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SJC-09656
COMMONWEALTH vs. STEVEN CARUSO.
Middlesex. September 9, 2016. - January 13, 2017.
Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ.
Homicide. Constitutional Law, Confrontation of witnesses,
Assistance of counsel. Evidence, Expert opinion,
Information stored on computer, Of agency, Prior consistent
statement, Testimony at prior proceeding, Videotape,
Impeachment of credibility. Agency, What constitutes.
Witness, Expert, Impeachment. Practice, Criminal, Capital
case, Confrontation of witnesses, Assistance of counsel.
Indictment found and returned in the Superior Court
Department on March 23, 2000.
A pretrial motion to suppress evidence was heard by Charles
M. Grabau, J., and the case was tried before him.
David A.F. Lewis for the defendant.
Jessica Langsam, Assistant District Attorney (Elizabeth
Dunigan, Assistant District Attorney, also present) for the
Commonwealth.
LOWY, J. On January 20, 2000, Sandra Berfield, the victim,
received a package containing a pipe bomb, which exploded when
she opened it, blowing her body asunder and killing her
2
instantly. A jury in the Superior Court found the defendant,
Steven Caruso, guilty of murder in the first degree on theories
of deliberate premeditation and extreme atrocity and cruelty.
The defendant appeals from his conviction, claiming that
(1) the admission of testimony by a jailhouse informant violated
the defendant's confrontation rights; (2) a ballistics expert
improperly testified to a report prepared by an unavailable
expert; (3) the testimony of the Commonwealth's wire expert
should have been excluded; (4) the Commonwealth failed to
establish adequately the reliability of computer forensics
evidence; and (5) the admission of the victim's prior recorded
testimony and limitations on the defendant's ability to attack
its veracity violated the defendant's confrontation rights. We
conclude that no reversible error occurred, and we affirm the
jury's verdict.
Background. We recite the facts the jury could have
reasonably found in the light most favorable to the
Commonwealth, reserving certain details for our analysis of the
issues.
1. Defendant's relationship with victim. The defendant
was a long-time regular customer at a restaurant in Medford
where the victim worked as a server. The defendant often
patronized the restaurant more than once daily, and typically
requested a particular server. When the defendant became angry
3
after a long wait for his previously preferred server, the
victim became the defendant's server of choice. The defendant
and the victim established an amicable relationship.
The defendant was closely connected with many events taking
place at the restaurant and with many of the people who worked
there. The defendant, a handyman by trade, did repair work at
the restaurant and in the homes of its employees. He also
attended some social events organized for employees of the
restaurant.
Eventually, the relationship between the defendant and the
victim took a negative turn. The defendant asked the victim on
a date. The victim declined, and the defendant's demeanor
changed. Although the defendant had a reputation among the
restaurant's staff for staring at people, he began to stare
exclusively at the victim and in a hateful manner.
Tension between the defendant and the victim escalated. On
two occasions, the defendant poured battery acid into the
gasoline tank of the victim's motor vehicle, for which the
defendant was convicted of destroying the victim's property. He
was sentenced to eighteen months in the house of correction,
with six months to serve and the balance suspended for two
years. He also was ordered to make monthly restitution
payments. A payment was due in January, 2000. The defendant
4
also was charged with, but not convicted of, slashing the
victim's tires.
In addition, the victim had obtained a restraining order
against the defendant after the first battery acid incident.
After the second battery acid incident, the victim returned to
court regarding the restraining order violation. At the end of
the ensuing proceeding, the judge told the defendant the
restraining order was still in full effect. Nevertheless,
immediately after the hearing, the defendant approached the
victim, coming within about two feet of her in a nearby parking
lot. A few months later, the defendant drove by the restaurant
again.
2. Victim's death. On the morning of Thursday, January
20, 2000, at approximately 12:30 P.M., the victim was instantly
killed in her apartment when she opened a package containing a
pipe bomb. The victim lived on the second level of an owner-
occupied home in Everett.
The defendant left the package containing the pipe bomb on
the victim's porch just after 9:30 A.M.1 At around 12:30 P.M.,
1
The defendant rejects the timeline of events presented by
the Commonwealth and argues that he could not have delivered the
package. However, in determining what facts a reasonable juror
could have found, we view the facts in the light most favorable
to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979). The Commonwealth established that the defendant
could have delivered the package shortly after 9:30 A.M. before
5
the homeowner retrieved the mail and, on her way back into her
apartment, examined the package containing the bomb. She saw
the name "Passanisi" with a Malden return address. Her husband
heard the victim go down to the basement and then return to her
apartment. Shortly thereafter, they felt the explosion.
The homeowner and her husband responded with alacrity.
They went to the second-floor apartment and opened the door.
They saw smoke, smelled an odor, and saw the victim's body on
the floor. They telephoned 911.
Police arrived at the scene promptly. A responding officer
identified the odor as similar to gunpowder. From the doorway
to the apartment, the officer saw human tissue and blood spatter
on the wall, floors, and ceiling. He called to the victim,
whose body he saw at the end of a hallway. There was no
response. The cause of death was later determined to be massive
blast injuries.
Based on the defendant's troubled history with the victim,
the police promptly sought to question him that same day. The
defendant provided police with two inconsistent descriptions of
his whereabouts on earlier that morning. First, he told the
police he had gone from his home to a library around 10 A.M.,
he was identified by a witness at a café, approximately ten
minutes away from the victim's home, at 10 A.M.
6
then to a café. Later, he told the police that he had gone to
the café first, followed by the library.
Later that same evening, the police returned to the
defendant's home to secure it, pending the issuance of a
warrant, which was subsequently executed. Again, the defendant
voluntarily answered the questions policed asked. He knew that
the police were there "about that girl that got blown up in
Everett," who had "caused [the defendant] a lot of problems."
He also stated that he did not like the victim anymore. When
asked what he thought should happen to a person who committed
such a crime, the defendant responded, "Well, you don't know all
the facts."
