Commonwealth v. Armstrong ( 2023 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-13134
COMMONWEALTH vs. GLENN R. ARMSTRONG.
Worcester. April 10, 2023. - June 30, 2023.
Present: Budd, C.J., Gaziano, Cypher, Kafker, & Wendlandt, JJ.
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement, Waiver of constitutional
rights. Evidence, Admissions and confessions,
Voluntariness of statement, Fingerprints, Expert opinion.
Search and Seizure, Threshold police inquiry. Threshold
Police Inquiry. Mental Impairment. Practice, Criminal,
Capital case, Motion to suppress, Admissions and
confessions, Voluntariness of statement, Waiver,
Instructions to jury. Witness, Expert.
Indictments found and returned in the Superior Court
Department on June 13, 2017.
A pretrial motion to suppress evidence was heard by Shannon
Frison, J., and the cases were tried before Daniel M. Wrenn, J.
Sean M. Smith for the defendant.
Danielle E. Borges, Assistant District Attorney, for the
Commonwealth.
WENDLANDT, J. The defendant, Glenn Armstrong, was
convicted of murder in the first degree on the theories of
2
deliberate premeditation and extreme atrocity or cruelty in
connection with the January 2017 killing of his eighty-three
year old father, Walter Armstrong.1 The victim was found dead in
his Blackstone home. He had suffered multiple blows to his head
and torso, and six of his ribs were fractured. A plastic
garbage bag had been placed over his head, apparently while he
was still alive, and then tied tightly around his neck with a
belt. A medical examiner would later opine that the cause of
death was blunt force injuries of the head and torso and
asphyxia by ligature strangulation. There were no signs of
forced entry, and the defendant's belongings were in the home,
as was the sideview mirror of the victim's truck, although the
truck was missing. Earlier that day, before the discovery of
the victim's body, the defendant, who had been estranged from
his father for decades before reestablishing a connection that
year, had arrived at his brother-in-law's home searching for
adhesive to reattach the truck's sideview mirror; he left a
handwritten note, stating, "DAds iN A Betta Mood Now." The
defendant would later be found in New Jersey along with the
victim's truck, which was missing its sideview mirror.
In this direct appeal, the defendant maintains that the
motion judge erred in denying his motion to suppress evidence
1 The defendant was also convicted of larceny of a motor
vehicle, in violation of G. L. c. 266, § 28 (a).
3
from the New Jersey police officers who arrested him, that the
trial judge erred in denying his request for a jury instruction
on mental impairment, and that testimony by the Commonwealth's
fingerprint analysis expert opining that fingerprints found on
the bag covering the victim's body matched the defendant's was
improper. He also asks the court to exercise its authority
under G. L. c. 278, § 33E, to reduce the degree of guilt or
order a new trial. We affirm the convictions and discern no
reason to grant relief under G. L. c. 278, § 33E.
1. Background. a. Facts. The following facts are
supported by the evidence presented at trial.
i. Discovery of the victim. The defendant and the victim,
his eighty-three year old father, had been estranged for
approximately two decades. They had reconnected after the death
of the defendant's mother -- the victim's wife -- in 2016.
Approximately nine months later, on January 11, 2017, a
Blackstone police officer arrived at the victim's Blackstone
home at about 5 P.M. to conduct a welfare check;2 no one answered
2 Earlier that morning, at about 10:45 A.M., a "Meals on
Wheels" delivery driver had arrived at the victim's home, but
the victim had not answered the door and his truck was not in
the carport. The driver observed that the television in the
living room was on and saw a man's shoe in the middle of the
floor; the driver informed her supervisor, and ultimately the
Blackstone police department was asked to conduct a welfare
check.
4
the door, and the victim's truck was not in the carport.3 There
were no signs of forced entry; the doors to the house were
locked, and the windows were secured.4
The police officer radioed dispatch to ask for assistance
in gaining entry to the home. The defendant's sister and
brother-in-law arrived; the sister had a key to a sliding door
in the carport, but not to the screen in front of it, which the
officer cut through. They entered the house and ultimately
found the victim dead on the floor of one of the bedrooms.
A black garbage bag covered the victim's head and was
secured tightly with a belt around his neck. In the opinion of
the Commonwealth's expert on fingerprint analysis, latent
fingerprints found on the bag and on a roll of bags in the
basement matched the defendant's fingerprints.5 Next to the
victim were his wallet, which did not appear to be missing any
3 The television, which had been on earlier that morning,
see note 2, supra, was still on.
4 There were three doors to the house. Two were locked from
the inside -- only the front door could have been locked and
deadbolted from the outside. Given that there was no sign of
forced entry, the Commonwealth's theory was that the killer
could have left through the front door and then locked it from
the outside with the key. As discussed infra, when the
defendant was later found in New Jersey, he had two keys for the
front door -- one had belonged to the victim, and the other had
belonged to the defendant's mother.
5 The expert based this opinion on the "analysis,
comparison, evaluation, and verification" (ACE-V) framework, as
discussed infra.
5
items, and a receipt from the prior day for an order, including
a medium sized drink, from a quick serve food establishment in
Woonsocket, Rhode Island. In the hallway in front of the
doorway was a red-brown stain of the victim's blood.
