COMMONWEALTH vs. EARL T. FULGIAM (and thirteen companion cases)
SJC-12128
Supreme Judicial Court of Massachusetts
May 5, 2017
477 Mass. 20
Suffolk. October 11, 2016. - May 5, 2017. Present: GANTS, C.J., BOTSFORD, LENK, HINES, LOWY, & BUDD, JJ.
At a murder trial involving two defendants, no substantial likelihood of a miscarriage of justice arose from the admission in evidence of historical cell site location information (CSLI) associated with one defendant‘s cellular telephone number, which the Commonwealth had obtained pursuant to a court order without a search warrant, where, in the application for the order, the Commonwealth offered specific and articulable facts showing that there were reasonable grounds to believe that the CSLI was relevant and material to the ongoing investigation into the murders in question [26-28]; further, the other defendant‘s counsel was not ineffective for failing to file a motion to suppress CSLI and text messages from that defendant‘s cellular telephone, where the application for the court order that permitted the Commonwealth to obtain that information recited facts that were more than sufficient to establish that that defendant‘s subscriber and call detail information was relevant and material to the investigation into the murders, where the Commonwealth‘s access to that CSLI did not create a substantial likelihood of a miscarriage of justice, and where, although a warrant was required to obtain access to the content of that defendant‘s text messages, and a motion to suppress challenging the Commonwealth‘s access likely would have been successful, the text messages were not likely to have influenced the jury‘s conclusion, given that much of the information about one victim‘s status as a high level drug dealer came in through other evidence, and given that, based on evidence wholly independent of the text messages, that defendant‘s involvement in the murders was not a close question [28-38].
At a murder trial, the judge did not err in admitting in evidence, under the business record exception to the hearsay rule, “ten-print” fingerprint cards, where, given the duty of the officers creating such cards to ensure that they are created with accurate information and the arrestees’ legal obligation to
At a murder trial, the admission in evidence of the testimony of the Commonwealth‘s fingerprint expert witness did not create a substantial likelihood of a miscarriage of justice, where, although the witness presented her findings (based on her application of a particular methodology to latent prints found at the scene) as fact rather than opinion, portions of the witness‘s testimony implicitly suggested the fallibility of fingerprint analysis; and where the Commonwealth‘s evidence linking the defendants to the crime, separate and apart from the fingerprint evidence, was strong; moreover, the witness‘s testimony that another fingerprint analyst had reviewed her work did not amount to improper vouching or hearsay expert testimony. [43-46]
There was no merit to a criminal defendant‘s claim that, at trial, the Commonwealth improperly and repeatedly referenced the defendant‘s gang affiliation. [46-47]
INDICTMENTS found and returned in the Superior Court Department on December 21, 2011.
The cases were tried before Peter M. Lauriat, J.
Elizabeth Caddick for Earl T. Fulgiam.
Esther J. Horwich for Michael T. Corbin.
Zachary Hillman, Assistant District Attorney (John P. Pappas, Assistant District Attorney, also present) for the Commonwealth.
HINES, J. On July 25, 2011, armed intruders entered the apartment occupied by the victims, Kevin Thomas, Jr., and Billie Marie Kee, who were robbed and killed. In May, 2013, a Superior Court jury found the defendants, Earl T. Fulgiam and Michael T. Corbin, guilty as joint venturers of murder in the first degree of both victims based on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with armed robbery as the predicate felony. The defendants also were convicted of unlawful possession of a firearm and unlawful possession of a large capacity feeding device.1 On appeal, the defendants assert error in the admission of (1) certain cellular telephone records in
Background. We summarize the evidence as the jury could have found it, reserving additional facts for later discussion. On July 25, 2011, a couple who lived on the second floor of an apartment building on Hyde Park Avenue, in the Hyde Park section of Boston, awoke to the sound of gunshots at around 11:55 P.M. They heard between six and eight gunshots that the woman believed came from an apartment below. The couple looked out of their bedroom window, and saw six or seven men running out of the entrance to their building. The woman telephoned 911 at 11:57 P.M.2
The men split up. Some of them ran straight across Hyde Park Avenue. At that moment, a passenger in a vehicle approaching the victim‘s apartment building saw three men run in front of her vehicle; one of the men carried what looked like a white pillowcase. The men got into a grey or silver sedan so quickly that a man‘s foot was hanging outside the vehicle as it sped away. None of the witnesses was able to give more than a general description of the men, except that one man was heavyset;3 the witnesses could only guess at the race or ethnicity of the men they observed.
