MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial, the defendant, Brunno H. Lacerda, was found guilty of one count of breaking and entering in the daytime with intent to commit a felony, G. L. c. 266, § 18, and one count of larceny under $1,200, G. L. c. 266, § 30 (1). After a bifurcated trial, the trial judge also found the defendant guilty of being a common and notorious thief. On appeal, the defendant argues that (1) the testimony of a police officer
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that there has been “no evidence of two fingerprints being identical” was improper as it framed fingerprint analysis in absolute terms, (2) the trial judge erred when he failed to strike a witnesss testimony, even though she had memory loss, and violated the defendants confrontation clause rights, and (3) the prosecutors closing argument improperly relied on facts not in evidence. We affirm.
Background. We summarize the facts the judge could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On September 21, 2019, Vanderlee Batista returned home and found that his window air conditioning unit was disturbed, his front door -- that had been locked when he left - - was ajar, and that ten of his watches were missing. Other items were moved. Batista did not know the defendant and had not given him permission to enter the apartment.
That same day, the defendant approached Kimberly Montanez, whom he knew, and said “he ha[d] some watches to get rid of” but that he did not have identification. Montanez had identification and went with the defendant to a Cash Point pawn shop. The defendant placed a plastic bag on the floor, and she saw about ten watches inside it. She sold a single gold Citizens watch for thirty dollars. She gave the defendant the money, and he gave her some of it. She originally testified that she could remember seventy-four percent of the day in question but later stated that due to injuries, she could only remember fifty-four percent of the day in question and that she did not “even recall hardly that day.” The Commonwealth played a video recording of the defendant and Montanez selling the watch to the shop.
Barnstable Police Officer Spencer Jackson photographed the gold Citizens watch. Batista identified that watch as one of his missing watches. Police recovered that watch from Cash Point; the other nine watches were not recovered.
Lacerda was arrested that evening. The defendant told the police that he went to the pawn shop with Montanez because he did not have a license. During the booking process, the defendants fingerprints were taken. Officer Bryan Skinner of the Barnstable County Sheriffs Department processed the scene at Batistas apartment and obtained fingerprints from the windowsill and two from the air conditioner. At trial, Skinner testified to his qualifications and that “fingerprints have been used for over [one hundred] years in the criminal justice setting, and in that time frame there has been no evidence of two fingerprints being from the same -- or two fingerprints being identical.” Skinner also testified to his opinion that the prints were “deposited by the same person who deposited the [prints] on the known standard.”
Officer Anthony Manfredi, a criminal identification officer with the Barnstable County Sheriffs Department, conducted an independent fingerprint analysis; he was not informed of Skinners conclusions. He testified that in his opinion a palm print found at the scene matched the defendants palm print and two other latent prints also matched the defendant.
Discussion. 1. Fingerprint evidence. The defendant concedes that Skinner properly testified regarding his opinion that the prints at the crime scene were “deposited by the same person who deposited the [prints] on the known standard.” Nor does he challenge Manfredis opinion testimony about the fingerprints. Instead, he argues that Skinners preliminary testimony, to which no objection was made, framed the subsequent fingerprint analysis in absolute and infallible terms and was crucial to connecting the defendant to the apartment and watches, creating a substantial risk of a miscarriage of justice. See Commonwealth v. Almeida, 42 Mass. App. Ct. 607, 615 n.10 (1997).
“Testimony 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.” Commonwealth v. Gambora, 457 Mass. 715, 729 n.22 (2010). Fingerprint expert witnesses “must clearly frame their findings in the form of an opinion to avoid improper testimony.” Commonwealth v. Fulgiam, 477 Mass. 20, 44 (2017).
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Stating that fingerprints are unique, as Skinner did, is not the same as stating that a match means with absolute certainty that the person who gave the known print left the latent print. In any event, even assuming the one statement by Skinner was in error, we do not discern a substantial risk of a miscarriage of justice. The evidence of the defendants guilt was strong. The defendant possessed the victims Citizen watch on the day it was stolen and also possessed about the same number of watches that were taken from his apartment. The defendant provided the watch to Montanez to sell to the pawn shop because he did not have identification. The transaction was recorded on video. In addition, the challenged testimony was brief, Skinner did properly testify regarding his opinion in this case concerning the defendants fingerprints, and another expert also testified to his opinion that prints from the defendant were a match for prints found at the scene. Finally, we presume that a judge conducting a bench trial “correctly instructed himself as to the manner in which evidence was to be considered in his role as factfinder.” Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). See Commonwealth v. Milo M., 433 Mass. 149, 152 (2001) (judge in bench trial is presumed to have applied law correctly).
