Com v. Heang

February 15, 2011

Commonwealth v. Pytou Heang 
458 Mass. 827 (2011)

Supreme Judicial Court of Massachusetts

Homicide, Firearms, Evidence, Criminal, Jury and Jurors. 

The defendant appealed from a conviction of murder in the first degree and felony murder. He claimed that he should be granted a new trial because the trial judge improperly admitted into evidence expert forensic ballistics testimony identifying a particular gun as the weapon used in the shootings, expert testimony regarding gunshot residue testing, statements made by the defendant to police requesting legal counsel and denying commission of the crime, two statements by a codefendant, and a videotape of security footage from a store. He also objects to the judge’s voir dire of prospective jurors, challenges the judge’s decision on how to handle a letter from a juror sent after the conclusion of trial, and contends that the evidence presented at trial was insufficient to support the jury verdict and that the judge’s denial of his motion for a required finding of not guilty was improper. The conviction was affirmed. 

Facts 

Three men forced their way into the home of Judith Finnerty. In the process of this break-in, the men shot and killed Finnerty's husband and daughter. Lynn police apprehended the men that night. The defendant, Pytou Heang, was brought into the Lynn police station later that night for questioning. The defendant denied participation in the crime and asked for counsel during this interview, which was recorded. The other two co-defendants, Chon Son and Phap Buth, were also apprehended, and various items of evidence including two handguns were discovered 

Evidence presented at trial included DNA evidence that identified the defendant as a potential contributor to at least five of the items, the testimony of a forensic science department manager relating to the discovery of gunshot residue seized from the three co-defendants, and the testimony of a forensic ballistics expert who concluded that the projectiles and casings found at the scene had come from the handguns discovered on one of the co-defendants. 

The defendant was convicted of murder in the first degree on the theories of deliberate premeditation and felony murder as well as for armed home invasion and unlawfully carrying a firearm. 

Issue 1: Was the evidence presented at trial sufficient for a reasonable jury to find the defendant guilty beyond a reasonable doubt? 

Yes, the evidence presented at trial was sufficient for a jury to convict on first degree murder with premeditation and felony murder. The evidence relied upon included identification evidence, forensic evidence, the defendant’s proximity to the scene, and statements defendant made to witnesses after the shooting and to the police 

Issue 2: Was the admission of forensic ballistics or firearms identification evidence improper, particularly when the judge denied a Daubert-Lanigan hearing? 

No, there was no prejudicial error here. Though the traditional reliability of forensic ballistics evidence has been called into question by skepticism over the existence and identifiability of individual characteristics of bullets, it is not an abuse of discretion to allow the evidence in and deny a Daubert-Lanigan hearing where the expert testimony is presented to help the jury understand the evidence, the judge limits the expert’s direct testimony by ordering the expert to tell the jury his impressions do not preclude other possibilities to a scientific certainty. Allowing the conduction cross-examination without a similar limitation is permissible since the testimony’s reliability was limited on direct. 

Given the current state of dispute over the use of forensic ballistics testimony, the court offered the following guidelines for the use of such testimony: 

1. The examiner must adequately document the findings or observations before trial so defense counsel can adequately cross the expert. 
2. The forensic ballistics expert should explain different theories and methodologies to the jury at the outset
3. The forensic ballistics expert may present his expert opinion to a “reasonable degree of ballistic certainty.” If the markings are not distinctive enough to warrant this, the expert may offer an opinion based on characteristics that are found to narrow the scope of possible firearms. 

Where these steps are followed the evidence is sufficiently constrained and thus admissible. 

Issue 3: Was admission of gunshot residue testimony in error due to irrelevance or, in the alternative, because any relevance was outweighed by the evidence’s prejudicial effect?

No. The court finds the evidence was relevant in that it suggested the defendant and codefendants had recently fired a gun, been in the presence of someone who had, or come into contact with someone who had, which made it more probable that the defendant was one of the armed intruders. Probative value was not substantially outweighed by prejudicial effect as it was left to jury to decide which explanation was more probable. 

Issue 4: Was admission of defendant’s denials and invocation of right to speak to an attorney in error? 

No. This issue was not objected to at trial, and so is reviewed for substantial likelihood of miscarriage of justice. While evidence that accused invoked right to counsel or right to remain silent is not generally admissible, it is admissible when the admission is due to defendant’s own tactical decision. The defendant and defense counsel apparently found value in having the jury hear the defendant’s denials. 

Issue 5: Was the admission of statements of codefendant Phap Buth a violation of Crawford v. Washington given that Buth did not testify at trial and thus defendant did not have the opportunity to cross examine him? 

No, because it was not provided for the truth of the matter asserted. The Crawford rule redering  testimonial out-of-court statements inadmissible applies only to hearsay statements. Admission of Buth’s out-of-court statements was permissible despite the lack of cross examination because the testimony was offered to show inconsistency and context, not for the truth of what he said. 

Issue 6: Was admission of surveillance tape evidence error because it was not authenticated by a representative of the store which taped it? 

No. The video was authenticated by Son’s girlfriend, who was at the store with Son that night. Her testimony is sufficient to authenticate. 

Issue 7: Was the judge’s question to prospective jurors during voir dire about whether jurors could remain impartial if presented with evidence regarding gangs or gang-related activity in error? 

No. A judge must examine jurors fully regarding potential bias where there is a substantial risk they may be influenced by external factors. The point of the questioning is to exclude jurors who would be prejudiced and its effect is to impanel impartial jurors. 

Issue 8: Were the irregularities in the jury deliberation process so significant that the judge should have made a post-verdict inquiry of the jury? And did the judge err by notifying counsel of his decision on the matter before allowing them an opportunity to be heard? 

No. Jury deliberations are inviolable unless some external information has been brought into jury deliberations or a juror manifests racial or ethnic bias. Mere pressure by jurors on jurors to decide the case a certain way does not rise to this level of significance. In addition, though the judge should generally give counsel an opportunity to be heard before deciding the issue, any error here was not prejudicial as the defendant had an opportunity to be heard since the judge immediately informed counsel of the receipt of the juror’s letter, his decision, and his reasoning. 

Issue 9: Is there any basis for the court to reduce the defendant’s sentence or order a new trial? 

No. There was no error that produced a substantial likelihood of a miscarriage of justice or any other reason to order a new trial. 

Judgment affirmed. 

-- Prepared by RAA