OPINION
THOMAS FULTON, Bankruptcy Judge
Pikeville Energy Group, LLC ("Appellant") appeals an order of the bankruptcy court denying its application for allowance of administrative expense claim on grounds that Appellant was judicially estopped from asserting that claim.
For the reasons stated below, the Panel affirms the bankruptcy court's judgment in favor of the Appellee.
I. ISSUE ON APPEAL
Did the bankruptcy court err in finding that Appellant was judicially estopped from asserting an administrative claim against the bankruptcy estate of the Debtor?
II. JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Eastern District of Kentucky has authorized appeals to the Panel, and no party has timely elected to have this appeal heard by the district court. 28 U.S.C. §§ 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794,798, 109 S. Ct. 1484, 1497 (1989) (citations omitted). The bankruptcy court's order denying the application for administrative expense claim is a final order. United Mine Workers of Am. v. Lexington Coal Co., LLC (In re HNRC Dissolution Co.), 396 B.R. 461,465 (B.A.P. 6th Cir. 2007).
The court's findings of fact are reviewed under the clearly erroneous standard. Riverview Trenton R.R. Co. v. DSC, Ltd. ( In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir. 2007). "A finding of fact is clearly erroneous `when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S. Ct. 1504 (1985)).
The bankruptcy court's conclusions of law and its application of judicial estoppel are reviewed de novo. Lorillard Tobacco Co. v. Chester, Willcox Saxbe, LLP, 546 F.3d 752,757 (6th Cir. 2008). "De novo means that the appellate court determines the law independently of the trial court's determination." Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (B.A.P. 6th Cir. 2001) (citations omitted).
In New Hampshire v. Maine, 532 U.S. 742,750, 121 S. Ct. 1808 (2001), the Supreme Court described judicial estoppel as "an equitable doctrine invoked by the court at its discretion." (citation omitted). A majority of federal courts have applied the abuse of discretion standard to a court's application of judicial estoppel. See, e.g., Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 30-31 (1st Cir. 2004); Klein v. Stahl GMBH Co. Maschinefabrik, 185 F.3d 98, 108 (3d Cir. 1999); but see United States v. Hook, 195 F.3d 299,305 (7th Cir. 1999) (applying de novo standard of review). While the Sixth Circuit Court of Appeals has on occasion questioned the continued use of the de novo standard in reviewing the application of judicial estoppel, see Lewis v. Weyerhaeuser Co., 141 F. App'x 420, 424 (6th Cir. 2005) (unpub. table decision), "[w]ithout a more definitive statement from the Supreme Court [the Sixth Circuit has determined it] is bound by its own precedent and will therefore apply the de novo standard to the [application of judicial estoppel.]" Lorillard Tobacco Co. v. Chester, Willcox Saxbe, LLP, 546 F.3d 752, 757 (6th Cir. 2008).
III. FACTS
Alma Energy, LLC (the "Debtor") acquired rights in 2005 and 2006 to mine coal on two tracts of land in Pike County, Kentucky, known as the "Pocahontas Leases." On July 27, 2006, the Debtor and THC Kentucky Coal Venture I, LLC ("THC") organized a joint venture known as "KCV I" for the purpose of mining and selling coal from the Pocahontas Leases. Eventually, disputes regarding operations, funding, and payments arose between the members of the joint venture leading to cessation of the mining operations.
On August 13, 2007, the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. Following the filing of the Debtor's chapter 11 petition, the Debtor, THC, and KCV I entered into a settlement agreement for the purpose, at least in part, of allowing the Debtor to resume the mining operations. The bankruptcy court approved the settlement agreement on February 8, 2008.
On March 17, 2008, the Debtor and Appellant met to explore the possibility of Appellant funding the Debtor's resumption of mining operations. Following review of the settlement agreement entered into by the Debtor, THC, and KCV I, and the bankruptcy court's approval of same, Appellant agreed to finance the restoration of the Debtor's mining activities and to provide management and marketing services once the Debtor resumed activity.
The Debtor did not seek bankruptcy court approval for post-petition financing by Appellant. Nevertheless, over a three-month period Appellant expended nearly $2,000,000 in connection with the Debtor's project. Appellant claims that over $867,000 of that expenditure directly benefitted the Debtor's estate. Appellant also undertook to find buyers for the Debtor's coal, and to pay the Debtor $64 per merchantable ton of coal produced. Appellant did not require that its expenditures be repaid from the Debtor's revenues on any particular schedule. Appellant apparently understood that the Debtor's commitments to pre-petition creditors, governmental agencies and royalty recipients under its proposed reorganization plan would for several years consume nearly all of the $64 per ton that the Debtor projected receiving for its coal. Appellant was willing to defer its compensation so that the Debtor could successfully reorganize.
On June 20, 2008, the Debtor resumed mining operations. Over a five month period, 100,000 tons of coal were extracted, the sale of which generated over $1.6 million. Approximately $72,000 was paid to Appellant for the leasing of certain equipment. At the end of 2008, due to market conditions, the Debtor once again ceased mining operations.
On April 17, 2009, the United States Trustee moved to dismiss the case or convert it to one under chapter 7. On May 20, 2009, the bankruptcy court entered an order converting the Debtor's case to one under chapter 7. Also on that date, the United States Trustee appointed Phaedra Spradlin as chapter 7 trustee ("Trustee") of the Debtor and its bankruptcy estate.