On the kitchen table lay the victim's glasses6 and a
sideview mirror from the victim's truck.7 Near the kitchen sink
was a cup bearing a logo from the same quick serve food
establishment as shown on the receipt. In the basement were the
defendant's leather jacket, identification card, and cell phone.
These items were found next to a couch that appeared slept-in;
the defendant had been evicted recently from his own home. Near
the belongings was the roll of black garbage bags.
A medical examiner performed an autopsy on the victim.
Inside the garbage bag, she found almost three cups of blood.
There was a ligature furrow, three centimeters wide, around the
victim's neck. The victim had multiple bruises on his arms and
torso, bruises and lacerations on his face and hands, swelling
and bruising of the left ear, hemorrhages of the conjunctivae of
his eyes, and six fractured ribs. The medical examiner opined
that the victim was alive when the bag was placed over his head.
She explained that strangulation occludes part of the blood
6 After the death of his wife, the victim had been sleeping
on a couch in the adjacent living room.
7 Two bent venetian blinds were the only sign of a struggle.
6
flow, increasing the blood pressure in the capillaries in the
face, resulting in ruptured capillaries and pinpoint
hemorrhages, which the victim had. These hemorrhages would not
have occurred if the victim had not been alive while he was
being strangled. She opined that the cause of death was blunt
force injuries of the head and torso and asphyxia by ligature
strangulation. The defendant's deoxyribonucleic acid (DNA) was
not found on the victim, nor was the victim's DNA found on the
defendant.
ii. Events prior to discovery of the victim's body. Two
days before the victim's body was found, the defendant was
without a vehicle -- his own truck was being repaired by his
brother-in-law and his rental car was in an impound lot. He
wore the leather jacket and a lanyard with the identification
card –- items that would be found later in the victim's home --
when the defendant and his brother-in-law tried and failed to
retrieve the rental vehicle. The victim had refused to drive
the defendant to the impound lot, but gave him a ride to a
storage facility in his truck.8 The victim generally did not
allow others to drive his truck, and at least once, the
8 The defendant showed an employee of the storage facility
his identification card and told her that he was "homeless."
7
defendant had asked to borrow the victim's truck, but the victim
had refused.9
On the morning of the day before the victim's body was
found, his truck was in its usual place in the carport of the
Blackstone home.10 The truck had no visible damage. The victim
happily greeted a delivery driver from "Meals on Wheels,"
engaging in "light-hearted banter."11 That afternoon was the
last time the victim was seen alive; he had arrived at a
business in Woonsocket, Rhode Island, looking for the
defendant.12 During that same afternoon, the defendant initially
had called his brother-in-law to ask to be picked up from a
quick serve food establishment in Woonsocket, but later informed
his brother-in-law that he no longer needed assistance because
the victim had given him a ride in his truck. As discussed
supra, a receipt and cup from this establishment would later be
found in the victim's home when his body was discovered.
9 A witness for the defense, a friend of the defendant,
testified that once, in 2016, the defendant borrowed the
victim's truck.
10The victim generally parked his truck in the carport of
his home and did not drive at night due to his limited vision.
11Following the death of his wife, the defendant's mother,
the victim had been receiving food deliveries from "Meals on
Wheels."
12The defendant had lived in Woonsocket, which is just
south of Blackstone, prior to being evicted from his home.
8
At approximately 3 A.M. and 5 A.M. on January 11, 2017, the
day the victim's body was found, the defendant left voice
messages for the car rental company. In the second message, he
told the company that he no longer needed a vehicle.
At around 9:30 A.M., the defendant drove the victim's truck
to his brother-in-law's garage, looking for adhesive to reattach
the sideview mirror. The brother-in-law was not there.13 The
defendant entered the garage, carrying a brown paper bag, and
then left.
Later that day, the brother-in-law found a note written on
a paper bag in the defendant's handwriting, left on his work
bench, reading "THNX 4 The Donut Bro." The brother-in-law would
later find a second note, also written in the defendant's
handwriting on a piece of a brown paper bag, reading "DAds iN A
Betta Mood Now." Neither note had been in the garage before
that morning.
iii. New Jersey events. The day after the victim's body
was found, two police officers from Mount Laurel, New Jersey,
Mark Ricigliano and Alan Levy, were dispatched to a motel to
respond to "a trespassing-suspicious persons complaint."
Ricigliano encountered the defendant in the lobby bathroom and
walked with him to the motel's parking lot, where the defendant
13 The brother-in-law's coworker was present and testified
as to his observations of the defendant that morning.
9
had left the victim's truck. The truck was missing its sideview
mirror. The defendant was disheveled, wearing shorts and
unlaced boots, and had abrasions and scratches on his face and
legs. He refused to share his name with the officers. He told
the officers that he had been robbed of his cell phone14 and
wallet; he reported that he was stranded, having run out of
gasoline while on his way to the Department of the Interior,
where he claimed he worked an unpaid job.15 Ricigliano testified
that the defendant was "just kind of strange" and was
confrontational and "aggressive at times." Levy added that the
defendant "was just speaking things that didn't make much sense
. . . and just kind of irrational, and just like something was
going on."
Ricigliano conducted a registration query of the truck and
learned that it was registered to the victim; he also learned
that "Glenn Armstrong" was wanted for questioning in a murder
investigation. Ricigliano called the defendant by his first
name; when the defendant acknowledged him, the defendant was
placed under arrest.
