasive as to his presence (he claimed
to have been hitchhiking to Milford, west of Wellesley, but was walking on the
eastbound side of the highway when arrested).
His clothing matched the description given by the victim. He had scratch marks on his face, consistent
with the victim's account of her struggle with the attacker. He was identified with no uncertainty by the
victim, who, concededly, had not seen his face, but had been specific as to
coat, pants, mask, gloves, build, and color of skin. He was identified by Officer Foley as the
person he had seen driving the victim's car immediately after the crime. (Officer Foley had seen his face, albeit briefly.) His hair was consistent with the samples
taken from the ski mask the perpetrator had left in the victim's car. This evidence, cumulatively, pointed to a
strong, if not overwhelming showing that the defendant was in fact the
perpetrator. In this situation we think
that the statistical significance of the hair match had little effect on the
trial's outcome. (FN8) Compare
Commonwealth[33 Mass.App.Ct.
103]
v. Drayton, 386 Mass. 39, 49‑51, 434 N.E.2d 997 (1982). Contrast
United States v. Massey, 594 F.2d 676 (8th Cir.1979). (FN9)
3. We have
considered the other arguments pressed by the defendant. These are without merit, including the
argument based on what seemed to be the start of an improper appeal to emotion. This was deflected by objections of defense
counsel and a colloquy at the bench, after which the prosecutor took up a new
and proper line of argument.
Order denying motion for new trial affirmed.
(FN1.) He was also convicted of assault and
battery, but the conviction was placed on file.
(FN2.)
The victim described the perpetrator as having a short dark leather jacket, but
the transcript does not indicate whether the jacket was mentioned in the police
broadcast.
(FN3.) Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
(FN4.)
Contrast the analysis grounded in Wong
Sun v. United States, 371 U.S. 471, 487‑488, 83 S.Ct.
407, 417, 9 L.Ed.2d 441 (1963), turning on whether evidence obtained following
an illegal arrest is the product of exploiting the primary illegality or of
means sufficiently distinguishable to be purged of the primary taint. See, e.g.,
Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254,
45 L.Ed.2d 416 (1975) (inculpatory statements);
United States v. Crews, 445 U.S. 463, 100 S.Ct.
1244, 63 L.Ed.2d 537 (1980) (in‑court identification);
Commonwealth v. Pietrass, 392 Mass. 892,
467 N.E.2d 1368 (1984) (lineup); Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 461‑465, 488 N.E.2d 780 (1986) (postarrest photographs and lineup). This analysis logically should not apply in
the case of a lawful showup, shortly after the
crimes, supported under traditional Terry
analysis. Compare Commonwealth v. Crowley, 29 Mass.App.Ct.
at 4‑6, 556 N.E.2d 1043.
(FN5.)
As to the necessity for such a showing, see
Commonwealth v. Kater, 388 Mass. 519, 524‑527,
447 N.E.2d 1190 (1983), S.C., 394
Mass. 531, 476 N.E.2d 593 (1985), S.C.,
409 Mass. 433, 567 N.E.2d 885 (1991); Commonwealth v. Curnin,
409 Mass. 218, 221‑223, 565 N.E.2d 440 (1991); Commonwealth v. Lanigan, 413 Mass. 154, 162‑163, 596 N.E.2d 311
(1992);
Commonwealth v. Hyatt, 29 Mass.App.Ct.
140, 144, 557 N.E.2d 1172 (1990), S.C.,
409 Mass. 689, 692‑693, 568 N.E.2d 1148 (1991), all applying the test
enunciated in Frye v. United States,
293 F. 1013, 1014 (D.C.Cir.1923).
(FN6.)
In People v. Collins, the perpetrator
of a handbag snatch had been described by witnesses as a Caucasian female with
a blond ponytail. One witness saw her
jump into a yellow getaway car driven by a black male with a mustache and
beard. The defendant was a black male
with the described facial hair, who owned a yellow Lincoln, and whose wife was
a Caucasian with a blond ponytail. Shaky
identification testimony was augmented by the testimony of a mathematics
teacher who posited the individual probabilities of each of the points of
similarity (i.e., yellow automobile, 1/10;
female with ponytail, 1/10;
female with blonde hair, 1/3;
interracial couple in car, 1/1,000;
man with moustache, 1/4; black
man with beard, 1/10) and, applying a principle called the "product rule,"
calculated that only one couple in 12,000,000 would match the description of
the perpetrators on all six points. The
conviction was reversed on appeal. The
foundational and mathematical errors are discussed in Tribe, Trial by
Mathematics: Precision and Ritual in the
Legal Process, 84 Harv.L.Rev. 1329, 1335‑1337
(1971).
(FN7.)
See Giannelli & Imwinkelreid,
Scientific Evidence § 24‑2, at 1033 (1986); Barnett & Ogle, Probabilities and Human
Hair Comparison, 27 J. Forensic Sci. 272 (1982). See also Lee & DeForest,
Forensic Hair Examination, appearing in Wecht,
Forensic Sciences § 37A.05[f] (1991), at 37A‑38, which indicates that the
Gaudette and Keeping figure is an average
probability, which "cannot be applied directly to a particular
case." In Commonwealth v. Hyatt, 29 Mass.App.Ct.
at 144, 557 N.E.2d 1172, the statistic (one chance in 4,500) from the Gaudette and Keeping study had been found by the trial
judge to be "generally accepted by the scientific community" with no
indication that defense counsel had brought contrary literature to the
attention of the court. On further
appellate review, 409 Mass. 689, 568 N.E.2d 1148 the Supreme Judicial Court
noted the issue concerning the statistical evidence and suggested that, on
retrial, the court be guided by
Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d
440 (1991), which disapproved use of similar statistics relative to DNA
testing. See also Commonwealth v. Kater, 388 Mass. 519,
524‑527, 447 N.E.2d 1190 (1983),
S.C., 394 Mass. 531, 476 N.E.2d 593 (1985).
(FN8.) Contrast People v. Collins, see note 6,
supra, where the independent identification was gravely impeached (the
victim could not make an identification, and the only other witness had been
unable at first to identify the defendant in a lineup), and the statistical
evidence became the principal connecting link between the defendant and the
attacker. If the statistical evidence is
admissible on an adequate foundation (but see Commonwealth v. Hyatt, discussed in note 7, supra ), both the correct figure (one in 4,500) and the mistaken
figure (one in 40,000) are sufficiently definitive that the difference,
although large mathematically, could be regarded as probatively
inconsequential in a case (such as this) where the statistical evidence is merely
corroborative of an independently supported identification of the perpetrator.
(FN9.) In
United States v. Massey, a divided court reversed a conviction in a
situation where, without the evidence relating to hair samples in a ski mask,
the evidence of the defendant's involvement was insufficient to warrant
submission to the jury, 594 F.2d at 678‑679, and the statistical
evidence, lacking a foundation, was of "obvious importance" to the
conviction. Id. at 681.