On May 19, 2009, Appellant filed an application for allowance of administrative expense claim seeking allowance for an administrative claim in the amount of $867,276.72. Objections to Appellant's application were filed by THC, the United States Trustee, and the newly appointed chapter 7 Trustee. A hearing was held on November 12, 2009, at which the bankruptcy court concluded:
[I]t's clear to the Court and as virtually all have admitted that — that Pikeville's expenditure of sums did, in fact, benefit the estate by security, by retrofitting the mine, by producing coal, which produced money for the estate, and to the extent that benefit to the estate is a part of the administrative expense test. Certainly, I think Pikeville
qualifies in that regard. The problem, it seems to the Court, is the — the estoppel problem. Multiple times representatives of Pikeville stated to the Court in the hearing of other parties and creditors that they did not intend to be paid back sums they expended as administrative expenses. They also — they and their representatives were present when other parties made representations to the Court, such as planned reorganization or a disclosure statement that Pikeville did not — did not expect to be — to make a claim for administrative expenses. I believe that constitutes a — waiver of any claim and that they are estopped from making such a claim. I think the US Trustee's analysis is correct, that they chose — they made a business deal and if that business deal went, they — they, in all likelihood, would have profited and that reimbursement, as an administrative expense, was not part of the deal that they made or the deal that they represented to the Court. So, that application is overruled.
(J.A. at Docket No. 911-1, pp. 43-44.) On November 16, 2009, the bankruptcy court entered a written order denying the application, and Appellant timely appealed.
The facts at issue here are statements and representations made by the parties regarding Appellant's expectation, or lack thereof, of being reimbursed for its expenses in the form of an administrative expense claim. Those statements, and omissions, are as follows.
On May 8, 2008, the Debtor filed a Disclosure Statement, which read in pertinent part:
Pikeville [] has provided funds to Blackberry Energy LLC
that have allowed it to secure for [the Debtor] all insurance required under the Settlement Agreement, to post the necessary bonds for [the Debtor], and to pay sums to the Commonwealth of Kentucky necessary to transfer mining permits from Nathan's Welding LLC to [the Debtor]. Pikeville [] has pledged to provide all funds necessary or convenient to the continued operations of Blackberry Energy LLC and [the Debtor]. Both Pikeville [] and Blackberry Energy LLC have provided and will provide funds and services in return for payment for future services rendered to [the Debtor] by Blackberry Energy LLC and for the availability of coal necessary to fulfill contractual obligations.
[The Debtor] is under no obligation to repay Pikeville [] or Blackberry Energy LLC any of the funds expended by either entity for the benefit of [the Debtor].
(J.A. at Docket No. 331, p. 69.) (emphasis in original).
On May 10, 2008, the Debtor filed an Emergency Motion to Approve Mining Agreement in which it represented that Appellant had "agreed to provide all funds necessary to restart production, with no obligation of the Debtor regarding such funds." (J.A. at Docket No. 335, p. 2.) In that motion, the Debtor further represented that "Pikeville Energy assumed the risk that a successful reorganization plan would be possible and agreed to pay all costs and expenses of [the Debtor] in return for the right to purchase coal mined at the [the Debtor's] mine sites." (J.A. at Docket No. 335, pp. 3-4.)
On June 4, 2008, the Debtor filed a Motion to Approve Interim Contract Mining Agreement and to Shorten Notice, which stated in pertinent part:
11. Pikeville Energy is willing to provide the funds necessary to restart production based on security interests it has retained in equipment to be used by Blackberry Energy LLC as contract miner for [the Debtor]; interests in a security position it has been granted in mineral interests owned by Nathan Williams that are not related to [the Debtor], namely a property known as Money Branch; assignment of a portion of the allowed unsecured claim of Nathan Williams; and a future equity position in [the Debtor].
12. The fact that [the Debtor] is not liable for repayment of money paid to date by Pikeville for the benefit of [the Debtor], does not in any way mean that Pikeville will not receive income from [the Debtor] as a result of a successful reorganization.
13. Any suggestion by Halle that Pikeville [] will not benefit from a successful . . . reorganization and will not lose money if [the Debtor] fails is totally false.
(J.A. at Docket No. 359, p. 3.)
On June 12, 2008, the bankruptcy court held a hearing on the motion filed on June 4, 2008, at which Appellant was represented by counsel. The record before the Panel reflects no objection of counsel for Appellant to the statements quoted above. The bankruptcy court sustained the Debtor's motion and entered an order approving the interim contract mining agreement on June 16, 2008.
The Trustee's brief states that "[d]uring the hearing, Pikeville Energy counsel argued that the Bankruptcy Court should grant the relief requested. . . . Pikeville Energy's counsel raised no issue regarding the information in the Second Emergency Motion quoted above at the hearing or in any written papers." (Appellee's Br. at 7.) The Panel was not provided with a transcript of this hearing and we cannot, therefore, confirm the Trustee's representation regarding counsel for Appellant's statements at the hearing. However, Appellant did not contest this statement in its timely filed reply brief, and indeed, as the Trustee represents, the record reflects no objections made by Appellant in any written pleadings.
On July 25, 2008, KCV I took a Rule 2004 examination of a representative of Appellant at which the following exchange took place:
Q. But we know based on pleadings filed with the bankruptcy court by the debtor, that the debtor has no obligation to reimburse Pikeville for any monies that its [sic] put into this venture with Blackberry, right? A. That's true. Q. So if there's going to be a reimbursement, it's going to come from Blackberry Energy to Pikeville for Snyder's fees? A. Correct. (J.A. at Docket No. 593-3, p. 116, lines 14-25.)
On February 6, 2009, the Debtor amended its Disclosure Statement. The Amended Disclosure Statement reads in pertinent part:
Furthermore, Pikeville [] has provided, and will continue to provide, funds for the resumption of mining, repairs and maintenance, and continued operations of Blackberry Energy LLC and [Debtor], Pikeville [] has expended approximately $4,500,000 to $5,000,000 to date. Both Pikeville [] and Blackberry Energy LLC have provided and will provide funds and services in return for payment for future services rendered to [Debtor] by Blackberry Energy LLC and for the
contractual right to purchase of coal. [Debtor] is under no contractual obligation to repay Pikeville [] or Blackberry Energy LLC funds expended prior to the date of this Disclosure [Statement] by either entity for the benefit of [Debtor].
(J.A. at Docket No. 523, p. 21.) The bankruptcy court approved the Amended Disclosure Statement by order dated February 9, 2009.