14As set forth supra, the defendant's cell phone was found
in the victim's basement the day prior, when the victim's body
had been found.
15Ricigliano offered to make a telephone call for the
defendant.
10
From the glove box of the truck, officers recovered a set
of keys on a keychain with the name "Walter" and a label "front"
-- the victim's keys to the front door of his house. Another
set of keys to the front door of the victim's house were
recovered; these were labeled with the name of the defendant's
mother. Later, while officers attempted to read the defendant
the Miranda rights, he repeatedly interrupted them, including to
ask them whether the victim had reported the truck stolen and to
tell them that he had been evicted; that he had ripped the
sideview mirror off the victim's truck; that he subsequently had
awakened his father, who appeared "grouchy"; and that he had
stolen the truck to get it fixed at his brother-in-law's garage.
b. Procedural history. The defendant was indicted in
June 2017 on one count of murder in the first degree, in
violation of G. L. c. 265, § 1, and one count of larceny of a
motor vehicle, in violation of G. L. c. 266, § 28 (a). The
defendant filed a motion to suppress evidence from the New
Jersey encounter, which was denied after an evidentiary hearing.
A jury trial was held in May 2019. The jury found the
defendant guilty of murder in the first degree on the theories
of deliberate premeditation and extreme atrocity or cruelty.
11
The defendant was sentenced to life without parole.16 He filed a
timely notice of appeal.
2. Discussion. In this direct appeal, the defendant
raises several issues, which we address in turn.
a. Motion to suppress. The defendant contends that the
motion judge erred in denying his motion to suppress evidence
obtained by the New Jersey police officers, arguing for the
first time on appeal that he was subject to custodial
interrogation without being provided with Miranda warnings.17
The Commonwealth asserts that, because the interaction was
within the scope of the community caretaking function, there was
no custodial interrogation and Miranda warnings were not
required. "In reviewing a decision on a motion to suppress, we
accept the judge's subsidiary findings absent clear error but
conduct an independent review of [the] ultimate findings and
16The jury also found the defendant guilty of larceny of a
motor vehicle, and the defendant was sentenced to a term of from
two years to three years in State prison, concurrent with his
life sentence.
17In his motion to suppress, the defendant argued that he
was illegally seized prior to the point at which the New Jersey
police officers learned of the outstanding arrest warrant in
connection with the victim's killing; he did not raise an
argument related to an alleged failure to provide him with
Miranda warnings. Similarly, at trial, the defendant renewed
his "motion to suppress the Terry stop," but again did not
contend that there was a Miranda rights violation. The renewed
motion was denied on the same grounds as was his motion to
suppress.
12
conclusions of law" (quotations and citation omitted).
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
i. Background. We recite the facts found by the motion
judge.18
Ricigliano and Levy "received a call for a person who would
not leave . . . [a m]otel"; upon arriving at the motel,
Ricigliano spoke with employees at the front desk, who told him
"that a man who was not a guest had been in and out of the
building most of the night, and that they were concerned about
his appearance and demeanor." The employees "wanted [the
officers] to check on [the defendant] and make sure he was
okay." A desk clerk stated that the defendant "made her feel
uncomfortable."19
Ricigliano knocked on the door of the motel lobby bathroom,
and the defendant emerged, left the lobby area, and departed
18We also supplement the motion judge's subsidiary findings
with "evidence from the record that 'is uncontroverted and
undisputed and where the judge explicitly or implicitly credited
the witness's testimony.'" Jones-Pannell, 472 Mass. at 431,
quoting Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007),
S.C., 450 Mass. 818 (2008). We "do so only so long as the
supplemented facts 'do not detract from the judge's ultimate
findings.'" Jones-Pannell, supra, quoting Commonwealth v.
Jessup, 471 Mass. 121, 127-128 (2015).
19Levy testified as to the "normal protocol" in these
situations; he stated that this "standard operating procedure"
was intended to "make the complainant feel good that . . . we
identified this person . . . [and] they're not wanted, they're
not missing [or] endangered, [and] . . . they're not a [National
Crime Information Center] hit."
13
from the motel into the adjacent parking lot. Ricigliano
followed him. Ricigliano explained that the defendant "was
reluctant to give his name to the officer, but [he] stated that
he had lost his wallet (and money) and had run out of
gas[oline]." It was winter; the defendant was wearing shorts,
and his work boots were unlaced. He "was argumentative at
times, [and] said that he worked for the Department of the
Interior and [was] on his way back to Washington[,] D.C. (though
he said he did not get paid from that job)."
Ricigliano noted that "the defendant's emotions seemed to
fluctuate during their conversation." He thought the defendant
"might be lost, disoriented, or a missing person."20 Ricigliano
20Ricigliano testified that they "were trying to figure out
who [the defendant] was and how [they] could help him"; their
"main concern was that he may have been -- just by the way he
was acting -- he may have been an emotionally disturbed person
that may have been entered missing or endangered and [they]
were, at that point in time[,] concerned for his well-being to
see if, you know, what [they] could do to assist him." He
further testified:
"[W]e asked him, obviously, what was going on, why you were
there. And just his answers -- his evasiveness about who
he was kind of makes you, you know, maybe [think] there's
something going on. Maybe he doesn't know who he is. So
out of concern for his well-being, and just trying to see
if he needs some type of help, he said he was stranded
there. We dug a little more to, you know . . . -- like I
said, sometimes people leave their house and they're
reported missing because they have mental problems, or
issues, or whatever. And they're, you know, we were just
concerned that he may have been, you know, ha[ving] an
14
"directed the defendant to sit down near [the victim's] truck at
one point because he was becoming agitated and irrational."21
Ricigliano then entered the truck's license plate number into
his mobile data terminal and learned of an arrest warrant for an
individual named "Glenn Armstrong"; when the defendant responded
to the name "Glenn," Ricigliano placed the defendant under
arrest.22 The interaction lasted approximately twenty minutes,
from when Ricigliano arrived on the scene to when he arrested
the defendant.23
ii. Analysis. Law enforcement officers sometimes are
called upon to engage in duties "in which there is no claim of
issue and he left the house and he -- so, you never know.