At 12:41 A.M. on July 26, 2011, Boston police responded to the scene and were directed to the victim‘s apartment. They found a large watch on the floor near the front entrance to the building. Kee, dressed in a bloody shirt and underwear, was found lying face down on the floor just inside the apartment. She had suffered four gunshot wounds and multiple stab wounds, and she was pronounced dead at the scene. Kee‘s cause of death was gunshot wounds to the torso and injuries to the lungs, ribs, and spine.
The victims’ apartment had been ransacked. Broken glass and blood were on the floor, clothes were strewn about, and the cabinets and drawers were open in the kitchen and bathroom. There were no signs of forced entry; the front door was ajar, with the lock intact, and the back doors were locked from the inside. Although the officers observed no “land line” telephone in the apartment, they did not recover any cellular telephones. A curling iron with its cord cut and two knives with brownish-red stains were found near Kee‘s body. The curling iron cord matched the wire that was used to bind Thomas‘s ankles.
In the front bedroom, in a tall bureau, officers found a packet of photographs, two of which depicted Thomas with Fulgiam and Corbin, at Thomas‘s apartment, sitting on the couch in front of stacks of United States currency. Near Thomas‘s body officers found a black backpack with what appeared to be a bag of marijuana inside.
On July 27, 2011, a subsequent search of the basement revealed two plastic bags of what appeared to be “crack” cocaine, and two digital scales. Based on all of the evidence that the police officers had found during their investigation, they surmised that the assailants were likely known to the victims and that the murders were likely the result of a drug robbery.
In the front yard, officers recovered a loaded nine millimeter semiautomatic pistol with a magazine and a loaded .38 caliber silver revolver. A diamond encrusted ring was found on Hyde Park Avenue.
John Golden, Thomas‘s best friend, testified that Thomas sold large amounts of marijuana and cocaine. On the day of the murders, Golden saw approximately $5,000 in the bureau. When Golden was shown the photograph depicting Thomas, Corbin, and Fulgiam with the bundles of cash, Golden estimated the amount to be between $12,000 and $13,000. Police were able to determine the date of the photograph as May 11, 2011. Golden also identified the watch and the ring that had been recovered as belonging to Thomas. Golden described Thomas as being “paranoid,” so much so that he insisted that even trusted friends call before coming to his apartment.
A detective learned that the victims’ cellular telephones had not been recovered, so he requested and obtained traces on both. Thomas‘s cellular telephone records showed that a certain cellular telephone number was listed in Thomas‘s telephone records for July 25, 2011. Police learned that this telephone had been stolen that afternoon between 4:30 P.M. and 5:30 P.M. The owner told police that he did not recognize Thomas‘s cellular telephone number or the number later identified as Fulgiam‘s cellular telephone number, both of which were listed in his call detail records for July 25, 2011. The Commonwealth issued administrative subpoenas for Fulgiam‘s cellular telephone call detail records and for a cellular telephone number ending in 2898, which was later connected to Corbin.4 The police discovered that Corbin and Thomas had been in contact, via short message service messages (text messages) or telephone calls, several times on July 25, 2011. Fulgiam and Corbin also had been in telephonic contact that day.