IV. DISCUSSION
The bankruptcy court did not err in applying judicial estoppel. In Lorillard Tobacco Co. v. Chester, Willcox Saxbe, LLP, 546 F.3d 752 (6th Cir. 2008), the Sixth Circuit Court of Appeals explained the equitable doctrine of judicial estoppel in detail.
Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who acquiesced in the position formerly taken by him. Judicial estoppel is an equitable doctrine that preserves the integrity of the courts by preventing aparty from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment. The doctrine of judicial estoppel bars a party from (1) asserting a position that is contrary to one that the party has asserted under oath in a prior proceeding, where (2) the prior court adopted the contrary position either as a preliminary matter or as part of a final disposition. A court should also consider whether the party has gained an unfair advantage from the court's adoption of its earlier inconsistent statement. Although there is no set formula for assessing when judicial estoppel should apply, it is well-established that at a minimum, a party's later position must be clearly inconsistent with its earlier position for judicial estoppel to apply. Moreover, the doctrine of judicial estoppel is applied with caution to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement.
Id. at 757 (internal quotation marks and citations omitted).
While conceding that if the Debtor's chapter 11 reorganization plan had been confirmed it would not be entitled to an administrative expense claim, Appellant primarily argues that judicial estoppel is not applicable to its administrative expense claim here because the Debtor's case was converted to one under chapter 7. Appellant asserts that statements it made, and objections it did not make, to representations of the Debtor regarding its financing, must be viewed in the context of a failed attempt at reorganization, because had the reorganization been successful, Appellant would have been reimbursed in a variety of ways. As a result of the failure at reorganization and conversion to liquidation, however, Appellant argues it can now only be reimbursed via an administrative expense claim. According to Appellant, it is not taking an inconsistent position now because the Debtor never represented that Appellant would not seek reimbursement for its expenditures as administrative expenses if the case were converted to chapter 7 because conversion was not at issue.
Appellant also argues that judicial estoppel is not applicable because, with the exception of two "isolated questions" at the 2004 examination, the statements at issue were made by the Debtor, not by Appellant. Additionally, Appellant asserts it was not a participant in the proceedings at the time the statements were made in connection with the second motion for approval of an interim mining agreement. Appellant does, however, acknowledge that it appeared though counsel at the hearing on the motion, supported the Debtor's motion, and did not contradict any statements in the motion. It also concedes that it benefitted from the bankruptcy court's approval of the motion.
The Trustee takes the position that judicial estoppel applies here regardless of the conversion because "conversion and liquidation are possibilities in every chapter 11 case. . . ." (Appellee's Br. at 15.) The Trustee also focuses on Appellant's lack of objection to the statements made by the Debtor that it had no obligation to repay Appellant. She urges the Panel to view Appellant's application for an administrative expense claim at this juncture as a contrary position to that which Appellant took by virtue of its earlier silence or lack of objection to the Debtor's statements. In support of her position, the Trustee cites In re Louden, 106 B.R. 109, 112 (Bankr. E.D. Ky. 1989), in which the bankruptcy court found that a party's silence where there was a duty to make a factual disclosure gave rise to judicial estoppel. In addition, she cites to the Fourth Circuit Court of Appeals' decision in King v. Herbert J. Thomas Memorial Hosp., 159 F.3d 192, 196-97 (4th Cir. 1998), in which it held that a single failure to correct an inaccurate factual disclosure, which is not based upon a mistake or inadvertence, is sufficient to create an inconsistency when a contrary position is taken.
The Debtor repeatedly represented to the bankruptcy court that Appellant did not expect reimbursement for its financing of the Debtor's mining activities. Appellant was represented by counsel at hearings before the bankruptcy court where such representations were made but did not object to or attempt to qualify those representations. Appellant concedes as much in its brief before the Panel. In fact, Appellant concedes that had the case not been converted from chapter 11 to chapter 7 it would not be entitled to an administrative expense claim. The conversion of the case to chapter 7, however, does not prevent the application of judicial estoppel. As the Trustee states in her brief, conversion and liquidation are always possibilities in chapter 11 cases, possibilities for which Appellant should have considered and made allowances. After representing that it would not seek reimbursement of its investments, and allowing the Debtor to make those representations to the bankruptcy court and the Debtor's creditors, Appellant should not now be permitted to take a contrary position and pursue an administrative expense claim simply because the case has been converted to chapter 7. Appellant took a calculated business risk which ultimately did not pay off.
"`[J]udicial estoppel is most commonly applied to bar a party from making a factual assertion in a legal proceeding which directly contradicts an earlier assertion made in the same proceeding or a prior one.'" Guar. Residential Lending, Inc. v. Homestead Mortgage Co., LLC, 291 F. App'x 734, at *10 (6th Cir. 2008) (quoting United States v. Bussell, 504 F.3d 956, 963 (9th Cir. 2007)). Through its failure to object to, or qualify the Debtor's statements, Appellant asserted that it would not seek reimbursement for its financing. Judicial estoppel now prevents Appellant from directly contradicting that assertion by pursuing an administrative expense claim.
V. CONCLUSION
For the foregoing reasons, the bankruptcy court's order denying Appellant's administrative expense claim is AFFIRMED.
8 Primer 3 (2008). Therefore, the mere fact that the characteristics of certain alleles of a defendant's DNA matches the characteristics of alleles of DNA found at a crime scene says almost nothing about the likelihood that the defendant was present at the crime scene unless the jury learn from an expert about the nature of the DNA profile used.
"Evidence of a match based on currently used testing processes is meaningless without evidence indicating the significance of the match."
Commonwealth v. Lanigan, 419 Mass. 15, 20 (1994). See
Commonwealth v.
Mattei, supra; Commonwealth v. Rosier, 425 Mass. 807, 813 (1997). Only an expert can testify to the likelihood that more than one person possesses a particular DNA profile, based on her knowledge of the alleles selected for the DNA profile and the mathematical probabilities that more than one person may possess the same characteristics of those alleles. See
Commonwealth v.