There's a thousand things that it could be."
Levy testified that he and Ricigliano were trying to "maybe help
get [the defendant] some gas[oline]" and "maybe even possibly
get[] him medical treatment if he needed."
21When asked whether the order was made in "a command
voice," Ricigliano answered, "We pressed him to sit down, yes."
Additionally, Levy explained that he was concerned that the
defendant may have been missing, wanted, or a danger to himself
or others.
22Levy testified that, until they learned of the warrant,
they were "trying to find ways to help" the defendant.
23An audio recording of the interaction was introduced at
trial; this recording was not presented during the motion
hearing, nor was it before the trial judge when he denied the
renewed motion. Nonetheless, we have reviewed the audio-visual
footage independently, see Commonwealth v. Yusuf, 488 Mass. 379,
380-381 (2021), in connection with our review pursuant to G. L.
c. 278, § 33E.
15
criminal liability," such as the officers' "community caretaking
functions, totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of a
criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441
(1973). Under the community caretaking function, "an officer
may, when the need arises, stop individuals and inquire about
their well-being, even if there are no grounds to suspect that
criminal activity is afoot." Commonwealth v. Knowles, 451 Mass.
91, 94-95 (2008). See id. at 95 ("An officer may take steps
that are reasonable and consistent with the purpose of his
[community caretaking] inquiry, . . . even if those steps
include actions that might otherwise be constitutionally
intrusive").
But "[a] noncoercive inquiry initiated for a community
caretaking purpose may ripen into a seizure requiring
constitutional justification." Commonwealth v. Mateo-German,
453 Mass. 838, 842 (2009). See id. ("A check by a police
officer . . . falls within the scope of the community caretaking
function when its purpose is to protect the well-being of the
[individual] and the public -- and not when the purpose is the
detection or investigation of possible criminal activity").
See, e.g., Commonwealth v. Eckert, 431 Mass. 591, 595-596 (2000)
(well-being check ripened into seizure when officer asked
defendant to get out of vehicle and perform field sobriety tests
16
such that "it was reasonable for the defendant to conclude that
he was no longer free to leave and that his cooperation with the
trooper's investigation was no longer voluntary").
Here, the record shows that the New Jersey officers had "an
objectively reasonable basis for believing that the safety of an
individual or the public [was] jeopardized," and their actions
stayed within their community caretaking function. Commonwealth
v. Gonsalves, 445 Mass. 1, 9-10 (2005), abrogated on other
grounds as recognized by Commonwealth v. Rand, 487 Mass. 811,
825 n.14 (2021), quoting Commonwealth v. Brinson, 440 Mass. 609,
615 (2003). The officers' noncoercive inquiries centered on the
well-being of the defendant, who appeared to be stranded, away
from his home, without a cell phone, a wallet, or gasoline for
the truck, and ill-dressed for the winter day. Moreover, the
defendant refused to identify himself and also exhibited
behaviors indicating that he was disoriented or potentially
experiencing a mental health crisis.
The officers' actions and questions did not stray into a
custodial investigation of criminal conduct; indeed, at the time
they were questioning the defendant, they were unaware that he
was wanted in connection with the victim's killing. Cf.
Knowles, 451 Mass. at 95-96 (community caretaking function not
implicated where "objective view of the actions of the officer
leads to the conclusion that he was in fact conducting a
17
criminal investigation," motivated by search for evidence,
rather than caretaking). In these circumstances, the officers'
attempts, including temporarily detaining the defendant, to
ascertain the defendant's identity and to ensure he was not
missing or wanted were reasonable. See id. at 95 ("under
community caretaking doctrine, officers may, without reasonable
suspicion of criminal activity, approach and detain citizens for
community caretaking purposes"). See, e.g., Commonwealth v.
Evans, 436 Mass. 369, 376 (2002) ("This request for the
defendant's license and registration was a minimal intrusion on
the defendant's rights, outweighed by the trooper's
responsibility to protect the public, through the community
caretaking function, from a driver who may be unfit to continue
driving").
Because the officers' conduct did not ripen into a
custodial investigation of criminal activity, the officers were
not required to give Miranda warnings to the defendant. See
Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007), quoting
Commonwealth v. Jung, 420 Mass. 675, 688 (1995) ("Miranda
warnings are only necessary for 'custodial interrogations'").
