The defendant was convicted by a jury in the Superior Court of unarmed robbery of a person sixty years of age or older, in violation of G. L. c. 265, § 19 (a), and was sentenced to life in prison after the trial judge found him guilty of being a habitual offender, in violation of G. L. c. 279, § 25. The Appeals Court affirmed the conviction, Commonwealth v. Ferreira,
Background. Because we evaluate whether the prosecutor’s error resulted in a substantial risk of a miscarriage of justice, we summarize the evidence at trial in some detail. On November 5, 2006, someone telephoned a pizza parlor and ordered a pizza for delivery to 356 June Street in Fall River. The victim delivery man, sixty-one year old Allan Course, left his vehicle between 7 and 7:30 p.m. on June Street with the pizza, and searched on foot for the delivery address. He heard someone say, “There he is,” and saw two men emerge from between two houses about twenty-five feet away and begin to walk quickly toward him. The victim noted that one man, who was approximately five feet, ten inches tall, and approximately 150 to 160 pounds, wore a hooded sweatshirt while the other man, whо was taller (approximately five feet, ten or eleven inches) and stockier (approximately 175 to 190 pounds) wore a jacket.
When the men came within an arm’s length of the victim, the hooded man pushed the victim to the ground, placed his knee in the victim’s back, and said they wanted the victim’s money. The man wearing the jacket, who was standing behind the victim, then said that they did not want to hurt him and that he should just give them what was in his pockets and they would let him go. The hooded man showed the victim a paring knife and then took the victim’s wallet and money. After telling the victim, “Stay on the ground a couple of minutes,” the two men fled the scene. The victim waited a moment, got up, and ran to a nearby house to telephone the police.
Officer Brett Kimball responded, and the victim providеd him with physical descriptions of the two men who had just committed the robbery. Officer Kimball put these descriptions into “our computer database,” and produced two photographic arrays of potential suspects, each consisting of six photographs,
Pacheco and the defendant were friends who saw each other three or four times per week. The defendant dated Pacheco’s sister and was the father of her child. Officer Frederick M. Mello of the Fall River police department saw them together twelve times over a six-month period before November, 2006. Officer David Gouveia saw the defendant on March 2, 2006, carry Pacheco, who was unconscious, to an ambulance.
Pacheco, who was called to the witness stand by the prosecutor under an order of immunity, testified that he committed the
The defendant called Dias to the witness stand, who testified, without a grant of immunity, that he lived on June Street on November 5, 2006, and committed the robbery with Pacheco; he said the defendant was not with them.
Defense counsel’s clоsing argument noted that the victim was “only eighty per cent sure” of his identification of the defendant in the photographic array. The prosecutor began his closing argument with the eighty per cent figure mentioned by defense counsel:
“I’d like to start off by agreeing with [defense counsel] on one point. If all we had in this case was [the victim] saying, ‘I’m about eighty per cent sure that this photograрh is the person who robbed me,’ you probably wouldn’t be deliberating very long this morning. You’d go upstairs, you’d say eighty per cent [is] not high enough, not guilty, we’re done. But that’s not where this case stops.”
After arguing why the jury should discredit the testimony of Pacheco and Dias, and discussing the victim’s selection of the defendant’s photograph from the array, the prosecutor concluded by saying he would “like to makе one other point which I think really really [sic] drives this case home.” He then argued:
“He’s shown six photos in the first array, six photos in the second array. Well, we also heard that there was a seventh option in each array. That was none of the above. An option [the victim] had, an option he didn’t take. So now you have two arrays with each seven options.[ 8 ] . . .
“Now, let’s think about this for a moment. Seven on the left, seven on the right. How many different combinations does that make? By my math, it’s forty-nine. . . . And who does he pick? Bosom buddies. Two men who’ve been seen hanging around together at least a dozen times by Officer Mello. He picks [the defendant] who is so close to Shawn Pacheco that he was physically carrying him to an ambulance in March 2006. [The defendant] who has a сhild with Shawn Pacheco’s sister. The odds of picking two men out of two arrays with forty-nine different combinations who are that type, one out of forty-nine. Two per cent. Two per cent. What are the odds that [the victim] would have picked two different people, some other combination? Ninety-eight per cent. Do you call that coincidence? I call that proof beyоnd a reasonable doubt.”
The defendant did not object to the prosecutor’s closing argument.
Discussion. The gist of the prosecutor’s argument to the jury was that there was a one in forty-nine chance that the victim would have identified as his assailants two persons who knew each other well and therefore a ninety-eight per cent probability that the victim had accurately identified the dеfendant as one of the assailants, which constituted proof beyond a reasonable doubt. The apparent simplicity of the mathematics belies the complexity of the conclusion regarding the probability of an accurate identification, and conceals the assumptions implicit in the conclusion.