3. Search of crime scene and defendant's home. From the
crime scene, police recovered, among other things, battery
parts, pieces of pipe, metal fragments with human tissue or
blood on them, pieces of copper, and wires. After the police
conducted their search, a private company cleaned the premises
and delivered additional items in bags to the fire marshal.
In executing the warrant at the defendant's home, the
police discovered a number of items that were introduced as
evidence at trial. The police found drill bits, an electronics
wiring tool kit, batteries, copper wire, pieces of pipe, and
ammunition. The wire, pipe fragments, batteries, and gunpowder
7
obtained at the defendant's home were consistent with similar
materials found at the scene of the explosion.
In the defendant's bedroom, police recovered various
documents containing detailed information about the victim, her
family and past boy friends, including documents with the
victim's date of birth, Social Security number, home address and
place of employment. Police also recovered correspondence
between a former boy friend and the victim, and a document
containing a postal service code referring to the mail route to
the victim's home. Shortly after the search, the defendant's
sister informed police that she had discovered a booklet
entitled, "High-Low Boom Explosives," in the defendant's room.
During a forensic investigation of the defendant's
computer, police discovered information related to the victim
and her family that had been accessed by the defendant in the
days leading up to her death, including that the defendant had
used an astrology program and a family tree program containing
the victim's personal information, such as her telephone number
and former addresses. Through the family tree program, the
police accessed a mailing label containing the name "Sebastiano
Passanisi," the victim's brother-in-law, with a Malden address,
consistent with the return address on the package containing the
bomb. Neither the victim's sister nor her brother-in-law had
8
lived in Malden for approximately thirty years. Police found no
information related to any other family in the program.
Discussion. 1. Testimony of jailhouse informant.
Following his arrest, the defendant encountered Michael A.
Dubis, another prisoner, in a holding cell at a hospital.2 Dubis
recognized the defendant's name and face from the newspaper and
asked him questions about the victim's death. For approximately
ninety minutes, Dubis talked to the defendant, intending to find
out what had happened. Dubis sought to win the defendant's
trust and asked questions to elicit information he could pass on
to law enforcement.
The defendant made numerous incriminating statements to
Dubis. The defendant told Dubis that he had learned about
making bombs from a friend, that he had used batteries and a
pipe, and that the package would only explode when it was opened
due to a "basic separation device." The defendant also said
that he "got [the bomb] there," that he used the return address
of the victim's sister on the package, and that he knew the bomb
would kill anyone who opened it. In addition, the defendant
described his relationship with the victim, including the
incidents involving damage to the victim's vehicle and that the
2
Again, disregarding testimony put forth by the
Commonwealth's witnesses, the defendant argues that he and Dubis
never met and that the conversation never occurred. The jury
were entitled to credit the testimony that the meeting took
place. See Latimore, 378 Mass. at 676-677.
9
victim had a video recording of him "messing with" her vehicle.
The defendant said that the victim would not go out with him and
that he was mad at her and called the victim a "bitch."
Dubis relayed this information to a State trooper, Sergeant
James Plath, to whom Dubis had previously provided information.
Plath informed law enforcement officials involved in the
defendant's case. Following a motion to suppress, which was
denied, Dubis testified to the defendant's statements at trial.
The defendant argues that the motion judge, who also was
the trial judge, erred in denying the motion to suppress his
statements to Dubis, and therefore Dubis's testimony was
improperly admitted at trial; the defendant also argues that the
judge erred at trial by allowing the Commonwealth to use prior
consistent statements to rehabilitate Dubis after cross-
examination. We reject each argument.
a. Motion to suppress informant's testimony. In his
pretrial motion to suppress Dubis's testimony, the defendant
argued that Dubis was a government agent who questioned the
defendant in violation of his right to counsel -- which had
attached at his arraignment -- in violation of the Sixth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights.
"The court accepts the findings of fact from a suppression
hearing absent clear error," but independently applies
10
constitutional principles to determine whether an informant was
a government agent. Commonwealth v. Murphy, 448 Mass. 452, 459
(2007), citing Commonwealth v. Harmon, 410 Mass. 425, 429
(1991). We conclude that the judge properly denied the motion
to suppress because Dubis was not the Commonwealth's agent when
he spoke to the defendant. See Commonwealth v. Tevlin, 433
Mass. 305, 320 (2001); Harmon, supra at 428-429.
In a written decision, the judge made the following
findings related to Dubis's previous involvement as a government
informant. Dubis first acted as a government informant in 1988,
while serving a sentence in a house of correction. He also
testified for the Commonwealth in two murder trials. See
Commonwealth v. Tevlin, 433 Mass. 305 (2001); Commonwealth v.
Bennett, 424 Mass. 64 (1997). Following Dubis's testimony in
one of the cases, his attorney asked Plath for assistance in
securing house of correction sentences for Dubis, rather than
State prison sentences, out of concern for Dubis's safety.
Plath agreed to speak with law enforcement responsible for the
relevant prosecutions. In a separate matter, when Dubis was not
in jail, Dubis provided information to Plath and received
twenty-five dollars as reimbursement for gasoline.
The judge also found that no one, including Plath, promised
Dubis any assistance in return for information he provided.
Between his 1998 sentencing and his testimony at the motion to
11
suppress hearing in 2003, Dubis sought parole three times.
Dubis was denied parole on each occasion, and no law enforcement
official spoke on his behalf at any parole hearing.
The Sixth Amendment and art. 123 prohibit the Commonwealth
from "deliberately elicit[ing]" incriminating statements from an
individual who has been charged with a crime, without the
individual's counsel present. Tevlin, 433 Mass. at 320, quoting
United States v. Massiah, 377 U.S. 201, 206 (1964). In addition
to direct questioning, the government deliberately elicits
statements by "intentionally creating a situation likely to
induce" the charged individual to make incriminating statements
in the absence of counsel. United States v. Henry, 447 U.S.