On August 8, 2011, two detectives interviewed Fulgiam at his home. At this time the police had not sought an arrest warrant for Fulgiam. Fulgiam told the detectives that he and Thomas had known one another since the early to mid-2000s, and that he knew Thomas very well. Fulgiam admitted that he and Thomas were in the drug business together and that he would meet with Thomas one or two times per month, at one of their homes, to
The two detectives interviewed Corbin at his home on August 10, 2011. At that time, he was not under arrest. One of the detectives had previously been in telephonic contact with Corbin,6 who agreed to meet with the detectives. Corbin told the detectives that he had known Thomas since Corbin was thirteen years old. Corbin was equivocal about when his last communication with Thomas had occurred; he first said it had been a month prior, but later said it could have been weeks or days before Thomas was killed. He stated that the last time he was in Thomas‘s apartment was on May 1, 2011, but that he had been in the apartment many times. Corbin mentioned that Thomas was not a showy guy, and that he had a watch and ring, but only wore them on the weekends. He also noted that Thomas was a smart and careful person and that one had to inform Thomas before coming to his home.
On September 14, 2011, police learned that fingerprint analysts had individualized to Corbin‘s right thumbprint a latent print found on the curling iron that had been recovered from the victim‘s home. On October 27, 2011, pursuant to a search warrant, detectives seized Corbin‘s cellular telephone ending with the number 2898 (2898 number) and discovered photographs of Fulgiam, as well as both Fulgiam and Thomas‘s numbers programmed into the contact list. That same day, the police obtained arrest warrants for Corbin and Fulgiam.
A review of the CSLI associated with Fulgiam‘s cellular telephone number revealed that on the evening of July 25, 2011, Fulgiam‘s cellular telephone activated a cell tower located at an address which is located directly behind the victim‘s apartment, six times between 11:30 P.M. and 11:55 P.M. The last time Fulgiam‘s cellular telephone activated the cell tower at that location was the same time that the neighbors awoke to gunshots and two minutes before one of them telephoned 911 the first time.
Fulgiam argues that the Commonwealth improperly obtained the CSLI for his cellular telephone without probable cause and that, in any event, the application for the § 2703(d) order was insufficient to show that his CSLI would be “relevant and material to an ongoing criminal investigation.”8
ii. Analysis. Because Fulgiam does not have the benefit of Augustine I, the Commonwealth only had to meet the standard set forth in § 2703(d) in order to obtain Fulgiam‘s CSLI. See Broom, 474 Mass. at 492. Section 2703(d) requires that an order “shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” The Commonwealth met that burden.
The application recited the following facts that, taken together, established reasonable grounds to believe that Fulgiam‘s CSLI was “relevant and material” to the ongoing investigation into the
b. Corbin‘s claims. Using the § 2703(d) order issued on August 15, the Commonwealth obtained Corbin‘s cellular telephone subscriber and call detail information, CSLI, and text messages for the period from July 20 through July 30, 2011. Corbin, like Fulgiam, did not challenge the Commonwealth‘s access to these records either before or during the trial. On appeal, however, Corbin argues that the Commonwealth‘s access to and use of these records at trial was unlawful on statutory and constitutional grounds, and that his trial counsel was constitutionally ineffective in failing to file a motion to suppress the records. More specifically, Corbin claims that (1) the application for the § 2703(d) order (§ 2703[d] application) failed to make the required showing that the records were “relevant and material” to an ongoing criminal investigation; (2) the Commonwealth‘s access to and use of eleven days of his CSLI was improper and prejudiced him; and (3) the access to and use of the content of his text messages at trial was improper because the § 2703(d) application failed to establish probable cause to believe “that a particularly described offense has been, is being, or is about to be committed, and that
i. Standard of review. Where, as here, the defendant has been convicted of murder in the first degree, we review his claim of ineffective assistance of counsel to determine whether the alleged lapse created a “substantial likelihood of a miscarriage of justice,” a standard more favorable to the defendant than the constitutional standard otherwise applied under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), S.C., 469 Mass. 447 (2014). We focus more broadly on whether there was error and, if so, whether any such error “was likely to have influenced the jury‘s conclusion.” Id. If the defendant‘s claim of ineffective assistance of counsel is based on the failure to file a motion to suppress, he must “show that the motion to suppress would have been successful, and that failing to bring such a motion... created a substantial likelihood of a miscarriage of justice.” Commonwealth v. Banville, 457 Mass. 530, 534 (2010).