It is true that, if the victim were shown two arrays of six photographs аnd given a seventh choice of “none of the above,” and if the victim closed his eyes and randomly selected one of the seven options in each array, there was a one in forty-nine chance that he would select any combination of two. But if the identification were truly random, it would have no evidentiary
There are two other fundamental problems with the probability analysis. First, the victim testified that he saw the assailant in the hooded sweatshirt “a lot more,” and picked him from the array “[a]lmost right away.” Having identified Pacheco from the first array, the probability that the victim would randomly select the photograph of a person Pacheco knew wеll from the second array depended on how many people in the second array Pacheco knew well. But there was no evidence whether Pacheco knew the other persons depicted in the array, even though the prosecutor obtained an order of immunity and called Pacheco to testify. Nor was there any evidence as to the source of the photographs that comprised the array, apart from Officer Kimball’s testimony that he put the victim’s physical descriptions of the assailants into “our computer database” and “look[ed] up” people who had been arrested.
Second, where the Commonwealth seeks to provide the jury
The prosecutor also erred in equating proof beyond a reasonable doubt with a numerical percentage of the probability of guilt, in this case, ninety-eight per cent. “[T]o attempt to quantify proof beyond a reasonable doubt сhanges the nature of the legal concept of ‘beyond a reasonable doubt,’ which seeks ‘abiding conviction’ or ‘moral certainty’ rather than statistical probability.” Commonwealth v. Rosa,
Where, as here, no objection was made аt trial, we must determine whether the prosecutor’s closing argument error resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman,
We conclude that the prosecutor’s closing argument error created a substantial risk of a miscarriage of justice because of the danger that the jury gave undue weight to a mathematical probability analysis that supposedly demonstrated that the lone eyewitness identification on which the prosecutor’s case wholly rested constituted proof beyоnd a reasonable doubt, the victim’s admitted uncertainty as to the accuracy of the identification, and our recognition that “[e]yewitness identification of a person whom the witness had never seen before the crime or other incident presents a substantial risk of misidentification and increases the chance of a conviction of an innocent defendant.” Commonwealth v. Silva-Santiago,
Conclusion. Because the prosecutor’s closing argument error created a substantial risk of a miscarriage of justice, the judgment is reversed, the verdict and the habitual offender finding are set aside, and the case is remanded to the Superior Court for a new trial.
So ordered.
Notes
The victim testified that he was shown photographs in two separate albums, with two photographs per page, each containing between twenty to thirty photographs. The photographic arrays offered in evidence, however, conformed with Officer Brett Kimball’s description of the arrays, not the victim’s description.
Later in his testimony, Officer Kimball said that he instructed the victim that “the parties involved may not be in that photo array” and that the victim should make a selection in his second viewing of the array “if he was to make a selection.”
The victim testified that he did not pick any photographs from the first album, and that both of the photographs he identified were in the second album. He said that he saw the man in the hooded sweatshirt “a lot more” so he was easier to identify. He said it took more time to identify the other assailant, that he had to go through the album a couple of times before identifying him, and, when he identified the defendant, he said he was not “a hundred per cent sure.”
Although the record is not clear, we infer that the defendant was sitting at counsel’s table when the victim was asked to identify the “stockier” assailant.
Shawn Pacheco explained that “you’re supposed to say ‘yes,’ . . . when I was taking that deal. I did whаt I was told.” The judge instructed the jury that any statements made by Pacheco during the plea hearing were admitted solely to evaluate his credibility and not to establish the truth of the statements.
The judge earlier had conducted a voir dire examination where Robert Dias, in the presence of Dias’s attorney, waived his privilege against self-incrimination.
Kristen Bennett testified that she was terminally ill with а rare brain tumor.
The record, while unclear, suggests that the prosecutor, to illustrate his point to the jury, had posted the six photographs in each array, along with a piece of paper indicating none of the above, on two boards.
The judge struck the reference to persons arrested, and instructed the jury that the police have photographs of persоns who apply for licenses and identification cards.
We also note yet another closing argument error that, standing alone, would not create a substantial risk of a miscarriage of justice but that adds weight to our conclusion of a substantial risk. In a voir dire the day before his trial testimony, Dias was asked whether he or Pacheco telephoned the pizza parlor to requеst delivery of a pizza. Dias answered, “I believe it was me.” Before the jury the next day, however, the prosecutor asked Dias on cross-examination, “[J]ust about twenty-four hours ago, you didn’t remember who placed a call?” The prosecutor repeated the error later during the cross-examination: “Not only yesterday did you not remember who had even placed the call . . . .” In the closing argument, the prosecutor repeated the error: “Amazing how yesterday his memory is so foggy he can’t remember who placed the call . . . .” Because the jury did not hear the voir dire testimony and therefore could not evaluate the prosecutor’s characterization of Dias’s voir dire testimony, and because Dias’s credibility was crucial, this error was of significant consequence.