264, 274 (1980); Harmon, 410 Mass. at 428, citing Massiah, supra
at 206. There is no dispute that Dubis intentionally elicited
incriminating statements from the defendant to pass on to law
3
We have recognized that the art. 12 may provide broader
protection of the right to counsel than the Sixth Amendment in
circumstances in which "the informant has an articulated
agreement with the government that contains a specific benefit
or promise." Murphy, 448 Mass. at 467. This requirement
ensures that the Commonwealth observes its "affirmative
obligation not to act in a manner that circumvents and thereby
dilutes the protection afforded by the right to counsel." Id.,
quoting Maine v. Moulton, 474 U.S. 159, 171 (1985). However,
the court has not yet had to consider circumstances involving a
jailhouse informant in which art. 12 provides broader protection
than the Sixth Amendment. See id. at 467-468 (informant was
agent for purposes of both Sixth Amendment and art. 12). On the
facts of this case, we decline to extend the protections of art.
12 further.
12
enforcement for his own advantage. The only question is whether
Dubis was a government agent.
"The United States Supreme Court has not clearly defined
the point at which agency arises." Murphy, 448 Mass. at 460.
Yet, at a minimum, there must be some arrangement between the
Commonwealth and the informant before the informant's actions
can be attributed to the Commonwealth. See id. at 463-464, 467
(articulated agreement between informant and Commonwealth
containing specific benefit creates agency relationship
[citation omitted]). An inmate's "unencouraged hope to curry
favor" by informing does not establish an agency relationship,
even if the informant subsequently receives a benefit (citation
omitted). Harmon, 410 Mass. at 428. See Commonwealth v.
Rancourt, 399 Mass. 269, 274 (1987). See also Moulton, 474 U.S.
at 176. Nor does the fact that an informant provided
information in the past establish an agency relationship.
Rancourt, supra at 272, 274.
No agency relationship exists in the absence of a prior
arrangement between the Commonwealth and the informant. For
example, no agency relationship forms when the Commonwealth does
not promise a benefit to an informant, even where -- as in this
case -- the informant has provided information to a particular
police officer on multiple prior occasions. Harmon, 410 Mass.
at 429-430 By contrast, in the Murphy case, an informant was a
13
government agent, because an assistant United States attorney
offered to file a motion to reduce the informant's sentence "if
he gave 'substantial assistance' to the government." Murphy,
448 Mass. at 465, 467-468. In the Henry case, the government
paid an informant on a contingency fee basis for information,
encouraging the informant to elicit incriminating information
from other inmates. Henry, 447 U.S. at 270-271, 274. Even
though the government instructed the informant not to question
the defendant in the Henry case, the Supreme Court concluded
that keeping the informant near Henry in prison and utilizing
the contingency fee arrangement for information, tended to show
that the government "intentionally creat[ed] a situation likely
to induce Henry to make incriminating statements." Id. at 266,
270-271, 274. See United States v. Brink, 39 F.3d 419, 423-424
(3d Cir. 1994) (intentional placement of known informant in cell
may constitute deliberate effort to elicit incriminating
information).
Based on the facts established at the motion to suppress
hearing, Dubis was not an agent of the Commonwealth. No
evidence suggests that the Commonwealth put the defendant and
Dubis in the same cell in order to elicit information from the
defendant. Nor does the evidence show that any law enforcement
official involved in the defendant's case knew that Dubis and
the defendant would be placed in the same cell or that their
14
encounter was the result of anything but happenstance. That
Dubis had provided information to a particular officer on more
than one occasion does not demonstrate that he was a government
agent. Harmon, 410 Mass. at 429. Dubis is unlike the informant
in the Harmon case, who had reached out to the officer after
making first contact with the defendant. Id. at 429. The
defendant in the Harmon case confessed his guilt to the
informant only after the officer told the informant to "keep his
ears open." Id. We concluded that the informant in the Harmon
case was not a government agent, and the evidence suggesting
Dubis was a government agent is even weaker. See id. at 429-
430. Although Plath similarly told Dubis to "keep his ears
open," all of Dubis's contact with law enforcement regarding the
defendant's case took place after Dubis's sole conversation with
the defendant.
Dubis's conduct as an informant is also unlike the
informants in Murphy, 448 Mass. at 457, and Henry, 447 U.S. at
271, 274, because each of them had in place, before eliciting
incriminating information, an articulated agreement with the
government, pursuant to which the informants received specific
benefits.4 As referenced above, the facts in this case do not
4
The defendant argues that Dubis is receiving a continuing
benefit by being placed in a house of correction, rather than a
State prison. However, Dubis secured this arrangement nearly
two years before Dubis's encounter with the defendant. We
15
even suggest that the Commonwealth planned for Dubis and the
defendant to share a cell. Cf. Henry, 447 U.S. at 274; Brink,
39 F.3d at 423-424.
The judge properly denied the defendant's motion to
suppress. The record does not show the Commonwealth engaged in
any conduct in contravention of its "affirmative obligation not
to act in a manner that circumvents and thereby dilutes the
protection afforded by the right to counsel." Murphy, 448 Mass.
at 467, quoting Moulton, 474 U.S. at 171.
b. Rehabilitation of informant through prior consistent
statements. The defendant also claims that it was error to
permit the Commonwealth to rehabilitate Dubis at trial using
prior consistent statements, where the trial judge failed to
make an explicit finding that Dubis had made the prior
consistent statements before his motive to fabricate arose. We
disagree.
considered whether Dubis was an agent of the government in the
Tevlin case, and we concluded that "the evidence was that
[Dubis] was moved for safety reasons and that it is common
practice to move inmates to prevent retaliation against those
who provide information." Tevlin, 433 Mass. at 321. The trial
judge in this case made similar findings. Moving an informant
to mitigate dangers arising from the very fact that he provided
information is not the type of benefit with which the Sixth
Amendment and art. 12 are concerned. Cf. Henry, 447 U.S. at
270-271; Murphy, 448 Mass. at 457. Because no evidence suggests
an intentional plan by the government to put Dubis and the
defendant together, any subsequent benefit Dubis received is not
sufficient independently to establish an agency relationship.
See Rancourt, 399 Mass. at 274.