If the failure to file a motion to suppress resulted from counsel‘s tactical decision not to do so, the defendant must demonstrate that this strategic choice was “manifestly unreasonable” when made (quotations and citation omitted). Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015). Here, however, the record is unclear as to whether counsel‘s decision was tactical, as the defendant did not file a motion for new trial on this ground, clarifying the record on trial counsel‘s reason for his choice.
ii. Likelihood of success on the motion to suppress. Because the analysis of the likelihood of success on a motion to suppress the subscriber and call detail information is governed by a legal standard that is different from that applicable to text messages, we consider each category of information separately.
A. Subscriber and call detail information. To secure a § 2703(d) order allowing access to subscriber and call detail information, the application must establish “specific and articulable facts showing that there are reasonable grounds to believe that the [information sought is] relevant and material to an ongoing criminal investigation.”
B. CSLI. Corbin contends also that the Commonwealth‘s access to and use of eleven days of his CSLI was improper and prejudiced him. Corbin, however, cannot show that the Commonwealth‘s access to and use of eleven days of his cellular telephone‘s CSLI, pursuant to § 2703(d), created a substantial likelihood of a miscarriage of justice. See Broom, 474 Mass. at 493. Corbin, like Fulgiam, did not object to the access and use of his CSLI prior to or during trial, and thus did not have the benefit of Augustine I. As a result, the Commonwealth merely had to demonstrate that Corbin‘s CSLI would be “relevant and material to an ongoing criminal investigation.”
C. Text messages. Corbin argues that counsel was ineffective in failing to file a motion to suppress the content of the text messages where the Commonwealth obtained access without a warrant under
I. Warrant requirement for access under § 2703(a). Access to the “contents of wire or electronic communications in electronic storage” is governed by
The Commonwealth argues that the warrant requirement of § 2703(a) does not apply to Corbin because text messages are held by a provider of a “remote computing service”11 rather than an “electronic communication service” and that, as a consequence,
Although the United States Supreme Court has not defined “electronic communication service” as used in § 2703(a), we adopt the approach in Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), overruled on other grounds sub nom. City of Ontario, Cal. v. Quon, 560 U.S. 756 (2010), where the court‘s analysis focused on the actual services offered to the consumer to determine whether the entity is a provider of “electronic communication service” or “remote computing service.” See id. at 900, 901. Relying on the plain language of the statute, the Quon court concluded that the definition of “electronic communications service” as “any service which provides users... the ability to send or receive wire or electronic communications,”
This interpretation is consistent with the heightened protection for the content of electronic communications. In Riley v. California, 134 S. Ct. 2473 (2014), the Supreme Court held that police officers must secure a search warrant prior to searching a cellular telephone, as modern cellular telephones contain “vast quantities of [digital] personal information.” Id. at 2485. See United States v. Warshak, 631 F.3d 266, 286 (6th Cir. 2010) (electronic mail messages “require[] strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve“). A search of the content of text messages implicates similar privacy interests. Just as the government may not intercept private tele-
II. Warrant requirement under art. 14. Because the Supreme Court has yet to decide whether access to the content of text messages requires compliance with the warrant requirement of § 2703(a), we consider the issue under art. 14, as articulated in Augustine I. We conclude that a warrant was required to obtain access to the content of Corbin‘s text messages. Access to the content of a text message constitutes a search requiring a showing of probable cause, which in this context means “probable cause to believe ‘that the particularly described offense has been, is being, or is about to be committed, and that [the text message content being sought] will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit such offense.‘” Augustine I, 467 Mass. at 256, quoting Connolly, 454 Mass. at 825.
A warrant with probable cause was required because Corbin had a reasonable expectation of privacy in the content of his text messages. “The measure of the defendant‘s [reasonable] expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable.” Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). See Katz, 389 U.S. at 361 (Harlan, J., concurring). As the Commonwealth notes, the defendant did not file a motion for a new trial or a motion to suppress, and for that reason, the judge did not hold an evidentiary hearing to determine whether Corbin had a subjective expectation of privacy in the contents of the text messages from the 2898 number. The record, however, establishes that Corbin had a subjective expectation of privacy in the content of his text messages. See Montanez, supra at 301.
