Commonwealth v. Kris N. Ferreira (October 21st, 2011)
Docket No. SJC-10902
Massachusetts Superior Judicial Court
Facts: The victim was a pizza delivery man. When delivering a pizza, two men pushed him down and demanded that he give them his money. One of the men told the victim they didn’t want to hurt him, then showed him a paring knife. Then they took his money and left. The victim gave the police the descriptions and picked out photographs of the potential robbers. He identified Shawn Pacheco as the hooded one who had first grabbed him. He also identified the defendant as the second person involved, but at one point said he was only 80% sure about that. Pacheco testified, under an order if immunity, that he had committed the robbery with another person (Dias). Dias also testified he committed the robbery, and he testified without the grant of immunity. The defendant also called Kristen Bennett testified the defendant was at her place at the time, babysitting her children with his girlfriend cause she was recovering from a medical procedure.
In the closing arguments, the prosecutor tried to discredit the 80% statement and the testimonies of Pacheco and Dias. The other point the prosecutor made was that the victim was shown two arrays of 7 pictures each, and out of all the possible combinations, he picked the two that were good friends; the defendant even has a child with Pacheco’s sister.
Issue #1: Is the prosecution’s closing statement misleading?
Yes. The prosecution’s closing argument basically said that there was a 1 in 49 chance the victim would have picked out those two robbers, and therefore a 98% chance that that the victim had accurately identified the defendant. But, the victim is not randomly selecting pictures; he is basing his picks on his observations. Also, the victim said he saw the victim in the hoodie (Pacheco) a lot more, so he easily recognized him, then he had a 1 in 7 chance of picking the defendant at random from the second array. And since the other pictures were of people from Fall River the similar age as Pacheco, it wouldn’t be surprising that he would happen to know a person from the other photographs.
Also, if the Commonwealth wanted to offer analysis of mathematical probability, it would have to be offered through expert testimony. This way the defense would have a chance to challenge the admissibility of the expert testimony under Daubert v. Merrel Dow, and the judge would look to see if the Commonwealth established the five requirements necessary to admit expert testimony in a criminal case.
Issue #2: Did the errors in the prosecutor’s closing argument result in a substantial risk of a miscarriage of justice?
Yes. The closing argument could lead the jury to put undue weight on mathematical probability analysis that did not constitute proof beyond a reasonable doubt. The victim had admitted uncertainty as to the accuracy of the identification. On top of that, Pacheco testified that he committed the robbery with Dias; Dias testified to committing the robbery with Pacheco; and there was testimony that put the defendant in a different place at the time of the crime. The jury apparently did not consider these facts, but they cannot be ignored when considering whether there was a substantial risk of a miscarriage of justice.
Conclusion: The prosecutor’s closing argument created a substantial risk of a miscarriage of justice, therefore the judgment is reversed, the verdict and habitual offender finding are set aside. The case is remanded to the Superior Court for a new trial.
Prepared by KP