16
Prior consistent statements are generally inadmissible.
Mass. G. Evid. § 613(b)(1) (2016). However, an exception exists
where a trial judge makes a preliminary finding (1) that the
witness's in-court testimony is claimed to be the result of a
recent fabrication or contrivance, improper influence or motive,
or bias; and (2) that the prior consistent statement was made
before the witness had a motive to fabricate, before the
improper influence or motive arose, or before the occurrence of
the event indicating a bias. Commonwealth v. Kater, 409 Mass.
433, 448 (1991), S.C., 412 Mass. 800 (1992) and 432 Mass. 404
(2000).5 Although such a finding is required and it should be
made on the record, outside the presence of the jury, here such
a finding is implicit in the judge's decision. See Commonwealth
v. Gaulden, 383 Mass. 543, 547 (1981) (even without explicit
findings, record supported trial judge's decision to permit
admission of confession); Commonwealth v. Brady, 380 Mass. 44,
5
Recently, we have articulated that the use of prior
consistent statements to rehabilitate a witness is permissible
when a court finds that a party has claimed that a witness's in-
court testimony is the result of recent contrivance or bias, so
long as the prior consistent statement was made before the
witness had a motive to fabricate or the occurrence of an event
indicating a bias. See Mass. G. Evid. § 613(b)(2) (2016). Our
formulation in this case departs only slightly from our more
recent articulations, but more precisely reflects the underlying
purposes for which prior consistent statements may be used for
rehabilitative purposes. See, e.g., Commonwealth v. Nova, 449
Mass. 84, 93 (2007); Commonwealth v. Brookins, 416 Mass. 97,
102-103 (1993); Kater, 409 Mass. at 448; Commonwealth v.
Zukoski, 370 Mass. 23, 26-27 (1976). See also Mass. G. Evid.
613(b)(2).
17
52 (1980) ("Failure to make explicit findings does not in and of
itself constitute reversible error" [citation omitted]). In
addition, trial judges have broad discretion to determine
whether circumstances warrant the admission of prior consistent
statements to rebut a claim of a recent fabrication or
contrivance, improper influence or motive, or bias. See
Commonwealth v. Rivera, 430 Mass. 91, 100 (1999); Commonwealth
v. Zukoski, 370 Mass. 23, 27 (1976).
During the defendant's cross-examination of Dubis, defense
counsel used prior inconsistent statements from Dubis's
testimony at the motion to suppress hearing. Defense counsel
elicited that, until the week of the trial, Dubis had not seen
the report generated by his initial interview with police
regarding the defendant. Defense counsel also suggested that
Dubis was expecting assistance at upcoming parole hearings and
that Dubis intended to ask the prosecution in this case to
assist him with obtaining release from prison early and being
placed on a bracelet. Defense counsel then asked Dubis, "So all
of a sudden you were shown what they want you to say, isn't that
right?" This question suggested a recent contrivance, improper
influence or bias, and the trial judge permitted the
Commonwealth to rehabilitate Dubis using his initial statement.
The defendant argues that the rehabilitation was improper
because Dubis had the same motive to fabricate (i.e., to
18
ingratiate himself with law enforcement) at the time he made his
prior statement. Although that may be true, defense counsel
indicated a particular event influenced Dubis's testimony by
alleging the Commonwealth showed Dubis "what they want[ed] [him]
to say" in the week leading up to trial. The Commonwealth was
entitled to rebut that suggestion. See Rivera, 430 Mass. at
100; Zukoski, 370 Mass. at 27. The pertinent question is thus
whether Dubis's prior statement predates the specific event
allegedly giving rise to the event that had an impact on Dubis's
testimony at trial. Mass. G. Evid. § 613 (b) (2).
The record shows that Dubis's prior consistent statements
predated the time at which the defendant implied the
Commonwealth told Dubis what to say. Dubis made his original
statements to the police on June 29, 2000. Dubis did not
testify until July 31, 2003. The prior consistent statements
were admissible to corroborate Dubis's testimony, and the trial
judge provided a limiting instruction during the final charge.
2. Propriety of substitute testimony for unavailable
witness. At trial, State Trooper Michael R. Arnold testified in
place of Captain John Busa, who was unavailable due to illness,
regarding ammunition seized at the defendant's home. Busa had
seized ammunition from the defendant's home and emptied the
gunpowder into bags, which he delivered to a State police
19
chemist. Busa also concluded that the ammunition was "reload"6
ammunition. Arnold was not present when police retrieved the
ammunition or during Busa's examination, but Arnold had an
opportunity to examine the evidence before testifying. The
defendant objected at trial to Arnold's substitution for Busa
and argues on appeal that his inability to cross-examine Busa
violated his confrontation rights.7 There was no reversible
error.
Criminal defendants in Massachusetts must have a
"meaningful opportunity" to cross-examine an expert regarding
his or her opinion. Commonwealth v. Tassone, 468 Mass. 391, 399
(2014). An expert's opinion may be based on personal knowledge;
"evidence already in the record [or which the parties represent]
6
"Reload" ammunition is ammunition that has been
repackaged, usually by putting a new projectile, new gunpowder,
and a new priming compound into a previously fired cartridge
casing. An individual can repackage the ammunition him or
herself, or purchase reload ammunition from a manufacturer.
7
For the first time on appeal, the defendant argues that
the introduction of evidence collected from the crime scene by a
private company also violated his confrontation rights.
However, the introduction of physical items does not constitute
hearsay, and therefore does not implicate the defendant's
confrontation rights. See Crawford v. Washington, 541 U.S. 36,
53 (2004). Further, although there was no testimony to
establish a full chain of custody, that goes to the weight of
the evidence, not its admissibility. Commonwealth v. Hogg, 365
Mass. 290, 294-295 (1974). The jury were aware of weaknesses in
the chain of custody and the Commonwealth's expert did not rely
on the company's evidence to conclude that the items from the
crime scene were consistent with the items found in the
defendant's home.