As mentioned above, Corbin provided the police with his cellular telephone number prior to his arrest. At trial he offered the CSLI associated with the cellular telephone account as evidence that he was not in Hyde Park on July 25, 2011, implicitly claiming ownership of the cellular telephone account; and the cellular telephone associated with the 2898 number was seized
Similarly, Corbin had an objectively reasonable expectation of privacy in his text messages. In Augustine I, 467 Mass. at 255, we recognized an objectively reasonable expectation of privacy in a defendant‘s CSLI records. We further stated “that the nature of cellular telephone technology and CSLI and the character of cellular telephone use in our current society render the third-party doctrine of [United States v. Miller, 425 U.S. 435 (1976),] and Smith [v. Maryland, 442 U.S. 735 (1979),] inapposite.” Augustine I, supra at 245. The same result applies here with respect to the content of text messages stored on a cellular telephone service provider‘s servers.
Because we conclude that probable cause was required to obtain the content of Corbin‘s text messages, we next consider whether the application established the requisite probable cause for access to Corbin‘s text messages. See id. at 256.
The application established a personal relationship between Thomas and Corbin, that Corbin was in telephonic contact with both Thomas and Fulgiam on the day of the murders, and that the circumstances of the murders suggested a connection to drugs. Although the fact that Thomas and Corbin may have used their cellular telephones to communicate with each other on the day of the murders elevated their relationship to a matter of importance in the investigation, it did not, without more, justify intrusion into the content of that communication.13 In contrast to Fulgiam,
The Commonwealth argues that, in any event, Corbin lacked standing to challenge the access to the content of the text messages because the cellular telephone account was held under a fictitious name or held by someone other than Corbin. “A defendant has standing either if [he] has a possessory interest in the place searched or in the property seized or if [he] was present when the search occurred.” Commonwealth v. Williams, 453 Mass. 203, 208 (2009). The Commonwealth argues that the defendant has not made the requisite showing that he had a possessory interest in the cellular telephone account for the 2898 number because Corbin did not move for a new trial and file an affidavit averring such a possessory interest in the account, or present any affirmative evidence showing such an interest. However, the Commonwealth consistently has asserted that the listed
Last, we reject the Commonwealth‘s argument that customers of cellular service providers such as Metro PCS, which are advance-pay services, assume the risk that the content of information stored on its servers will be disclosed to third parties. To support its argument, the Commonwealth notes that companies such as Metro PCS do not conduct credit checks or verify the identity of its customers and that, as a consequence, customers who engage the services of such companies have a less objectively reasonable expectation of privacy. In determining a subscriber‘s reasonable expectation of privacy, we decline to distinguish between those who choose not to submit to a credit check, or do not have credit, or are not the named account holder on a cellular telephone account and those customers who identify themselves or have established credit.
iii. Substantial likelihood of a miscarriage of justice. We now ask whether the admission of the text messages, which could have
Corbin‘s defense was that he was innocent and that Thomas, as a high-level drug dealer, was in a dangerous business. Corbin claimed that many people knew Thomas was a drug dealer and, for that reason, he was a target for drug robbery. Corbin‘s argument that the content of his text messages was the only evidence from which the jury could find a motive and opportunity for Corbin to commit the murders is belied by the record. Much of the information about Thomas‘s status as a high-level drug dealer came in through other evidence.16
In addition, based on evidence wholly independent of the text messages, Corbin‘s involvement in the murders was not a close question. The discovery of Corbin‘s fingerprint on the barrel of the curling iron found near Kee‘s body was highly inculpatory, as was the evidence of Corbin‘s telephonic contact with Fulgiam, Thomas, and the stolen cellular telephone on the day of the murders. The inference that Corbin was in possession of the cellular telephone stolen a few hours before the murders, and that he used this telephone to contact Thomas on multiple occasions, including within two hours of the murders, also was highly inculpatory. The jury also heard evidence that Thomas, Corbin, and Fulgiam were involved in the drug business together and that the murders were likely connected to a drug robbery. Moreover, although we recognize that trial counsel was faced with the task of down-playing the impact of the text messages once they were admitted in evidence, he affirmatively used this content in his closing argument to establish that (1) Thomas had a significant amount of drugs and money in his apartment most of the time; (2) Thomas was a “tempting” target for robbery; and (3) the nature of Thomas‘s business was such that persons other than Corbin could have a motive to kill Thomas. Against the backdrop of this highly incriminating evidence, we cannot say that the jury‘s exposure to
2. Fingerprint analysis. The Commonwealth presented the following evidence to prove its contention that the fingerprint analysis placed both defendants at the scene of the crime during the murders. Although police criminalists were able to obtain several latent fingerprints17 from items at the scene, ultimately, only five latent prints were individualized18 to the defendants. Four latent prints were recovered from the magazine of the nine millimeter semiautomatic pistol, and one thumbprint was recovered from the barrel of the curling iron found near Kee‘s body.