See also Cady, 413 U.S. at 447-448 (where officer's conduct
falls within community caretaking function, no search or seizure
in constitutional sense occurs); Evans, 436 Mass. at 372(interactions within community caretaking function "do not
18
require judicial justification"). Cf. Gonsalves, 445 Mass. at 9("Questioning by law enforcement agents to secure a volatile
scene or establish the need for or provide medical care is not
colloquially understood as interrogation -- it is not commonly
understood as related to the investigation or prosecution of a
crime" [footnote omitted]).
b. Mental impairment instruction. The defendant also
maintains that the judge erred in denying his request for a
mental impairment instruction. However, as early as the hearing
on the motion to suppress, defense counsel explained that the
defendant did not want to pursue a defense based on mental
impairment:
"[W]e're in a situation with this case what defense [sic]
we're going to go with; whether it's going to be a mental
health or a reasonable doubt defense, if you will --
identification. My client has indicated that he would
rather go with the reasonable doubt identification
defense."24
The defendant then filed the motion in limine to "exclude
evidence of the defendant's mental health diagnosis . . . [and]
institutional commitments," which was "allowed generally."
In turn, the prosecutor repeatedly affirmed that he "[did]
not intend to get involved with" the defendant's mental health
24 Appellate counsel represented that his own investigation
into the case revealed that the defendant was competent to make
this decision. See discussion, infra, on a defendant's
constitutional right to choose whether to raise a mental
impairment defense.
19
issues in his direct examination of witnesses and would not "ask
those questions," in view of the ruling on the motion in limine.
Before the New Jersey police officers testified, defense counsel
noted: "I know you have exclud[ed] references to [the
defendant's] mental health diagnosis, so in advance of their
testimony I would want to alert the court that I would be
objecting to any answers regarding his mental health, or their
opinion that he was having some mental health breakdown on that
particular occasion."
The defendant first requested the instruction after the
Commonwealth had rested, arguing that the instruction was
warranted principally in view of the New Jersey officers'
testimony concerning the defendant's behavior on the day
following the discovery of the victim's body.25 But even at the
charge conference, defense counsel reiterated the defense
strategy of challenging the Commonwealth's ability to meet its
burden of showing, beyond a reasonable doubt, that the defendant
was the person who killed the victim. Defense counsel
explained:
25Specifically, defense counsel focused on "the booking
photos, the appearance, his irrational statements during that
. . . interaction with Mount Laurel [police department], his
rants about being an employee of the Department of Interior but
he doesn't get paid -- things of that nature," along with
testimony that "he seemed to be acting irrationally or strangely
to them."
20
"[E]ven though we're not arguing it, I think there's a lot
of evidence of some sort of mental illness, if you will,
that's kind of seeped into the case. Obviously, I've tried
to keep . . . as much as possible out, but most of the
evidence that's been admitted which would point to that
would be through the [C]ommonwealth, really -- the voice-
mails, the dash-cam cruiser video, and his statements, the
booking photos, the behavior, the irrational statements.
He drives until he runs out of gas[oline] -- I think there
is some evidence of mental illness in this case. We didn't
want it in and I'm not going to argue it, but I think the
court is required to instruct the jury on it if there's
facts in evidence that would justify an instruction."
The prosecutor objected to the defendant's request for the
instruction, contending that, based on the allowance of the
motion in limine, he had "[done his] best to limit any
[statements about any mental impairment] from the witnesses."
Defense counsel responded that, while he had tried to keep out
as much mental health evidence as possible, some evidence of the
defendant's bizarre behavior, nonsensical statements, and
disheveled appearance had been admitted. The trial judge
declined to give the instruction, explaining that there was
insufficient evidence of mental impairment and that he "[did
not] view mental impairment to be a live issue in this case."
"[W]here evidence of the defendant's mental impairment is
significant and where it is a critical aspect of [the
defendant's] defense, the failure to instruct the jury that they
could consider evidence of that impairment" is error.
21
Commonwealth v. Rutkowski, 459 Mass. 794, 799 (2011).26 To be
entitled to a mental impairment instruction, "a defendant must,
at a minimum, introduce evidence that such an impairment existed
at the time of the conduct in question." Commonwealth v.
Santiago (No. 2), 485 Mass. 416, 426-427 (2020). Here, at the
defendant's own request, no evidence of mental impairment at the
time of the killing was introduced.
Moreover, although expert testimony is not required,27 see
Santiago, 485 Mass. at 425, the evidence of the defendant's
disheveled appearance on the day after the victim's body was
found, his choice of summer clothing in winter, his
confrontational manner with the New Jersey officers, his claimed
unpaid employment with the Department of the Interior, and his
otherwise "bizarre" or "odd" behaviors were not "significant"
evidence of mental impairment. Compare Commonwealth v. Doughty,
491 Mass. 788, 800 (2023) (no mental impairment instruction
26Evidence of a defendant's mental impairment "bears on the
specific intent required for murder in the first degree based on
deliberate premeditation," Commonwealth v. Gould, 380 Mass. 672,
682 (1980), and also on the defendant's "ability to make a
decision in a normal manner," relevant to "whether the murder
was committed with extreme atrocity or cruelty," id. at 685-686.
27In connection with his consideration of the requested
instruction, the trial judge mentioned the failure of the
defendant to offer any "formal opinion evidence." Of course, a
mental impairment instruction can be warranted even in the
absence of expert testimony. See Santiago, 485 Mass. at 425.
Here, however, the judge was correct that the evidence presented
was insufficient, as explained infra.
