Opinion
11-P-606
03-07-2012
COMMONWEALTH v. ALBERTO CARDOZA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Superior Court, the defendant was convicted of murder in the second degree and unlawful possession of a firearm. He now appeals. We affirm.
Discussion. 1. At trial, Kim Bonner, a forensic DNA (deoxyribonucleic acid) analyst at the Massachusetts State Police crime laboratory, testified that she had obtained a DNA sample from the trigger of the revolver that was used to commit the murder. Bonner compared the DNA profiles derived from the trigger to samples from eight known DNA samples, including the defendant's. The DNA profile of the sample taken from the trigger 'yield[ed] inconclusive results' as to the defendant, but excluded the other seven candidates. The Commonwealth did not introduce any statistical evidence on the likelihood that the defendant could be a match. On cross-examination, Bonner agreed with defense counsel's statements that 'with respect to the trigger, there was insufficient information to draw any conclusions with respect to' the defendant, and that she was 'not able to draw any conclusion one way or the other with respect to' the defendant's profile in connection with the trigger.
The defendant claims reversible error, even in the absence of an objection, in admission of the testimony from Bonner that other suspects could be excluded as contributors to the DNA on the trigger and that the defendant could not be excluded. The defendant cites Commonwealth v. Mattei, 455 Mass. 840 (2010), to say that such evidence was inadmissible 'without some explanation of what this meant in terms of statistical probability.' He also argues that trial counsel was ineffective '[t]o the extent this evidence was inadvertently invited by [his] cross-examination.' We disagree.
Mattei held that expert testimony that DNA testing could 'not exclude' the defendant as a potential source of DNA found at the crime scene, absent testimony regarding statistical findings explaining the import of such a result, was likely to confuse and mislead the jury such that the prejudicial effect of the test results substantially outweighed their probative value, and a new trial was warranted. Id. at 848-849, 855-857 & n.35. Mattei noted that it was not addressing DNA test results that were 'inconclusive,' which was defined as 'results that provide no information whatsoever due to insufficient sample material, contamination, or some other problem.' Id. at 857. DNA test results were inconclusive where ''there was just not enough DNA information' in one DNA profile 'to either include or exclude" known individuals. Id. at 853, quoting from Commonwealth v. Mathews, 450 Mass. 858, 864 (2008).
The instant case involves such 'inconclusive' DNA evidence, and is controlled by Commonwealth v. Cavitt, 460 Mass. 617, 634 n.17 (2011), which distinguished Mattei. In Cavitt and the instant case, expert testimony excluded several other known DNA samples and was inconclusive as to the defendant. Id. at 633. In both cases, the DNA testimony was 'wholly neutral.' Id. at 635. In both cases, the testimony neither suggested to the jury that the defendant was in any way linked to the DNA, nor implied that the defendant's DNA would have been found there if more of a sample had been present. In both cases, defense counsel on cross-examination of the expert effectively probed the DNA testimony. In both cases, the prosecutor in closing argument stated that the scientific evidence was not helpful to the jury's determination, and thus did not misrepresent or misuse the evidence. In both cases, the central issue before the jury was identification, as counsel sought to undermine eyewitness identification. In both cases, testimony regarding the inconclusive DNA results was not relevant to the issue before the jury, and was thus admitted in error. Here, as in Cavitt, there was no objection from counsel, and the question on review is whether the unpreserved error created an unacceptable danger that justice miscarried. We see no reason here to depart from the holding in Cavitt that 'the error in admitting the inconclusive DNA evidence . . . would not have influenced the jury's conclusion, was not sufficient to demonstrate ineffective assistance of counsel, and did not create a substantial likelihood[ ] of a miscarriage of justice.' Id. at 636.
'In [Mattei] we concluded that expert testimony that DNA tests could not exclude the defendant as a potential source of DNA found at the crime scene, absent testimony regarding statistical findings explaining the import of such a result, was likely to confuse and mislead the jury such that the prejudicial effect of the test results substantially outweighed their probative value. Further, because the error in admitting such evidence was prejudicial, a new trial was warranted. . . . Our decision in Mattei is distinguishable from both Commonwealth v. Mathews, 450 Mass. 858 (2008), and from the present case because the question before the court in Mattei was not whether it was error to admit inconclusive DNA test results.' Cavitt, 460 Mass. at 634 n.17.
On cross-examination in the instant case, the defense probed and used the testimony to its advantage, making sure that the jury understood what Bonner meant when she said on direct examination that the results were 'inconclusive' as to the trigger.
In Cavitt, 460 Mass. at 625-626, the Supreme Judicial Court's review was under the substantial likelihood standard of G. L. c. 278, § 33E. That standard is more favorable to a defendant than the substantial risk standard applicable in the present appeal. See Commonwealth v. Smith, 460 Mass. 318, 321 n.2 (2011).
2. On the first day of trial, the defendant filed a motion to bar all peremptory challenges. Counsel argued that peremptory challenges are irrational and promote or permit exclusion of potential jurors on improper bases, such as race. The defendant did not argue, and does not argue now, that any prospective juror was challenged by the Commonwealth for an improper purpose. The defendant seeks abolition of peremptory challenges and a new trial based on the alleged violations of the equal protection rights of the jurors who were challenged peremptorily. As such, he asks that we overrule Supreme Judicial Court precedent. See Commonwealth v. Soares, 377 Mass. 461, 485 (1979). See also Commonwealth v. Rodriguez, 457 Mass. 461, 488 (2010) (Marshall, C.J., concurring). As the defendant correctly acknowledges, this is beyond our province. See Commonwealth v. Sanchez, 79 Mass. App. Ct. 189, 193-194 (2011).
3. The defendant offered no evidence at trial that he had a firearm license. The defendant argues for the first time on appeal that his conviction of unlawful firearm possession cannot stand because the Commonwealth did not introduce any evidence that he did not have a license and because the jury were not instructed that they must find he had no license in order to convict him. These arguments are precluded by Commonwealth v. Powell, 459 Mass. 572, 582 (2011), and the defendant's efforts to distinguish it are unavailing.
'We have repeatedly held that in prosecutions under G. L. c. 269, 10(a) and (h), the Commonwealth does not need to present evidence to show that the defendant did not have a license or FID card because the burden is on the defendant under G. L. c. 278, 7, to come forward with such evidence. . . . [T]he absence of a license is not 'an element of the crime,' as that phrase is commonly used.' Commonwealth v. Powell, 459 Mass. at 582. We note that the defendant in Powell has sought review of that decision before the United States Supreme Court (docket no. 11-6580). His petition for a writ of certiorari is currently pending.
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Judgments affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.),