During her testimony, a fingerprint analyst explained that latent print analysts compare the latent prints recovered from crime scenes to known prints, i.e., fingerprint impressions taken in a controlled setting, either in ink or on a scanner. Insofar as relevant here, police produced a card, known as a “ten-print” card, which includes the ten fingerprint impressions, the name of the person who is being fingerprinted, typically a signature of that person, and other identifying information, such as date of birth and address. Police latent print analysts access the known prints through certain databases. The latent print analysts use a method known as analysis, comparison, evaluation, and verification, or ACE-V, to compare the latent prints recovered to known prints.
With respect to Corbin‘s fingerprint, the analyst explained that she began by using the ACE-V methodology to determine that the latent print had sufficient quality and quantity of detail for comparison purposes. Next, she obtained possible matches through a fingerprint database, including the ten-print card of Corbin that was maintained by the State police and created on July 7, 2005.19 Finally, after performing the ACE-V methodology again, the analyst “individualized the right thumb” of Corbin to the latent print recovered from the curling iron.
a. Ten-print cards. The defendants argue that the judge erred in admitting the ten-print cards under the business records exception to the hearsay rule. See
The business records exception to the hearsay rule provides, in relevant part: “a writing or record,... made as a memorandum or record of any act, transaction, occurrence or event, shall not be inadmissible in any civil or criminal proceeding as evidence of the facts therein stated because it is transcribed or because it is hearsay or self-serving.”
This presumption, however, does not automatically extend to the out-of-court statements made by a secondary source that the record preparer relies on when creating the record. The essential element underlying the presumption of reliability is the theory that “entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied
To demonstrate that the preparer‘s hearsay source bears the same indicia of reliability as the preparer, the proponent need not produce each speaker. Beal Bank, SSB, 444 Mass. at 816. Rather, the proponent need only present evidence demonstrating that the hearsay source “reported the information as a matter of business duty or business routine.” Wingate, 385 Mass. at 406. Such was the case in Beal Bank, SSB, where the proponent bank introduced, as its own business record, a printout of a report produced and provided to it by the bank‘s loan servicing agent (agent). Beal Bank SSB, supra at 816. In determining that the judge did not abuse his discretion in admitting the document as a business record, we noted that because the agent serviced the bank‘s loans pursuant to a contract, the bank manager‘s testimony regarding the records was sufficient to support the admission of the documents. Id. at 817. Key to this determination was the existence of a business relationship between the bank and its agent. We noted, “this is not a case where the bank is simply receiving information from another business. Rather, [the agent] is the bank‘s servicing agent; it has a business duty [to accurately report] the information to the bank; and the bank routinely accesses and relies on that information.” Id.