20
will be presented during the course of the proceedings, which
facts may be assumed to be true in questions put to the
witness"; and on "facts or data not in evidence if the facts or
data are independently admissible and are a permissible basis
for an expert to consider in formulating an opinion." Mass. G.
Evid. § 703 (2016). See Commonwealth v. Jones, 472 Mass. 707,
713 (2015). The prosecution may not elicit the facts underlying
an expert's opinion on direct examination, if the opinion is
based on information not admitted in evidence. Tassone, 468
Mass. at 399. Because the defendant objected at trial to
Arnold's testimony, we must be "satisfied beyond a reasonable
doubt that [any] tainted evidence did not have an effect on the
jury and did not contribute to the jury's verdicts."
Commonwealth v. Tyree, 455 Mass. 676, 701 (2010).
Arnold's testimony that the ammunition was reload was
admissible. It was relevant to support the Commonwealth's
theory that the defendant used gunpowder from ammunition to
construct the pipe bomb. Arnold permissibly based his opinion
on his own observation of three boxes of ammunition. Arnold
concluded the ammunition was reload because otherwise identical
projectiles had branding marks from different manufacturers,
indicating that the ammunition had been repackaged. The
defendant had the opportunity to -- and did -- cross-examine the
21
witness regarding the formulation of his opinion. Tassone, 468
Mass. at 399.8
3. Expert testimony concerning electrical wire. Based on
items seized from the defendant's home, the Commonwealth sought
the expertise of Dennis Toto. Toto was a licensed electrician,
an electrical consultant to the State fire marshal, and formerly
the chief wire inspector in Revere. He conferred with a State
police chemist, who showed him wire with white insulation and a
red stripe, retrieved from the crime scene, and asked for Toto's
assistance to locate similar wire.
At trial, Toto testified to three primary opinions on
direct examination: (1) the wire he examined from the crime
scene was not fit for use in household wiring; (2) the wire
recovered from the crime scene would not have come from a coffee
maker that was destroyed in the explosion; and (3) he located
wire that appeared to be "the exact same" or "extremely similar"
8
The remainder of Arnold's testimony, regarding chain of
custody and the contents of Busa's report, was either cumulative
or not material. See Commonwealth v. Dagraca, 447 Mass. 546,
552-553 (2006) (inadmissible evidence may not be prejudicial
when cumulative of other evidence). Arnold should not have been
permitted to testify to Busa's report. Mass. G. Evid. § 703.
However, the error was harmless beyond a reasonable doubt, where
the critical testimony was from the State police chemist, who
stated that the gunpowder retrieved from the crime scene was
consistent with gunpowder seized from the defendant's home. Any
weakness in the chain of custody speaks only to the weight of
the evidence, not its admissibility. See Hogg, 365 Mass. at
294-295. Defense counsel adequately exposed Arnold's lack of
personal knowledge regarding chain of custody on cross-
examination.
22
at a small electronics store, which he subsequently sent to the
chemist.9 The defendant now argues that Toto's underlying
methodology was unreliable.
"The trial judge has a significant function to carry out in
deciding on the admissibility of a scientific expert's opinion."
Commonwealth v. Lanigan, 419 Mass. 15, 25 (1994). The expert
must "have a reliable basis in the knowledge and experience of
his discipline." Id., citing Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 592 (1993). If the trial judge determines
that "the process or theory underlying a scientific expert's
opinion lacks reliability, that opinion should not reach the
trier of fact." Id. at 26. In Canavan's Case, 432 Mass. 304,
313-314 (2000), an opinion published two days after the jury
rendered their verdict in this case, we held that the same
gatekeeping determination applies where an expert's testimony is
based on clinical experience and personal observation, rather
9
The defendant also argues that Toto's opinion -- regarding
the rarity of that type of white wire with a red stripe -- was
unreliable, and should have been excluded. This argument is
misguided for two reasons. First, defense counsel elicited
Toto's opinion regarding the so-called "rarity" of the wire on
cross-examination, in an effort to undermine the credibility of
Toto's investigation. See Commonwealth v. Perez, 405 Mass. 339,
344 (1989) (defendant "cannot now complain of [the] prejudicial
effect" of testimony elicited by defendant on cross-examination
[citation omitted]). Second, the defendant misconstrues the
true nature of Toto's opinion. Although not responsive to the
question asked, Toto testified that the wire at issue was not
widely available for purchase in electronics stores, not that
the wire was rarely used in appliances.
23
than on scientific knowledge. Cf. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999) (under Federal rules of evidence,
Daubert analysis applies to expert testimony based on
"technical" and "other specialized" knowledge).
For the first time on appeal, the defendant argues that the
methodology underlying Toto's opinions was unreliable. In order
to preserve an objection to an expert's methodology, a defendant
must file a pretrial motion stating the grounds for its
objection. Commonwealth v. Sparks, 433 Mass. 654, 659-660
(2001). Because the defendant did not seek a Lanigan hearing,
we have no record upon which to determine that the methodology
did not satisfy the Daubert/Lanigan gatekeeper reliability
requirements.
Even if we were able to discern that Toto's methodology was
not sufficiently reliable, his testimony created no substantial
likelihood of a miscarriage of justice. First, Toto adequately
explained physical differences between household and appliance
wiring to the jury. Commonwealth v. Pytou Heang, 458 Mass. 827,
848 n.30 (2001) (role of expert to help jury determine facts).
Second, the jury could have inferred that the defendant was the
source of the wire used in the bomb, because the State police
chemist testified that the wire from the crime scene was
consistent with wire from the defendant's home. Third, the jury
learned from the chemist's direct testimony and extensive and
24
effective cross-examination that Toto's wire from the
electronics store was not consistent with the wire used in the
bomb.
4. Evidence derived from searches of defendant's computer.
Detective Lieutenant John McLean of the Medford police
department conducted two searches of the defendant's computer.