22
required based on testimony defendant was "odd," including
strange behavior and statements after killing), with Rutkowski,
459 Mass. at 796-799 (mental impairment instruction required
based on evidence of defendant's "long history of mental
illness," including hospitalizations and diagnoses).
Further, far from being a critical aspect of the defense,
the defendant repeatedly made clear that he was not pursuing a
mental impairment defense. Rather, as discussed supra, he
intended to focus the defense on challenging the prosecution's
ability to meet its burden of proof in identifying him as the
killer. Even in closing argument, defense counsel did not
mention mental impairment, instead raising questions regarding
the prosecution's proof that the defendant was the killer.
Compare Rutkowski, 459 Mass. at 799 ("The sole defense in this
case was lack of criminal responsibility and its closer
relative, mental impairment").
On this record, the trial judge did not abuse his
discretion in declining to give a mental impairment instruction.
c. Certainty of fingerprint testimony. The defendant
contends that the Commonwealth's fingerprint analysis expert
impermissibly suggested a level of scientific certainty
regarding his testimony that the fingerprints found on the bag
that covered the victim's head when the victim's body was found
matched those of the defendant. The defendant did not object to
23
the expert's testimony. Accordingly, we examine the testimony
to determine whether it was improper and, if so, whether it
created a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Fulgiam, 477 Mass. 20, 43, cert. denied, 138
S. Ct. 330 (2017).
The defendant principally relies on a report published by
the National Research Council from the National Academy of
Sciences in 2009, which we previously have considered and have
recognized evinces certain limitations of ACE-V28 fingerprint
analysis -- the same framework employed by the expert in the
present case. See Commonwealth v. Gambora, 457 Mass. 715, 724-
726 (2010), citing National Research Council, Strengthening
Forensic Science in the United States, A Path Forward 102-104,
136-145 (2009) (NAS report).29 "Ultimately, the [NAS] report
28ACE-V stands for analysis, comparison, evaluation, and
verification.
29We explained that, although fingerprint evidence is not
so unreliable that courts should no longer admit it, and "[t]he
report does not appear to question the underlying theory . . .
[that] there is scientific evidence supporting the theory that
fingerprints are unique to each person and do not change over a
person's life," Gambora, 457 Mass. at 724-725, citing NAS
report, supra at 143-144 & n.34, the uniqueness of fingerprints
does not "guarantee that prints from two different people are
always sufficiently different that they cannot be confused, or
that two impressions made by the same finger will also be
sufficiently similar to be discerned as coming from the same
source." Gambora, supra at 724-725, quoting NAS report, supra
at 144. The report "stress[ed] the subjective nature of the
24
focuse[d] on the need to prevent overstatement of the accuracy
of fingerprint comparisons . . . ." Gambora, supra at 726. In
light of the NAS report, we gave the following guidance in
Gambora: "[t]estimony to the effect that a latent print
matches, or is 'individualized' to, a known print, if it is to
be offered, should be presented as an opinion, not a fact, and
opinions expressing absolute certainty about, or the
infallibility of, an 'individualization' of a print should be
avoided." Id. at 729 n.22.30 See Commonwealth v. Joyner, 467
Mass. 176, 183 n.9, 184-185 (2014) ("Gambora permits a
fingerprint expert to opine on whether two fingerprint match,"
judgments that must be made by the fingerprint examiner at every
step of the ACE-V process," Gambora, supra at 725, explaining:
"ACE-V provides a broadly stated framework for conducting
friction ridge analyses. However, this framework is not
specific enough to qualify as a validated method for this
type of analysis. ACE–V does not guard against bias; it is
too broad to ensure repeatability and transparency; and
does not guarantee that two analysts following it will
obtain the same results. For these reasons, merely
following the steps of ACE–V does not imply that one is
proceeding in a scientific manner or producing reliable
results."
Gambora, supra at 725-726, quoting NAS report, supra at 142.
30 We noted "tension in the report between its assessments
that, on the one hand, 'it seems plausible that a careful
comparison of two impressions can accurately discern whether or
not they had a common source,' . . . but that, on the other,
'merely following the steps of ACE-V does not imply that one is
proceeding in a scientific manner or producing reliable
results.'" Gambora, 457 Mass. at 729 n.22, quoting NAS report,
supra at 142.
25
and "[t]he weight and credibility to be accorded the
identification evidence . . . was for the jury to determine").
Here, the Commonwealth's fingerprint expert framed his
conclusions that the defendant' fingerprints matched those on
the bag as "opinions" to a "reasonable degree of scientific
certainty."31 See Gambora, 457 Mass. at 729 n.22. The opinions
were not presented as facts or as infallible. Compare Fulgiam,
477 Mass. at 44-45 (expert improperly testified "that
individualization signifies that the print examiner has 'come[]
to the conclusion that there is a sufficient amount of quality
and quantity of those details between the latent print and the
known fingerprint . . . to establish that the latent
[fingerprint] originated from the known print" and that "on
31After the date of the trial in the present matter, we
clarified that, prospectively from the date of our decision, "an
expert testifying to a fingerprint match must state expressly
that the match constitutes the expert's opinion based on the
expert's education, training, and experience"; "[i]t is not
enough . . . for the expert to avoid testifying that the match
is one hundred percent certain." Commonwealth v. Robertson, 489
Mass. 226, 238, cert. denied, 143 S. Ct. 498 (2022). We
suggested that the prosecutor ask "whether the witness has an
opinion 'to a reasonable degree of fingerprint analysis
certainty,'" analogizing to our holdings in ballistics cases
(emphasis added). Id. at 238, citing Commonwealth v. Pytou
Heang, 458 Mass. 827, 848 (2011). See Pytou Heang, supra at
848-849 ("expert may offer . . . opinion to a 'reasonable degree
of ballistic certainty," but "[p]hrases that could give the jury
an impression of greater certainty . . . should be avoided," and
"[t]he phrase 'reasonable degree of scientific certainty' should
also be avoided because it suggests that forensic ballistics is
a science, where it is clearly as much an art as a science").