In this case, the Commonwealth introduced two ten-print cards created by the State police, each of which bore ten fingerprints and identifying information associated with the defendants.21 As a threshold matter, we determine that the ten-print cards meet the
Here, the officer who creates the ten-print card has a duty to ensure that the person who is being fingerprinted is accurately identified. Otherwise, such cards would have little value to law enforcement. Moreover,
The defendants argue that the ten-print cards do not fall within the scope of the business records exception to the hearsay rule because the Commonwealth failed to present evidence that the person taking the fingerprints verified the identities of the persons fingerprinted. See United States v. Vigneau, 187 F.3d 70, 77 (1st Cir. 1999), cert. denied, 528 U.S. 1172 (2000) (admission of sender‘s name, address, and telephone number reflected on Western Union “To Send Money” form for truth was error where Western Union did not have practice of verifying such information). Although we agree that verification may be a best practice, we conclude that the presence or absence of independent verifi-
We are also not persuaded by Corbin‘s argument that the ten-print cards were inadmissible because the Commonwealth presented testimony from a witness who did not actually take or maintain the ten-print cards. Section 78 makes clear, as has this court, that the admissibility of a document under the business records exception does not turn on the personal knowledge of the record‘s preparer. See Wingate, 385 Mass. at 406, quoting
Last, the defendants argue that the admission of the ten-print cards violated the right of confrontation as guaranteed by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We disagree. The Supreme Court has made clear that the confrontation clause “guarantees a defendant the opportunity to confront any person, in the ‘crucible of cross examination,’ whose ‘testimonial’ statements are introduced against him.” Commonwealth v. Siny Van Tran, 460 Mass. 535, 552 (2011), quoting Crawford v. Washington, 541 U.S. 36, 51-52, 61 (2004). Similarly, art. 12 “commands that ‘every subject shall have a right... to meet the witnesses against him face to face.‘” Commonwealth v. Amirault, 424 Mass. 618, 628 (1997), quoting art. 12. “It is the testimonial character of any item of evidence that triggers the confrontation right, notwithstanding its admissibility under statute, State rule, or a common-law hearsay exception.” Siny Van Tran, 460 Mass. at 552, citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 323 (2009). However, “[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial - for example, business records or statements in further-
Fingerprint records are nontestimonial because they are created for the “administration of an entity‘s affairs” rather than to establish or prove some fact at trial. Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 5 (2010). See Melendez-Diaz, 557 U.S. at 324. Here, the trooper testified that ten-print cards are created in the ordinary course of business in good faith, and Corbin and Fulgiam‘s ten-print cards were created prior to the commencement of the trial. The ten-print cards were business records under
b. Testimony of fingerprint analyst. The defendants challenge the admission of the Commonwealth‘s fingerprint expert witness testimony on several grounds. The defendants first argue that the Commonwealth‘s expert witness improperly testified to the result of her fingerprint analysis in absolute terms, stating that she had individualized the defendants’ fingerprints to prints found at the scene of the crime. According to the defendants, the introduction of expert fingerprint testimony stating the results of fingerprint analysis in absolute terms is inconsistent with recent science questioning the accuracy and reliability of fingerprint analysis and the ACE-V methodology. Because the defendants did not object to this aspect of the testimony at trial, our inquiry is whether any error created a substantial likelihood of a miscarriage of justice. Wright, 411 Mass. at 682.
We have on several occasions addressed the issue of the ACE-V methodology and expert testimony based on it. See, e.g., Commonwealth v. Gambora, 457 Mass. 715, 724-728 (2010), and Commonwealth v. Patterson, 445 Mass. 626, 641-655 (2005). In Gambora, supra at 724, we discussed in great depth a 2009 report published by the National Research Council for the National Academy of Sciences (NAS Report), which raised several issues regarding the reliability of certain aspects of the ACE-V meth-
The defendants contend that the fingerprint expert witness failed to heed this court‘s cautionary advice and presented her findings based on her application of the ACE-V methodology to latent prints found on the scene as fact rather than opinion. We agree, but we are persuaded that the testimony did not create a substantial likelihood of a miscarriage of justice. Wright, 411 Mass. at 682.