Mattei, supra at 855, quoting
Peters v. State, 18 P.3d 1224, 1228 (Alaska Ct. App. 2001) (average juror has no knowledge of frequency of particular DNA profile).
"To assess the probability that DNA from a randomly selected person has the same profile as the evidence DNA, we need to know the frequency of that profile in the population. That frequency is usually determined by comparison with some reference data set. A very small proportion of the trillions of possible profiles are found in any database, so it is necessary to use the frequencies of individual alleles to estimate the frequency of a given profile." National Research Council, The Evaluation of Forensic DNA Evidence 89-90 (1996).
The defendant also contends that, where the analyst who con- ducts the DNA tests does not testify, the defendant is disadvantaged because he cannot cross-examine the testing analyst regarding the possibility of mislabeling or mishandling of the DNA, or outright manipulation of data or fraud. This practical limitation on the scope of cross-examination exists whenever any expert relies on the results of tests, experiments, or observations conducted by another. Nevertheless, we have permitted experts to do exactly this since Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 532 (1986). For instance, a medical examiner who offers an opinion at trial as to the cause of death but who did not conduct the autopsy (or see a videotape or photographs of the autopsy) cannot be effectively cross-examined as to whether the medical examiner who conducted the autopsy fabricated or manipulated the data, or erred in labeling the entry wound as an exit wound, or in measuring the length or breadth of tissue damage. These same inherent limitations exist where a DNA analyst who did not conduct the testing offers an opinion as to the significance of the results. The only difference is that, with DNA analysis, the testing techniques are so reliable and the science so sound that fraud and errors in labeling or handling may be the only reasons why an opinion is flawed. See National Research Council, Strengthening Forensic Science in the United States: A Path Forward 130 (2009) (because of reliability of forensic DNA analysis, "absent fraud or an error in labeling or handling, the probabilities of a false positive are quantifiable and often minuscule").
Our common-law rules of evidence protect a defendant in various ways from the risk of inaccurate forensic analysis. Where there is reason to believe that evidence has been mislabeled or mishandled or that data have been fabricated or manipulated, a defendant may challenge the admissibility of an expert opinion relying on such evidence or data in a Daubert-Lanigan hearing, because an opinion must rest on evidence or data that provide "a permissible basis" for an expert to formulate an opinion. Department of Youth Servs. v. A Juvenile, supra at 531. See Commonwealth v. Sparks, 433 Mass. 654, 659 (2001) (to preserve objections to scientific reliability of laboratory's DNA testing kits and database for formulating statistical frequencies, defendant must file appropriate pretrial motion and request hearing). A defendant may also challenge the admissibility of an opinion where an expert relies solely on the conclusions of the testing analyst, without knowledge of the procedures employed by the testing analyst or the underlying data and evidence that are generally contained in worksheets, because a conclusory opinion alone may not be a permissible basis on which an expert may rest an opinion. Where an expert opinion survives a DaubertLanigan challenge or where, as here, the defendant does not challenge the admissibility of the expert's opinion, the defendant may still, as here, cross-examine the testifying expert as to the risk of evidence being mishandled or mislabeled, or of data being fabricated or manipulated, and as to whether the expert's opinion is vulnerable to these risks.
The defendant in this case had an adequate opportunity to cross-examine Lynch as to these risks. Lynch had trained Delatore, served as her supervisor, conducted a full technical review of her DNA reports regarding the testing that was performed and the results of testing, and signed her reports. While Lynch admitted that she did not observe Delatore perform the DNA testing, and therefore did not have personal knowledge of how Delatore conducted the testing, she was familiar with the protocols Delatore was taught to employ, Delatore's documentation of her work, and Delatore's work history.
We do not suggest that, where the analyst who performed the testing is unavailable, only the analyst's supervisor may offer an opinion based on the analyst's work product, but we recognize that the analyst's supervisor is often the person who is most familiar with the analyst's performance of her duties. Here, Lynch was "perhaps the ideal witness, against whom to lodge . . . challenges" to "systemic problems with the laboratory processes," about which only someone in a supervisory position like hers might be aware. Pendergrass v. State, 913 N.E.2d 703, 708 (Ind. 2009).
Furthermore, defense counsel's cross-examination of Lynch elicited that she had not performed the testing in the present case and that she therefore had "no idea" whether the results were accurate. In this sense, the defendant actually benefited from the absence of Delatore in that he could undermine Lynch's testimony by showing that she could not be sure there were no flaws in Delatore's work without establishing that there were any actual flaws. See United States v. Moon, 512 F.3d 359, 361 (7th Cir.), cert. denied, 129 S. Ct. 40 (2008).
Having concluded that it was error to admit in evidence Lynch's testimony regarding Delatore's opinion and factual findings, and the table summarizing those factual findings, we turn to the question whether these errors require a new trial where Lynch's opinion was properly admitted. The defendant did not object to the admission of this testimony or otherwise preserve his claim of error, so the error must be examined under the miscarriage of justice standard. See Commonwealth v. Avila, 454 Mass. 744, 763 (2009) (unpreserved error on Sixth Amendment grounds reviewed for substantial likelihood of miscarriage of justice). In examining whether an unpreserved error created a substantial likelihood of a miscarriage of justice, we consider the totality of evidence admitted at trial. See Commonwealth v. Nardi, 452 Mass. 379, 395 (2008), citing Commonwealth v. Montez, 450 Mass. 736, 750 (2008).
The defendant contends that, because the trial ended before the United States Supreme Court granted certiorari in Commonwealth v. Melendez-Diaz, 69 Mass. App. Ct. 1114 (2007), the standard of review should be harmless beyond a reasonable doubt. He argues that, in light of our decision in Commonwealth v. Verde, 444 Mass. 279 (2005), where we concluded that drug certificates were not testimonial statements within the meaning of the confrontation clause of the Sixth Amendment, it would have been futile to have objected because the judge was required to follow the Verde decision. See Commonwealth v. Vasquez, 456 Mass. 350, 356-358 (2010). As we have noted, the admission of Cheryl Delatore's opinion and factual findings through Lynch's expert testimony was contrary to the limits we imposed on expert testimony in Department of Youth Servs. v. A Juvenile, 398 Mass. 516 (1986), so the defendant's objection to this testimony would not have been futile.
