Commonwealth v. Correa

By the Court (Kafker, Wolohojian & Sullivan, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

The defendant, George Correa, appeals from his conviction of breaking and entering a building in the daytime with the intent to commit a felony in violation of G. L. c. 266, § 18. The defendant argues on appeal that the trial judge erred in denying his motion for a required finding of not guilty on the charge because (1) there was insufficient evidence that his fingerprint was left during the commission of the crime, (2) the admission of testimony by fingerprint experts was erroneous and unfairly prejudicial, and (3) the judge erred in his instructions to the jury, a claim from which the defendant's appellate counsel disassociates herself. We affirm.

1. Sufficiency of the evidence. The defendant contends that the Commonwealth failed to prove beyond a reasonable doubt that his fingerprint was left on the window on the date of the breaking and entering. Our analysis begins "with the general principle that the presence of a fingerprint at the scene of the crime is not by itself a sufficient basis for submitting a case to a jury." Commonwealth v. Fazzino, 27 Mass. App. Ct. 485, 487 (1989). The Commonwealth "must couple the fingerprints with evidence which reasonably excludes the hypothesis that the fingerprints were impressed at a time other than when the crime was being committed." Ibid. We "review the evidence in the light most favorable to the Commonwealth, along with reasonable inferences therefrom." Commonwealth v. Morris, 422 Mass. 254, 256 (1996).

We conclude that the Commonwealth properly coupled the fingerprint evidence with other evidence which "reasonably excludes the hypothesis that the fingerprints were impressed at a time other than when the crime was being committed." Commonwealth v. Ye, 52 Mass. App. Ct. 390, 393 (2001).

Based on testimony regarding the placement of the fingerprint, the damage to the window, and the isolation of the patio, the jury were permitted to infer that the defendant cut the screen and passed the threshold of the screen in order to touch the window on the date of the crime. See Commonwealth v. LeClaire, 28 Mass. App. Ct. 932, 933 (1990); Commonwealth v. Baptista, 32 Mass. App. Ct. 910, 911 (1992). The police recovered one latent fingerprint matching the defendant's on the exterior wooden frame of a screened window in the complainant's apartment. The complainant testified that prior to leaving her apartment on the date of the incident, the front door had been locked, the windows had been left slightly open with child-proof locks securely intact, and the defendant had no authority to be at the apartment. Upon return, the window's exterior screen had been removed and placed in the bushes. The window's locks had also been sheared off.

The window was also isolated by the complainant's private patio and the apartment building's surroundings. See Ye, 52 Mass. App. Ct. at 393. The window is located at the rear of the apartment building, enclosed by a four to five foot tall railing in the complainant's private patio and faces a secluded wooded area. Finally, the defendant was not permitted to enter the home. See ibid. See also LeClaire, 28 Mass. App. Ct. at 933.

2. Fingerprint expert testimony. The defendant also contends that he was prejudiced by the Commonwealth's fingerprint experts' repeated use of the terms "individualized" and "verified" during their testimony. At trial, State police Troopers Jay McCarthy and Matthew Hess used the term "individualized" when they compared the latent fingerprint to the defendant's fingerprint. State police Lieutenant Mary Ritchie used the term "individualized" and "verified" when explaining the methodology in her administrative and technical review of this case.

This asserted error is preserved because the defendant raised this claim at trial during the testimony of all three experts. See Commonwealth v. Gambora, 457 Mass. 715, 723-724 (2010). "Accordingly, we review to determine whether any error was nonprejudicial in the sense that we are sure that the error did not influence the jury, or had but very slight effect." Ibid. (internal quotation marks and citations omitted).

The Supreme Judicial Court has set forth the parameters of expert testimony regarding fingerprint analysis. Experts are permitted to opine "that a latent print matches, or is 'individualized' to, a known print." Id. at 729 n.22. See Commonwealth v. Joyner, 467 Mass. 176, 183 n.9 (2014). However, experts are not permitted to express such a conclusion as a "matter of fact or absolute certainty." See id. at 184 n.11.

In the present case, none of the expert witnesses ascribed such meaning to the term "individualized" or "verified." Our review of the trial testimony reflects that all three experts expressed their opinion that the latent fingerprint was a match to the defendant's fingerprint with a "reasonable degree of certainty in the field of fingerprint examination." See Gambora, 457 Mass. at 727; Joyner, 467 Mass. at 181-182. Moreover, during cross-examination, Trooper McCarthy acknowledged the role of "human interpretation" in fingerprint analysis, the potential for "biases" and "human error," and instances of prior fingerprint identifications that were proven to have been wrong. See Gambora, 457 Mass. at 728 n.18. Thus, admission of testimony from the Commonwealth's three expert witnesses was not error.

3. Moffett argument. The defendant raises an additional argument from which counsel disassociates herself in accordance with the procedure established in Commonwealth v. Moffett, 383 Mass. 201, 208 (1981). The defendant contends that the trial judge improperly instructed the jury on the element of intent to commit a felony. For substantially the reasons stated in the Commonwealth's brief, at pages 29-31, this argument is without merit.

Conclusion. For the reasons articulated above, we conclude that (1) the fingerprint evidence was sufficient, (2) testimony by the fingerprint experts was admissible, and (3) the jury instruction was proper.

Judgment affirmed.

By the Court (Kafker, Wolohojian & Sullivan, JJ.),

Clerk Entered: April 1, 2015.