2. Montanezs testimony. Montanez testified that as a result of a car accident and coma she lost between fifty-four and seventy-four percent of her memory, and that she had no memory of the events in the interior of the pawn shop. At trial, the defendant moved to strike Montanezs testimony. The defendant argues that the trial judge erred when he failed to strike Montanezs testimony, and that failing to do so violated his confrontation clause rights under both the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The defendant claims that Montanezs inability to recall critical events left the defendant unable to cross-examine her and as a result his defense was compromised. We disagree.
The defendant moved to strike the testimony at trial. Therefore, “we evaluate the admission of constitutionally proscribed evidence to determine whether it was harmless beyond a reasonable doubt.” Commonwealth v. Wardsworth, 482 Mass. 454, 458 (2019), quoting Commonwealth v. Nardi, 452 Mass. 379, 394 (2008).
The confrontation clause requires that a defendant be given “adequate opportunity to cross-examine adverse witnesses.” United States v. Owens, 484 U.S. 554, 557 (1988). There are circumstances in which a witnesss refusal to answer questions during cross-examination has been held to deprive the defendant of his right to confrontation when that witnesss prior statements have been introduced during direct examination. See Commonwealth v. Kirouac, 405 Mass. 557, 560 (1989) (confrontation rights violated where complainant witness, aged six, “resisted answering nearly all questions put to her on cross-examination”). See also Commonwealth v. Funches, 379 Mass. 283, 293 (1979) (confrontation rights violated when key prosecution witness testified extensively on direct but then asserted privilege against self-incrimination when cross-examined on same subject).
However, the confrontation clause does not guarantee “cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Owens, 484 U.S. at 559, quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987). A defendant is not assured that a witness will “refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.” Delaware v. Fensterer, 474 U.S. 15, 22 (1985). Nor does it guarantee a witness whose “memory [is] perfect (or even good).” Kirouac, 405 Mass. at 560. “To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness testimony.” Fensterer, supra.
Here, the defendant was not denied his confrontation clause rights. Unlike in Kirouac, 405 Mass. at 560, where the witness resisted answering nearly every question on cross examination, or Funches, 379 Mass. at 293, where the witness refused to answer by invoking their Fifth Amendment privilege against self-incrimination, Montanez answered questions on cross-examination, and the entire interaction in the pawn shop was recorded with audio and video. The defendant was given a full and fair opportunity to probe and expose contradictions in Montanezs testimony and thus draw those infirmities to the attention of the trial judge. See Fensterer, 474 U.S. at 22. Montanez was unable to remember conversations with the clerk at the pawn shop and denied making statements that the defendant showed she made on video. The defendant appropriately attempted to impeach Montanezs credibility by exploring those discrepancies during cross-examination and pointed them out during closing arguments. Her inability to answer every question during cross-examination “presents none of the perils from which the Confrontation Clause protects defendants in criminal proceedings.” Fensterer, supra at 21.
3. The prosecutors closing argument. “A prosecutor may not misstate evidence or refer to facts not in evidence in a closing argument.” Commonwealth v. Goddard, 476 Mass. 443, 449 (2017). Because there was no objection, we consider only whether, if we find error, there was a substantial risk of a miscarriage of justice. See Almeida, 42 Mass. App. Ct. at 615 n.10.
Although we agree that the prosecutor stepped beyond the evidence when he stated that Montanez remembered the color of the plastic bag that the defendant was carrying, we perceive no resulting substantial risk of a miscarriage of justice. The one misstatement, in the context of the entire closing argument and the evidence presented at trial, does not raise a serious doubt as to whether the result of the trial might have been different had the error not been made. The comment was fleeting and, “because this was a jury-waived trial, we are not concerned with the effect of the prosecutors misstatement on a jury.” Commonwealth v. Daley, 66 Mass. App. Ct. 254, 257 (2006).
Judgments affirmed.
FOOTNOTES
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. Both parties refer to the witness as a State trooper. We use officer because that was his testimony.
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. In a decision issued after the defendants trial, the Supreme Judicial Court emphasized that when an expert testifies to a fingerprint match, they “must state expressly that the match constitutes the experts opinion.” Commonwealth v. Robertson, 489 Mass. 226, 238 (2022). The court continued that it is insufficient “for the expert to avoid testifying that the match is one hundred percent certain. If an expert witness does not clarify that his or her fingerprint testimony is an opinion, then the prosecutor must elicit this clarification even if the defendant does not object.” (Citation omitted.) Id.