The defendant is correct that the DNA evidence was particularly harmful to his defense of misidentification. The most probative aspect of this evidence, however, was Lynch's opinion that Serret was included as a possible source of the bloodstain on the defendant's boot and pant leg, and that the likelihood that someone other than Serret was a source was infinitesimal. We allow expert testimony in the realm of DNA evidence specifically because it is the type of "scientific, technical, or other specialized" field that "lies outside of common experience." Mass. G. Evid. § 702 Note at 217, 220 (2010), quoting Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 581 (1998). Without Lynch's expert interpretation and analysis, neither the admission of the results table in evidence nor Lynch's description of the information contained in it was particularly meaningful. Having considered Lynch's opinion, which defense counsel ably cross-examined, as well as the other overwhelming evidence against the defendant, we conclude that no substantial likelihood of a miscarriage of justice resulted from the improper admission of Delatore's results table, or Lynch's testimony regarding Delatore's results and opinion. See Commonwealth v. Griffith, 404 Mass. 256, 260 (1989), quoting Commonwealth v. Shine, 398 Mass. 641, 655 (1986) (where "evidence of guilt . . . was overwhelming," no substantial likelihood of miscarriage of justice).
Prior bad act evidence. The defendant next challenges the introduction of Carbuccia's testimony that he and Serret witnessed the defendant kill another man roughly two weeks before the defendant allegedly shot them. Prior to trial, defense counsel filed a motion in limine to exclude this "prior bad act" evidence as unfairly prejudicial. The judge conducted a voir dire of Carbuccia and determined that he could give limited testimony regarding the prior shooting because it was probative of motive. When Carbuccia testified before the jury, defense counsel objected on the same grounds as the motion in limine, and the objection was overruled in light of the judge's earlier ruling.
The judge ruled that Carbuccia could not testify that the girl friend and children of the victim of the alleged prior shooting were present at the time, and instructed the prosecutor to lead Carbuccia if necessary to avoid this prejudicial testimony.
"It is long established that evidence of uncharged criminal acts or other misbehavior is not admissible to show a defendant's bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes such as `common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.'" Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006), quoting Commonwealth v. Marshall, 434 Mass. 358, 366 (2001). See Mass. G. Evid., supra at § 404 (b), at 46-47. The rule against prior bad act evidence reflects the "inherent danger" that the jury will assume that, because the defendant has "previously misbehaved, indictably or not," he must have committed the crime charged. Commonwealth v. Baker, 440 Mass. 519, 529, 530 (2003), quoting Commonwealth v. Trapp, 396 Mass. 202, 206 (1985), S.C., 423 Mass. 356, cert. denied, 519 U.S. 1045 (1996). However, unless the probative value of the evidence is substantially outweighed by the risk of unfair prejudice to the defendant, the evidence may be admissible for a permissible purpose, such as to prove that a defendant had a motive to commit the crime. See Commonwealth v. Holliday, 450 Mass. 794, 815-816, cert. denied sub nom. Mooltrey v. Massachusetts, 129 S. Ct. 399 (2008). We review the decision of the judge to admit evidence of a prior bad act to establish the defendant's motive under the abuse of discretion standard. See Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009).
The judge did not abuse her discretion. The record reflects that she appropriately balanced the probative weight of the evidence with the risk of unfair prejudice, and prudently determined that the prior bad act evidence was admissible for a limited purpose only. The evidence that Serret and Carbuccia had witnessed the defendant shoot someone else was not introduced to show the defendant's bad character, but to explain why the defendant would decide to shoot Serret and Carbuccia two weeks later. Without this evidence of motive, the shootings of Serret and Carbuccia might have appeared to the jury "essentially inexplicable act[s] of violence." Commonwealth v. Mendes, 441 Mass. 459, 464 (2004), quoting Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1982). From Carbuccia's testimony, the jury reasonably could have inferred that the defendant was aware that Serret and Carbuccia had witnessed the September 21 shooting, that he was so concerned they would reveal his involvement to the police that he telephoned Serret thirty-seven times between September 23 and September 27, and that he ultimately decided that the only way to ensure their silence was to kill them. See Commonwealth v. Drew, 397 Mass. 65, 79-80 (1986) (evidence that victim was eyewitness to defendant's involvement in earlier murder admissible to show defendant's motive). We conclude that the judge did not err in admitting the prior bad act evidence as probative of motive.
In response to a request by defense counsel, the judge gave a strong instruction regarding the limited purpose for which the jury could use the prior bad act evidence, both after Carbuccia's testimony and again in her final instructions to the jury after the closing arguments. This instruction was taken virtually verbatim from defense counsel's request, and counsel did not object either time it was given. The defendant now argues that the instruction constituted reversible error because the judge did not explicitly state that the jury must believe that the prior shooting occurred before they could use the evidence for the limited purpose of showing motive. Because the defendant did not object to the instruction at trial, we review the omission to determine whether it created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Mercado, 456 Mass. 198, 205 n. 14 (2010).
After Carbuccia's testimony, the judge instructed the jury:
"Now you have just heard mention of a previous shooting allegedly on September 21, 2004, and allegedly done by [the defendant]. I instruct you that you may not take that as a substitute for proof that the defendant committed the crimes that he is charged with here, nor may you consider it as any evidence that the defendant has a criminal personality or bad character.
"You may consider it solely on the limited issue of whether or not [the defendant] had a motive to commit the crimes charged in the indictments here, that is the events that allegedly occurred on October 6, 2004. You may not consider the evidence that you just heard of the prior shooting for any other purpose.