Fingerprint analysts testifying as expert witnesses must clearly frame their findings in the form of an opinion to avoid improper testimony. See Mass. G. Evid. § 702 & note (2017). See also Joyner, 467 Mass. at 183 n.9 (“Gambora permits a fingerprint
However, portions of the analyst‘s testimony implicitly suggested the fallibility of fingerprint analysis. Contrast Commonwealth v. Wadlington, 467 Mass. 192, 205 (2014) (fingerprint analyst improperly testified as to her belief of “no error rate in [her] area of science“). For example, she agreed that latent prints are obtained from an “uncontrolled setting,” and that various factors, including pressure, can affect the way the fingerprint is recorded. Moreover, as in Gambora, we note that the vigorous cross-examination of the analyst countered any possible misconception that individualization is infallible. Specifically, defense counsel for Fulgiam questioned her on her inability to determine when the latent prints were deposited, and counsel highlighted the fact that fingerprints are “somewhat delicate.” Defense counsel for Corbin also questioned her on issues regarding the surface from which the latent print on the curling iron was taken and regarding the fact that the latent print recovered is not “exactly similar” to the known prints.
Finally, the Commonwealth‘s evidence linking the defendants to the crime, separate and apart from the fingerprint evidence, was strong. Thus, even though we conclude that the analyst‘s testimony regarding individualization was erroneously presented as fact, we determine that the error did not create a substantial likelihood of a miscarriage of justice.
The defendants also argue that the judge erred in allowing the analyst to testify that another fingerprint analyst had reviewed her work.25 According to the defendants, this testimony amounted to “improper vouching” and hearsay expert testimony.
We are not persuaded that this testimony was error. Expert testimony as to the opinions or conclusions of a second, nontes-
Nonetheless, judges must use caution in allowing testimony regarding the verification step in ACE-V analysis, as “verifying” suggests that a nontestifying expert concurs with the testifying expert‘s conclusion. Such testimony would be improper hearsay testimony. See Commonwealth v. Chappell, 473 Mass. 191, 202 (2015).
3. Gang references. Corbin argues that the Commonwealth improperly and repeatedly referenced gang affiliation during the trial, despite the fact that the judge granted Fulgiam‘s motion in limine to exclude such references. This argument has no merit. Corbin merely speculates that the jury would conclude that the defendants were affiliated with gangs based on the neighborhoods in which the men grew up.27 Additionally, the prosecutor‘s closing argument was proper; there was testimony that six or seven men were seen fleeing the victim‘s apartment building immediately after the witnesses heard gun shots. It is within permissible bounds for the prosecutor to infer that a “team” of men committed the murders. There was no error. See Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987).
So ordered.
LOWY, J. (concurring, with whom Gants, C.J., joins). I agree that the ten-print card qualifies for the business record exception to the rule against hearsay. However, I write separately because the card in this case involves two levels of hearsay: the ten-print card itself and the information provided by the individual to fill out the card. I believe the court does not precisely address each level.
The business records exception to the rule against hearsay allows information recorded for a business purpose and contained in a business record in evidence for its truth. See Mass. G. Evid. § 803(6)(A) (2017). This rule includes out-of-court statements: if the statement is recorded for a business purpose and the individual making the statement does so for a business purpose, the statement is admissible for its truth. See id. If an out-of-court statement contained in a business record is not made pursuant to a business purpose, it still may be admissible if the out-of-court statement is recorded for a business purpose and the statement falls within another hearsay exception or exclusion. As the court points out, an arrestee‘s legal obligation does not equate with a business purpose.
However, I believe that the information provided to fill out the ten-print card fell within the hearsay exclusion for an opposing party‘s statement. Mass. G. Evid. § 801(d)(2)(A) (2017). For the reasons stated by the court, including the defendant‘s legal obligation to provide identifying information, the totality of the circumstances established a more than adequate basis for the judge to conclude - as a preliminary question of fact on which admissibility depends and as a matter of conditional relevance - that Corbin was the individual who provided the information. See Mass. G. Evid. § 104(a), (b) (2017). The ten-print card was properly admitted because the information in the ten-print card was admissible under an exclusion from the rule against hearsay, and the ten-print card was admissible as a business record. Mass. G. Evid. §§ 801(d)(2)(A), 803(6)(A).