As a result, the Commonwealth introduced two types of evidence,
the admission of which the defendant argues constitutes
reversible error: (1) dates upon which certain files on the
computer were last accessed; and (2) still images of files
displayed on the computer monitor (screen shots). No reversible
error occurred.
a. Last access dates. McLean testified to a number of
dates on which files on the defendant's computer were accessed
and on which electronic mail messages were transmitted. In
particular, the defendant objects to the introduction of the
last access date of an astrology program on the defendant's
computer. When McLean launched the program, it contained the
victim's horoscope information. McLean testified that the
information was last accessed on January 19, 2000 -- the day
before the victim's death. McLean did not enter the victim's
name into the program, nor did his investigation alter the
access date. The Commonwealth invoked this access date in its
25
closing argument to suggest that the defendant was obsessed with
the victim.
The defendant argues the last access dates should not have
been admitted in evidence because the Commonwealth did not
establish the accuracy or reliability of the computer's time-
keeping function. There was no error.
Jurors may rely on their own common sense and life
experience in their role as fact finders. Even in the year
2000, people commonly and reasonably relied on the accuracy of
time-keeping mechanisms on computers, cellular telephones, and
other electronic devices. Evidence that a time stamp indicates
a particular time is a sufficient basis for a jury to conclude
that the relevant activity took place at that time, particularly
when there is no evidence to the contrary in the record.10
b. Screen shots. McLean testified regarding a number of
screen shots taken from the defendant's computer. The defendant
objects to the admission of screen shots from the astrology
program and the family tree program.
When McLean opened the astrology program, the default
screen showed the victim's name at the top. McLean did not
10
The lack of a meaningful, limiting principle is another
basis to reject the defendant's reasoning. Must a Swiss
watchmaker have to testify every time the owner of a Swiss watch
relies on his watch to testify as to the time of day? Must the
city planner be called to verify a witness's reference to a
street sign as a basis for testifying what street occupies a
particular location? To ask the question is to answer it.
26
enter the victim's name. He explained that the default screen
was determined by data and settings for the program contained in
other files on the computer. Without entering any other
information, McLean scrolled down through the menu choices that
the program displayed, which showed the victim's name, birth
horoscope, birth date, time of birth, and birth location.
McLean then chose "select" on the victim's name, causing the
program to display additional information.
McLean similarly explained that the family tree program
referenced data contained in other files in the computer,
including files labeled using the victim's last name. When
McLean opened the family tree program, it defaulted to the
victim's information based on the computer's existing settings.
The Commonwealth introduced several screen shots from the
program that displayed only when McLean himself made certain
selections within the program. McLean could not determine
whether the defendant had made the same selections.
The defendant objects to the admission of the screen shots
that only displayed following McLean's selections in each of the
programs. The defendant argues the screen shots were
inadmissible because the Commonwealth failed to demonstrate (1)
the reliability of the software; and (2) that the defendant used
the software in the manner represented by the Commonwealth.
27
No reversible error occurred. We reject the defendant's
first argument and partially reject the second. McLean's
testimony sufficiently demonstrated how the software worked.
However, all but one of the screen shots were inadmissible
because the Commonwealth could not demonstrate that the
defendant actually accessed the same information. One screen
shot -- the only one directly inculpating the defendant -- was
properly admitted. The remainder were either cumulative or
innocuous and did not prejudice the defendant.
The Commonwealth established the reliability of the
programs. See Commonwealth v. Torres, 453 Mass. 722, 723, 737
(2009). McLean carefully explained how each of the programs
worked, as relevant to this case. He stated how the programs
incorporate settings and data stored in other files on the
computer, and that the settings and data on the defendant's
computer caused the programs to display the victim's information
by default. The defendant presented no evidence to the
contrary, and the jury were entitled to credit McLean's
explanation. Commonwealth v. James, 424 Mass. 770, 785 (1997).
The erroneously admitted screen shots did not prejudice the
defendant. In Commonwealth v. Williams, 456 Mass. 857, 868-869
(2010), we found an electronic message inadmissible when the
proponent provided no foundation identifying who sent the
message, even though foundational testimony established that the
28
sender must have had access to a particular Web page.
Similarly, McLean did not know whether the defendant had ever
accessed the information depicted in the screen shots. Without
evidence that the defendant had accessed the screen shots, they
had no tendency to affect the probability of any material fact.
See Mass. G. Evid. § 401 (2016).
However, most of the improperly admitted screen shots
contained only general information regarding the victim and her
family that was cumulative of much more compelling evidence from
a multiplicity of sources that the defendant was obsessed with
the victim. Given the wealth of other admissible evidence on
that point, the screen shots admitted in error were cumulative.
See Commonwealth v. Esteves, 429 Mass. 636, 640 (1999)
(inadmissible hearsay may not be prejudicial where cumulative);
Commonwealth v. Davis, 54 Mass. App. Ct. 756, 765 (2002) (same).
The only screen shot that was properly admitted depicted a
mailing label from the family tree program. The label contained
the name "Sebastiano Passanisi" and a Malden address. The
victim's downstairs neighbor testified the mailing label on the
package contained the name "Lois Passanisi" (Sebastiano's wife
and the victim's sister) with a Malden address. Lois Passanisi
had not lived in Malden in the roughly thirty years prior to the
victim's death. Even when she did live in Malden, her last name
was not Passanisi, and the home where she resided was not in her
29
name. Nor had Sebastiano Passanisi lived in Malden at any point
in the preceding thirty years. The defendant also told Dubis
that he had used the address of the victim's sister as the
return address on the package. Even though McLean could not
testify that the defendant had seen the mailing label, the jury
reasonably could have inferred that the source of the inaccurate
information on the package containing the bomb was the family
tree program on the defendant's computer. Cf. Williams, 456
Mass. at 868-869.
5. Use of victim's testimony from prior proceedings. At
trial, the Commonwealth introduced in evidence transcripts of
the victim's testimony from earlier proceedings involving both
the defendant and the victim. One transcript came from a
pretrial dangerousness hearing stemming from charges against the
defendant for malicious destruction of property. The other
transcript contained the victim's testimony from a bail
revocation hearing, following the defendant's violation of the
victim's restraining order against him.11
11
For the first time on appeal, the defendant objects to
the manner in which the transcript was presented to the jury.