"Specifically you may not use it to conclude that if the defendant committed the shooting of September 21, 2004, he must also have committed the offenses that he is charged with here.
"I caution you in considering this evidence that the defendant is not on trial for anything arising out of events of September 21 of 2004, and you are not to consider the evidence . . . as a substitute for proof of the guilt of the offenses for which he stands charged in this case.
"You may use the evidence that you just heard only for the limited purpose that I have just explained to you. Now in addition, in considering the prior shooting, you the jury, must be satisfied as to the accuracy of the identification of [the defendant] as the perpetrator of that shooting before you may consider this evidence at all."
The judge repeated this instruction almost verbatim in her closing instructions.
The instruction also closely mirrored Massachusetts Superior Court Criminal Practice Jury Instruction § 4.20.2 (Mass. Continuing Legal Educ. 1999 1st Supp. 2003), and Instruction 3.760 of the Criminal Model Jury Instructions for Use in the District Court (2009).
The defendant urges us to adopt the following instruction: "It is for you to decide whether to believe this evidence and you cannot even consider it unless you believe it."
We are not persuaded that the instruction now claimed to be essential by the defendant would have told the jury anything they did not know. If the jury did not believe that the September 21 shooting occurred, they would not have relied on the evidence of the September 21 shooting to establish motive.,
The instruction the defendant seeks — that the jury "cannot even consider" this evidence unless they believe it — would be error. If the jury were to disbelieve Carbuccia's testimony that the defendant shot another person on September 21, they would be free to consider Carbuccia's fabrication of evidence in evaluating his testimony about the shooting of Serret and himself. See Commonwealth v. Manning, 367 Mass. 605, 607 (1975) (if jury disbelieved important part of witness's testimony, then "this disbelief could quite naturally have led the jury to disbelieve the [witness's] further testimony").
The defendant argues that the relevance of a prior bad act depends on the fulfilment of a condition of fact, and is admissible only if the judge finds by a preponderance of the evidence that the prior bad act occurred and that the defendant committed the act. See Commonwealth v. Rosenthal, 432 Mass. 124, 126-127 (2000). See generally Mass. G. Evid. § 104 (b) (1), at 11 (2010). The defendant then quotes the Mass. G. Evid., supra at § 104 Note at 13, that, "[a]fter making certain preliminary findings of facts in criminal cases, the judge must instruct the jurors to disregard the evidence if they do not believe that the preliminary facts exist." This instruction is required only where the preliminary fact is something other than the actual occurrence of the act at issue, where the jury otherwise might consider the act despite finding that the preliminary fact did not exist. For instance, a jury must be instructed that, before considering statements by a joint venturer, they must find on the basis of the other evidence, not including those statements, that a joint venture existed and that the statements were made during the joint venture and in furtherance of its goals; the jury need not be instructed that they must find that the statements were made before considering them. See Commonwealth v. Collado, 426 Mass. 675, 681-682 (1998); Commonwealth v. Boyer, 52 Mass. App. Ct. 590, 598 (2001). See also Commonwealth v. Key, 381 Mass. 19, 22-23 n. 1 (1980) (to consider dying declaration, jury must first find that victim was aware of impending death).
The defendant claims that, by failing to give this instruction, the judge invaded the province of the jury to determine the weight and credibility of the prior bad act evidence. We disagree. The judge did not suggest to the jury in her limiting instruction that she believed the defendant had committed the prior bad act or that the jury need not assess the weight and credibility of Carbuccia's testimony regarding the alleged prior shooting. Not only, in the first sentence of her limiting instruction, did she refer to an alleged prior shooting "allegedly done by [the defendant]," but she added in the final sentence of the instruction that the jury "must be satisfied as to the accuracy of the identification of [the defendant] as the perpetrator of that shooting before you may consider this evidence at all." This final sentence alone sufficed to ensure that the jury would first decide whether they believed the prior bad act evidence before they inferred motive based on it. Because there was no error, we need not consider whether it created a substantial likelihood of a miscarriage of justice.
Serret's mother's testimony that Serret and Carbuccia said they "saw something." Serret's mother testified that, on "roughly" the night of September 21, 2004, Serret and Carbuccia came to her house. The prosecutor asked her whether she remembered them telling her "that they saw something that night." Over defense counsel's objection, she answered simply, "Yes." The defendant argues that this evidence was inadmissible. We conclude that the evidence was admissible as a prior consistent statement by Carbuccia.
The judge did not state the ground for overruling the objection.
Generally, a prior statement by a witness that is consistent with his trial testimony is inadmissible. See Commonwealth v. Novo, 449 Mass. 84, 93 (2007). However, if a witness is impeached on cross-examination by a claim of recent contrivance or inducement, a statement that he made before he had an incentive to fabricate his testimony may be admitted. See id. See generally Mass. G. Evid., supra at § 613 (b), at 201-202, 205-206. It is within the judge's discretion to determine whether a claim of recent contrivance exists and whether to admit the witness's prior consistent statement "when he has been or will be impeached with an inconsistent statement" (emphasis added). Commonwealth v. Saarela, 376 Mass. 720, 723 (1978), citing Commonwealth v. Zukoski, 370 Mass. 23, 27 (1976).
At trial, Serret's mother testified before Carbuccia took the stand. Nonetheless, it was clear from defense counsel's opening statement that he planned to impeach Carbuccia with the prior statement that he made to the police and grand jury shortly after October 6 in which he denied having seen the September 21 shooting. It was also clear that defense counsel intended to suggest that Carbuccia developed a motive to lie on account of the financial and housing assistance he received from the district attorney's office. In a similar case, we held that it was not an abuse of discretion for the judge to allow two witnesses to testify to their earlier consistent statements where "[d]efense counsel made plain in his opening statement that he would attack the credibility of the witnesses, and on cross-examination did impeach them. . . ." Commonwealth v. Rivera, 430 Mass. 91, 100 (1999). See Commonwealth v. Martinez, 425 Mass. 382, 397 (1997), quoting Commonwealth v. Saarela, supra (witness made number of inconsistent statements in past and subsequently entered plea agreement, making claim of recent contrivance "unavoidable" or "inevitable"). That a prior consistent statement is introduced before defense counsel has an opportunity to impeach the witness is "not, however, determinative" of whether that statement may be properly admitted. Commonwealth v. Knight, 437 Mass. 487, 497 (2002). Because it was obvious here that defense counsel would impeach Carbuccia on cross-examination regarding the September 21 shooting, the judge had "wide discretion" to admit Carbuccia's prior consistent statement to Serret's mother on September 21 that he and Serret "saw something" earlier that evening. Id., quoting Commonwealth v. Saarela, supra.