26
several occasions . . . she individualized fingerprints of the
defendants to latent prints found at the scene of the crime"
without "clearly fram[ing] the[] findings in the form of an
opinion").
The expert's description of the ACE-V process as a
"scientific methodology" arguably verged on suggesting that the
ACE-V process is more scientific than warranted. Gambora, 457
Mass. at 726, quoting NAS report, supra at 142 ("merely
following the steps of ACE-V does not imply that one is
proceeding in a scientific manner"). While he clarified that
the process involved a "subjective analysis," he coupled that
statement with the assertion that ACE-V involved "an objective
evaluation."32 See Joyner, 467 Mass. at 181 n.6 (noting
"subjective nature of the judgments that a fingerprint examiner
makes in conducting each step of the ACE-V methodology").
Still, viewed as a whole, his testimony on direct examination
did not claim that the ACE-V process was infallible or
absolutely certain, and his opinions based on the process were
expressed as "opinions."
32In response to the prosecutor's question whether an
identification was "an opinion of the expert looking at the
sample for the individualization," the expert said: "Yes.
Well, it's a subjective analysis with an objective evaluation.
Again, it's a scientific method."
27
The expert's testimony on cross-examination was more
troublesome. When asked by defense counsel whether fingerprint
analysis was "a science like DNA," the expert answered that
"[i]t is a science" and that he applied "a scientific
methodology." In response to defense counsel's inquiry
regarding the subjective nature of the evaluation, the expert
answered that "it's a subjective analysis which leads to an
objective conclusion based on the -- over the 120 years of the
fingerprint science." And when defense counsel noted the NAS
report's criticism of examiners "for placing a hundred percent
infallibility, a zero error rate, . . . with respect to
fingerprint examination," the expert responded:
"The zero error rate attributed to examiners is kind of a
fallacy. The zero error rate is more attributed to the
ACE-V methodology, and whether or not the examiner applies
it correctly. I would say that there is an error rate in
the general field for the examiner, but it's on the
examiner's end, it's not on the scientific methodology."
This testimony suggested that ACE-V is a time-tested scientific
methodology leading to an objective conclusion, as opposed to a
framework that includes subjective aspects and as to which the
NAS report has raised concerns. See Gambora, 457 Mass. at 724-
725. Although acknowledging that fingerprint examiners
generally might make errors, the testimony suggested that the
ACE-V methodology itself was error-free and arguably suggested
that an examiner, who was faithful to the methodology, could
28
come to an infallible conclusion. If elicited on direct
examination, such testimony would have been error. See
Commonwealth v. Wadlington, 467 Mass. 192, 205 (2014) (would be
error for prosecutor to elicit statement that "[i]f a
fingerprint examiner trained in competency follows the
scientific methodology of ACE-V, then the error rate should be
zero").
"Because this testimony occurred on cross-examination,
however, and because there was no motion to strike, we identify
no error in this testimony, much less an error sufficient to
create a substantial likelihood of a miscarriage of justice."
Commonwealth v. Drayton, 473 Mass. 23, 30 (2015), S.C., 479
Mass. 479 (2018). See Wadlington, 467 Mass. at 206 ("there was
no motion to strike, and . . . admission under the
circumstances, particularly given the totality of the
inculpatory evidence, did not create a substantial likelihood of
a miscarriage of justice").
"[A]s in Gambora, we note that the vigorous cross-
examination of the analyst countered any possible misconception
that individualization is infallible." Fulgiam, 477 Mass. at
45. Defense counsel, for example, elicited testimony from the
expert regarding the NAS report's critique of fingerprint
analysis as not being based in a statistical model; counsel also
inquired about an incident in which the Federal Bureau of
29
Investigation erroneously identified a suspect in a 2004 train
bombing in Madrid, Spain, based on a faulty fingerprint analysis
using the ACE-V framework. Moreover, the defendant presented
his own expert, who disputed the Commonwealth's expert's
opinions as to the fingerprints on the bag.
Most importantly, "the Commonwealth's evidence linking the
defendant[] to the crime, separate and apart from the
fingerprint evidence, was strong." Fulgiam, 477 Mass. at 45.
The victim was last seen looking for the defendant, and
subsequently picked up the defendant from a quick serve food
establishment in his truck; a cup and receipt from the
establishment were in the victim's home when the victim's body
was found, along with the defendant's belongings, including his
identification card, leather jacket, and cell phone. There were
no signs of forced entry in the victim's home, and the defendant
was found with two sets of keys to the front door, which the
killer seemingly locked from the outside. On the morning of the
day that the victim's body was found, the defendant was driving
the victim's truck, which the victim had previously denied him
permission to drive, and was looking for adhesive to reattach
the sideview mirror, which was found later in the victim's home.