The victim's testimony was read aloud by an assistant district
attorney (ADA), while another ADA read the questions on direct
and defense counsel read the questions on cross-examination.
The defendant argues that allowing an ADA to read the victim's
answers risked confusing the jury as to the prosecutor's role in
the case. We disagree. The ADA was not sworn as a witness, and
the trial judge instructed the jury that the ADA was reading
from a transcript containing the victim's testimony. "We
30
In her testimony from each proceeding, the victim
identified the defendant as an individual committing certain
prior bad acts, which were admissible "to show motive . . . and
to show the entire relationship between the defendant and the
victim" (citations omitted). Commonwealth v. Drew, 397 Mass.
65, 79-80 (1986). See Mass. G. Evid. § 404(b) (2016). In her
testimony from one transcript, the victim identified the
defendant as the individual who, on two occasions, poured
battery acid into the gasoline tank of her motor vehicle. In
the other transcript, she testified that the defendant drove by
the restaurant where she worked, in violation of his restraining
order.
The defendant makes two arguments related to the admission
of the transcripts. First, the victim's testimony from the
hearings was not admissible because it does not fall within the
prior recorded testimony exception to the rule against hearsay
and its introduction violated his confrontation rights under the
Sixth Amendment and art. 12. The defendant did not object at
trial to the transcripts based on the limits of the prior
recorded testimony exception or constitutional grounds. We
review any error to determine whether it created a substantial
generally presume that a jury understand and follow limiting
instructions . . . and that the application of such instructions
ordinarily renders any potentially prejudice harmless" (citation
omitted). Commonwealth v. Crayton, 470 Mass. 228, 251 (2014).
31
likelihood of a miscarriage of justice. See Commonwealth v.
Cintron, 438 Mass. 779, 783 n.2 (2003). The admission of the
victim's prior testimony under oath did not create such a
likelihood.
Second, the defendant argues that the trial judge
improperly restricted his ability to impeach the victim's prior
testimony using video recordings she had made of the defendant
purportedly pouring battery acid into the gasoline tank of her
vehicle. At trial, the defendant objected to the denial of the
requested use of the recordings. There was no error.
a. Admissibility of victim's prior testimony. "We need
not decide the admissibility of [the victim's] testimony as
prior recorded testimony under our common law rule. If the
standards of the confrontation clause are met in the admission
of [the victim's] testimony, the interests of justice test
applied under G. L. c. 278, § 33E, is also met." Commonwealth
v. Trigones, 397 Mass. 633, 638 (1986). Accordingly, we review
the admission of the prior recorded testimony only to determine
whether it offends the defendant's confrontation rights. We
conclude it does not.
Admitting prior testimony does not violate the defendant's
confrontation rights when the declarant is unavailable, as a
matter of law, to testify and "the defendant has had an adequate
prior opportunity to cross-examine the declarant." Commonwealth
32
v. Hurley, 455 Mass. 53, 60 (2009), citing Crawford v.
Washington, 541 U.S. 36, 57-59 (2004). Under the Sixth
Amendment and art. 12,12 five factors determine whether the
defendant had a sufficient opportunity to cross-examine the
declarant at the prior proceeding: (1) the declarant was under
oath, (2) the defendant was represented by counsel, (3) the
proceeding took place before a record-keeping tribunal, (4) the
prior proceeding addressed substantially the same issues as the
current proceeding, and (5)13 the defendant had reasonable
opportunity and similar motivation on the prior occasion for
cross-examination of the declarant. Hurley, supra at 60. The
only dispute in this case is whether the prior proceedings were
addressed to "substantially the same issues" for which the prior
recorded testimony was admitted at trial, and whether the
defendant had a similar motive to cross-examine the witness. We
answer both questions in the affirmative.
12
In Hurley, 455 Mass. at 59-60 & n.12, we dealt only with
the Sixth Amendment, not art. 12. However, "in cases like this
one involving the hearsay rule and its exceptions, we have
always held that the protection provided by art. 12 is
coextensive with the Sixth Amendment." Commonwealth v.
Housewright, 470 Mass. 665, 670 n.7 (2015), quoting Commonwealth
v. DeOliveira, 447 Mass. 56, 57 n.1 (2006). On the facts of
this case, we similarly decline to extend the protections of
art. 12 beyond the Sixth Amendment's protections.
13
In Hurley, 455 Mass. at 60, we treated the fourth and
fifth factors as one factor. Here, we acknowledge they are
distinct requirements.
33
The prior proceeding need not be addressed to precisely the
same issue and the defendant need not have had precisely the
same motive for cross-examination. See id. at 60. The
similarity must be sufficient to provide the "trier of fact
. . . a satisfactory basis for evaluating the truth of the prior
statement." Id. at 62-63. The defendant's right to
confrontation does not guarantee "cross-examination that is
'effective in whatever way, and to whatever extent, the defense
might wish.'" Id. at 62, quoting Delaware v. Fensterer, 474
U.S. 15, 20 (1985) (per curiam). Rather, the confrontation
clause protects the defendant's right to test the evidence
presented against him by the sovereign through the crucible of
cross-examination.
We previously have considered whether a defendant had a
sufficiently similar motive on cross-examination in a prior
proceeding for purposes of the confrontation clause, when the
prior proceeding arose from the same underlying conduct. For
example, a declarant's prior testimony from a pretrial
dangerousness hearing pursuant to G. L. c. 276, § 58A, may be
sufficiently similar when introduced at a subsequent trial of
criminal charges for the same conduct. Hurley, 455 Mass. at 61-
62.