Defense counsel told the jury, "What you'll also hear about Mr. Carbuccia is that he testified under oath in another proceeding shortly after this incident that, again this was more than two years ago, and he testified under oath when asked: `Did you witness this prior shooting, this so-called motive?' `No.' He didn't see it, it was around the corner. Didn't see who did that. Under oath he said that."
Defense counsel said, "You will also hear some other interesting information, testimony about Mr. Carbuccia, that he was paid a significant amount of money by the Commonwealth, that he is currently staying in a hotel at the Commonwealth's expense."
The defendant did not request and the judge did not give a limiting instruction informing the jury that they may consider this testimony only in evaluating whether Carbuccia's testimony at trial regarding the September 21 shooting was recently contrived. See Commonwealth v. Rivera, supra (defendant entitled, on request, to limiting instruction). The judge's failure to give such an instruction sua sponte did not result in a substantial likelihood of a miscarriage of justice. Id. Unequivocal, post-Miranda denials of guilt. Detective Harris interviewed the defendant at the Boston police headquarters on the night of his arrest. He read the defendant his Miranda warnings, and the defendant initialed and signed a form saying that he had been advised of his rights. On direct examination at trial, Detective Harris testified that during the interrogation the defendant denied the accusations against him:
"I told him that the sewer was currently being searched and I asked him to tell me what happened. I said: `Were you involved in something that occurred up there?' He told me, he continuously and repeatedly denied throwing anything in the sewer and having anything to do with that. I then went on to tell him that there were two people shot in that particular neighborhood and I essentially was asking him what happened, was he in a fight? That he'll feel better if he can get it off his chest, tell me what occurred up in that area. Again, he denied any involvement in the shooting and he denied any involvement whatsoever with throwing anything into the sewer."
Defense counsel did not object to this testimony at trial. On appeal, the defendant argues that his unequivocal, post-Miranda denials of guilt should have been excluded. The Commonwealth concedes the error but asserts that it did not create a substantial likelihood of a miscarriage of justice.
In Commonwealth v. Womack, ante 268, 276 (2010), we recognized that, where a defendant's general denial of an accusation is admitted in evidence in error, "[t]he core of any prejudice is more likely caused by admission of the accusation[] than the denial[]," because a detailed accusation improperly puts in evidence the Commonwealth's version of the facts, whereas it is "generally of great value" to a defendant for a jury "to hear evidence of his prompt, clear, and emphatic denial[] without his having to testify." Id. Here, Detective Harris's statements and the defendant's denials were inadmissible hearsay, but their introduction in evidence did not create a substantial likelihood of a miscarriage of justice. Detective Harris's questioning of the defendant was more inquisitive than inquisitory. The facts of the case that his questions conveyed — two people were shot, and a search of the sewer occurred — were cumulative of other evidence and were stated only briefly and in general terms. See id. at 275. The defendant's denials actually supported and were consistent with his defense that he was misidentified as a suspect. See Commonwealth v. Diaz, 453 Mass. 266, 274 (2009) ("premise of the defense was misidentification; evidence of the defendant's denial did not harm the defendant's case in this regard"). It is perhaps for this reason that defense counsel did not object, did not move to strike the testimony, and did not seek a curative instruction. See Commonwealth v. Kirwan, 448 Mass. 304, 315 (2007) (where "error was, in a sense, invited . . . rather than creating a substantial likelihood of a miscarriage of justice, it benefited the defendant" [citation omitted]).
DiGiambattista instruction. Detective Harris's interrogation of the defendant was not tape recorded. Prior to the final charge conference, defense counsel requested that a jury instruction based on Commonwealth v. DiGiambattista, 442 Mass. 423 (2004) ( DiGiambattista), be given. In DiGiambattista, we held pursuant to our supervisory powers:
"[W]hen the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care."
Id. at 447-448.
Where voluntariness is a live issue at trial and the humane practice instruction is given, we also require that the jury be instructed "that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt." Commonwealth v. DiGiambattista, 442 Mass. 423, 448 (2004). This instruction was not required here because the voluntariness of the defendant's statements to the police was not a live issue.
In response to defense counsel's request, the judge said she would instruct the jury to exercise "great caution and care" in weighing the interrogation evidence, but would not say that "the State's highest court has expressed a preference" for taperecorded interviews. In her charge to the jury, the judge instructed:
"[I]n this case, you have heard some evidence that the police allegedly interrogated the defendant at police department headquarters on October 6, 2004, and that that alleged interrogation was not tape recorded.
"Let me inform you, ladies and gentlemen, that because of the absence of any recording of the interrogation in this case, you should weigh that evidence with great caution and care."
At the conclusion of the charge, defense counsel objected and once more requested the full DiGiambattista instruction. The judge declined to give it. On appeal, the defendant claims that the failure to give the complete instruction was prejudicial error. See Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) ("Because the issue was properly preserved, we review to determine whether we can be certain that the improper instruction `did not influence the jury, or had but very slight effect'").
We agree that the judge erred in giving only the second part of the requested instruction. DiGiambattista is clear that, where the defendant requests the instruction, the judge must tell the jury both that (1) the State's highest court prefers that custodial interrogations be tape recorded, whenever practicable, and (2) where there is not at least an audiotape recording of the complete interrogation, the jury should weigh the defendant's statements with great caution and care. We do not consider the first part of this instruction to be extraneous.