The defendant left a note for his brother-in-law about the
victim and fled the Commonwealth; when he was found in New
Jersey, he admitted that the victim was upset with him over the
30
sideview mirror. Given the strength of this evidence, the
erroneous testimony did not create a substantial likelihood of a
miscarriage of justice.33
d. Review under G. L. c. 278, § 33E. The defendant argues
that his mental health history, the evidence of which he has
provided to us on appeal but was not introduced at trial, and
the circumstances surrounding the killing warrant relief under
G. L. c. 278, § 33E. He contends that this was a minor
controversy that exploded into a spontaneous killing of the
victim, which cuts against premeditation, citing Commonwealth v.
Baker, 346 Mass. 107, 110, 119 (1963) (allowing § 33E relief
where "a minor controversy . . . explode[d] into the killing of
a human being" and "the [defendant and the victim] were
acquainted only slightly, if at all"), and Commonwealth v.
Williams, 364 Mass. 145, 152 (1973) (allowing § 33E relief where
defendant, who carried no weapon, reacted with violence when
discovered in robbery intended to be nonviolent such that "[t]he
entire sequence reflect[ed] spontaneity rather than
premeditation"). He also maintains that a reduction in the
33The evidence was strong as to both theories of murder in
the first degree on which the defendant was convicted. The
beating was astounding in nature, including fractured ribs,
multiple blows, and the affixing of a bag over the victim's head
with a belt, causing asphyxiation by strangulation, evidencing
extreme atrocity or cruelty. And the placing of the bag on the
head after the beating, while the victim was still living,
evidenced deliberate premeditation.
31
degree of guilt is warranted based on his relationship with the
victim and his mental illness, citing Commonwealth v. Seit, 373
Mass. 83, 94-95 (1977) (allowing § 33E relief where "no
indication of animosity between [the defendant and the victim]
until the episode in suit" and defendant may have acted in
excessive self-defense or in passion upon provocation or sudden
combat), and Commonwealth v. Concepcion, 487 Mass. 77, 95, cert.
denied, 142 S. Ct. 408 (2021) (allowing § 33E relief where
defendant was fifteen years old, functioned at level of ten year
old, suffered from depression and posttraumatic stress disorder,
and shot victim under pressure by members of gang). The
defendant directs the court to his mental health records,
indicating a history of hospitalizations for mental health
issues.
The Commonwealth responds that the defendant's personal
characteristics do not, by themselves, warrant a reduction, see
Concepcion, 487 Mass. at 95 ("Mental illness alone is generally
insufficient to support a verdict reduction under G. L. c. 278,
§ 33E . . ."), and the verdict as to premeditation is otherwise
supported by the weight of the evidence, see Commonwealth v.
Ruci, 409 Mass. 94, 98 (1991) ("a primary consideration is
whether the killing reflects spontaneity rather than
premeditation" [quotation and citation omitted]).
32
"Our duty is not to sit as a second jury but, rather, to
consider whether the verdict returned is consonant with justice"
(quotation and citation omitted). Commonwealth v. Dowds, 483
Mass. 498, 512 (2019). Baker and Williams are inapt; this is
not a case in which "[t]he weight of the evidence . . .
indicates murder in the second degree" because "[t]he entire
sequence reflects spontaneity rather than premeditation."
Williams, 364 Mass. at 151-152. See Baker, 346 Mass. at 119("justice will be more nearly achieved by concluding that the
intention to shoot was formed in the heat of sudden affray or
combat"). The circumstances of the patricide, shortly after
reconciliation, do not affect the justness of the verdict. The
defendant struck the victim multiple times in the head and
torso. While the victim was still living, the defendant placed
a garbage bag over his head and tied a belt around his neck,
strangling him. "The facts of this case do not even hint of
spontaneity." Ruci, 409 Mass. at 98.
The defendant chose not to present to the jury an argument
that his mental illness prevented him from forming the requisite
intent, instead exercising his constitutional right to argue
that the Commonwealth had insufficient evidence to prove him
guilty beyond a reasonable doubt. The defendant made this
choice, and there is no suggestion that he was incompetent to
make it. See Commonwealth v. Velez, 487 Mass. 533, 544 (2021)
33
("a competent defendant maintains autonomy over the decision
whether to assert a mental health defense"). See also McCoy v.
Louisiana, 138 S. Ct. 1500, 1505 (2018) ("it is the defendant's
prerogative, not counsel's, to decide on the objective of this
defense: to admit guilt in the hope of gaining mercy at the
sentencing stage, or to maintain his innocence, leaving it to
the State to prove his guilt beyond a reasonable doubt");
Commonwealth v. Miranda, 484 Mass. 799, 818-819, cert. denied,
141 S. Ct. 683 (2020), quoting Jones v. Barnes, 463 U.S. 745,
751 (1983) (under Sixth Amendment to United States Constitution
and art. 12 of Massachusetts Declaration of Rights, "the
defendant always retain[s] exclusive authority to make 'certain
fundamental decisions' regarding his own defense, including
whether to insist on his innocence or accept responsibility for
a lesser offense"). We will not now undo this decision.
After a review of the entire record, we discern no error
warranting relief under G. L. c. 278, § 33E.
Judgments affirmed.