In Commonwealth v. Canon, 373 Mass. 494, 500-501 (1977),
cert. denied, 435 U.S. (1978), we affirmed the admission of
34
prior testimony from a civil contract dispute, in which the
burden of proof requires only a finding by a preponderance of
the evidence, in a subsequent criminal proceeding.14 During the
contract dispute, one of the contracting parties defended an
allegation of breach of contract by arguing that the contract
was illegal and therefore unenforceable. Id. The plaintiff in
the civil dispute -- a public official -- was subsequently
prosecuted for violating a conflict of interest law by entering
into the contract. Id. at 495. The legality of the agreement
was at issue in both cases. Id. at 500-501. We concluded the
issues and motivation on cross-examination were sufficiently
similar for confrontation purposes, notwithstanding differences
in the burdens of proof and the tactical direction of cross-
examination. Id.
In this case, the issues and the defendant's motive on
cross-examination at the prior proceedings were sufficiently
similar to satisfy the confrontation clause. See Hurley, 455
Mass. at 61-62; Canon, 373 Mass. at 500-501. Although the
victim's testimony at the prior proceedings dealt with different
underlying conduct -- whether the defendant had damaged her
14
Although we decided Commonwealth v. Canon, 373 Mass. 494
(1977), cert. denied, 435 U.S. (1978), prior to Crawford, we
nonetheless considered the similarity of the motive on cross-
examination to determine whether the prior testimony was
sufficiently reliable, under the former rule of Ohio v. Roberts,
448 U.S. 56, 65-66 (1980).
35
vehicle and not whether the defendant had murdered her -- her
testimony was admitted at the current proceeding to establish
only that the defendant had in fact damaged the victim's
vehicle. The prior testimony focused on her identification of,
and her hostile relationship with, the defendant. These issues
had been subject to adequate cross-examination at the prior
proceedings. The defendant was permitted to introduce that
cross-examination, in addition to other inconsistent statements,
to undermine the victim's credibility, the reliability of her
identification of the defendant as the perpetrator of the prior
bad acts, and the hostile nature of their relationship. In many
instances, the cross-examination of the victim in the prior
proceedings closely resembled the defendant's cross-examination
of other witnesses at trial who had personal knowledge of the
defendant's relationship with the victim.
The prior recorded testimony was admitted at trial only to
prove the bad act, as relevant to the hostile relationship,
rather than the conduct forming the basis of the murder charges.
The issues at the prior proceedings and at the murder trial were
therefore sufficiently similar to permit the jury to determine
the credibility of the victim's testimony from those earlier
proceedings, Hurley, 455 Mass. at 60, satisfying the
confrontation clause and our review pursuant to G. L. c. 278, §
36
33E.15 See Canon, 373 Mass. at 500-501. See also People v.
Sierra, 482 Mich. 1107, 1109-1110 (2008) (Kelly, J., dissenting)
(dissenting from denial of appeal, because lower court may have
erred in finding that testimony from trial of different
defendant on related drug charges did not satisfy similarity
requirement); State vs. Stein, Court of Appeals of Wash., Nos.
31980-2-II & 32982-4-II, slip op. at pars. 105-111 (August 7,
2007, amended August 21, 2007) (affirming admission of prior
testimony from real estate dispute in subsequent murder trial).
b. Restriction on use of video recordings to impeach
victim's prior testimony. At trial, the defendant moved to
introduce two video recordings, created by the victim, that
purportedly showed the defendant pouring battery acid into the
gasoline tank of her vehicle. Originally, the Commonwealth
sought to introduce the recordings, but the defendant objected
15
When the Commonwealth offers an out-of-court statement in
a criminal case, the evidentiary and potential confrontation
clause issues can prove challenging. The following conceptual
approach may be helpful: First, is the out-of-court statement
being offered to establish the truth of the words contained in
the statement? In other words, is the out-of-court statement
hearsay? If the out-of-court statement is offered for any
purpose other than its truth, then it is not hearsay and the
confrontation clause is not implicated. Second, if the evidence
is hearsay, does the statement fall within an exception to the
rule against hearsay? Third, if the hearsay falls within an
exception, is the hearsay "testimonial"? Fourth, if the hearsay
is testimonial, has the out-of-court declarant been previously
subject to cross-examination and is the out-of-court declarant
"unavailable" as a matter of law, such that the testimonial
hearsay does not offend the confrontation clause?
37
on the grounds that they were "dark and murky" such that the
"person's face is unable to be seen." The trial judge excluded
the recordings.
Subsequently, the defense sought to admit the recordings
for two purposes: (1) to impeach the victim's prior recorded
testimony in which she identified the defendant, and (2) to
demonstrate in the defense's case that the defendant was not the
individual captured in the recordings. On appeal, the defendant
argues only that the trial judge erred with respect to the first
purpose.16 The trial judge did not err in denying the
defendant's motion.
A trial judge has discretion to determine the scope of
cross-examination. Mass. G. Evid. § 611(a), (b) (2016). The
trial judge permissibly determined that the recordings served
little, if any, value to impeach the victim's identification of
the defendant as the individual pouring battery acid into her
vehicle's gasoline tank. The victim's testimony was based on
her own observations, which differed from what the recordings
captured, as she did not remain at the same vantage point as the
16
Any error as to the second purpose did not create a
substantial likelihood of a miscarriage of justice. The defense
would have used the recordings only in an effort to disprove a
prior bad act, a collateral matter cumulative of other evidence
showing a hostile relationship. See Commonwealth v. Perez, 411
Mass. 249, 260-261 (1991) (even if erroneously admitted,
evidence that was merely cumulative was harmless beyond
reasonable doubt).
38
video recorder. See Commonwealth v. Pettijohn, 373 Mass. 26, 30
(1977) (misidentification by one witness properly excluded as
irrelevant for purposes of impeaching identification by another
witness); Pettijohn v. Hall, 599 F.2d 476, 480 (1st Cir.), cert.
denied, 444 U.S. 946 (1979) (same). The trial judge reasonably
determined that the defense should not be permitted to use the
recordings solely for impeachment purposes.
Conclusion. We have reviewed the entire record on both the
law and the facts pursuant to our obligation under G. L. c. 278,
§ 33E. We have determined that any errors identified above do
not, individually or cumulatively, entitle the defendant to
relief, as the interests of justice do not require the entry of
a verdict of a lesser degree of guilt or a new trial.
Judgment affirmed.