While the instruction is mandatory, see id. at 448, we have not required that the precise language of the instruction be used, see Commonwealth v. Boyarsky, 452 Mass. 700, 710 (2008); nor do we do so now. The judge here, however, did not simply use different words to convey the same meaning. Her giving only one-half of the instruction denied the defendant his entitlement to the full instruction.
In the context of this case, however, the error was not prejudicial. The defendant's unrecorded statements were some of the weakest evidence against him. Most of what the defendant said was self-serving. The only statements he made that strengthened the prosecution's case were his shifting versions of whether he had been coming from or going to the bar on Shirley Street, and whether he had been on Marshfield Street that night, as well as his claim that he ran from police because he believed he had an outstanding warrant for his arrest based on a motor vehicle violation, when he had no such warrants. We can be certain that the improper instruction did not influence the jury because, even if the jury had disregarded the defendant's statements entirely, we are convinced they would still have convicted the defendant based on other overwhelming evidence.
Autopsy photograph. Finally, the defendant claims that the judge abused her discretion in admitting a redacted autopsy photograph of a portion of Serret's skull. The defendant argues that, because the medical examiner testified that the injuries to Serret's skull were sustained after the cessation of life, the extent of those injuries was irrelevant to whether the murder was committed with extreme atrocity or cruelty. The defendant asserts that, because it was not probative of a material issue in dispute, it was unfairly prejudicial to admit the photograph in evidence.
The photograph was relevant to the issue of extreme atrocity or cruelty, because it indicated the amount of force applied and the extent of the injuries inflicted. See Commonwealth v. Boateng, 438 Mass. 498, 507 (2003); Commonwealth v. Ramos, 406 Mass. 397, 406-407 (1990). Under Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), the jury may consider various factors in deciding whether a murder was committed with extreme atrocity or cruelty, including the "extent of physical injuries, number of blows, manner and force with which delivered, instrument employed, and disproportion between the means needed to cause death and those employed." The photograph depicting a depressed skull fracture was highly probative of the extent of Serret's injuries, the number of blows he sustained, and the manner and force with which these blows were delivered, as well as the gross disproportion between the means needed to cause death and those employed. The fact that Serret's heart stopped beating before the blows were inflicted does not negate the relevance of these blows in determining whether the murder was committed with extreme atrocity or cruelty because the defendant may not have known that Serret was dead when he repeatedly struck him. See Commonwealth v. Boateng, supra at 511-512 (evidence that defendant strangled and kicked baby boy after throwing him to floor relevant to theory of extreme atrocity or cruelty even if hitting floor alone caused death); Commonwealth v. Eugene, 438 Mass. 343, 354-355 (2003) (multiple stab wounds, including some inflicted after victim was already dead, gave jury "ample basis on which to conclude that the killing was committed with extreme atrocity or cruelty").
Where photographic evidence is relevant and properly authenticated, its admissibility is left to the discretion of the judge. See Commonwealth v. Obershaw, 435 Mass. 794, 803 (2002). "This court has almost never ruled that it was error to admit photographs of crime scenes and homicide victims." Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999). See Commonwealth v. Richmond, 371 Mass. 563, 566 (1976) (reversing murder conviction because of prejudice arising from photographs showing postmortem mutilation of victim's body by dog, but declaring that "we have never, so far as we know, upset a verdict on this type of error, and this opinion is not to be taken to indicate that we are likely to do so again"). There was no error here. The judge acted well within her discretion in deciding that the probative value of the photograph after it was substantially redacted to narrow the scope of the injuries it depicted outweighed the risk of unfair prejudice. Review under G.L. c. 278, § 33E. Having reviewed the entire record pursuant to our duty under G.L. c. 278, § 33E, we address one final issue. During the individual voir dire to empanel the jury, the judge appeared to use a procedure by which the Commonwealth and the defendant alternated who went first in exercising a peremptory challenge. However, only a few times did the judge verbally indicate which party was first, and generally one of the parties would either offer that it was content or exercise a challenge without prompting by the judge. The defendant did not object to this procedure at trial or on appeal.
The judge did not instruct the jury "that the photograph is to be used in analyzing the evidence and is not designed to elicit sympathy." Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999). However, such an instruction is not required, and here the defendant did not request it. See Commonwealth v. Allison, 434 Mass. 670, 684-685 n. 11 (2001).
In Commonwealth v. Vuthy Seng, 456 Mass. 490, 493-496 (2010), where a judge used essentially the same procedure in individual voir dire as here, we declared that "novel procedures, such as the one followed in this case, raise the possibility of prejudicial error." Id. at 494-495 n. 6. Yet, we concluded that, the use of the procedure in that case did not violate Rule 6 of the Rules of the Superior Court (LexisNexis 2008-2009), the Massachusetts Declaration of Rights, or the United States Constitution. Commonwealth v. Vuthy Seng, supra at 494-496. Likewise, here, the defendant was not denied the peremptory challenges to which he was procedurally entitled and thus "cannot complain that he was prejudiced by the voir dire procedure or that it raises a substantial likelihood of a miscarriage of justice." Id. at 496. See also Commonwealth v. Hinds, ante 83, 92-93 (2010).
At the beginning of the second day of jury empanelment, one of, the jurors who had been selected the day before was dismissed due to illness. The judge then said that each party would be allowed an additional peremptory challenge. However, when the defendant exercised his fifteenth peremptory challenge, the clerk agreed with him that he had only one, not two, challenges left. Because the defendant still received and used the sixteen peremptory challenges to which he was entitled under Mass. R. Crim. P. 20 (c) (1), 378 Mass. 889 (1979), this likely unintentional mistake on the part of the clerk was not error.
After our review of the record, we discern no error, considered alone or collectively, that provides a just basis to set aside or reduce the verdict of murder in the first degree.
Judgments affirmed.