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November 18, 1977


Suffolk. Indictment found and returned in the Superior Court on December 16, 1974. The case was tried before Roy, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Kaplan, Liacos, & Abrams, JJ.


Evidence, Fingerprints; Relevancy and materiality; Opinion: expert; Cross-examination. Practice, Criminal, Argument by prosecutor.

The opinion of the court was delivered by: Hennessey

At a trial in which there was abundant evidence linking the defendant to a murder committed in an apartment, a coffee cup found there immediately after and bearing his fingerprints was properly admitted in evidence, notwithstanding the absence of proof that the fingerprint was placed on the cup during the commission of the crime. [702-703]

Uncontroverted testimony from a police officer who had taken the defendant's fingerprints on a standard fingerprint card at the time of his arrest was properly admitted at his murder trial on the officer's identifying the defendant and stating that the proffered card was the one used in the fingerprinting, notwithstanding the absence of an accounting of the custody of the card between the arrest date and the trial date. [703-704]

At a murder trial, testimony of the Commonwealth's expert that a fingerprint on a coffee cup was "identical" with a finger of the defendant was not erroneously admitted as an expression of an opinion as to an ultimate fact for the jury. [705]

On cross-examination of prosecution witnesses at a murder trial, there was no error in excluding, following testimony about certain photographs admitted as exhibits, further testimony about them from a witness who had not been present when they were taken [705-706]; there was no error in excluding, as to a witness who had been extensively cross-examined as to his drug addiction at the time the defendant reenacted the crime, testimony concerning the witness's entry into an addiction center five days after the reenactment [706]; and there was no error in excluding questions to the patrolman who had discovered the victim's body as to whether he "had some information" about a woman who may have been present at the scene prior to the patrolman's arrival there [706-707].

The prosecutor's closing argument at a murder trial was not improper by reason of his asking the jury to act with courage. [707]

The defendant Michael V. LaCorte (LaCorte) was indicted for murder in the first degree in connection with the death of Richard White in White's Boston apartment on May 29, 1974. After a five-day trial in the Superior Court, a jury found LaCorte guilty of murder in the second degree, and the Judge sentenced him to life imprisonment. The defendant's assignments of error are here pursuant to G. L. c. 278, §§ 33A-33G, as amended. We conclude that there was no error.

Responding to a call from a neighbor, Boston police officers entered White's Marlborough Street apartment at approximately 6:05 A.M. and found White dead on the floor, bleeding from multiple stab wounds, a scarf tied around his neck like a noose. The jury were warranted in finding the following facts based on the Commonwealth's evidence. LaCorte had been with White on the night in question. He was seen in a restaurant with White about 11 P.M., and a third man was present with them. LaCorte and the unidentified man left together, but were seen with White again outside the restaurant about 1:25 A.M. At that time, the men seemed to be arguing. White was trying to walk away from the others, but LaCorte kept tugging at White's jacket and led him in another direction, saying, "Come on here, come on this way." About 6 A.M. a neighbor in an apartment adjacent to White's was awakened by loud screaming. Looking out her window, she saw two men running from White's building accompanied by a woman. In White's apartment, police found two cardboard coffee cups, one of which bore fingerprints which, in the opinion of the Commonwealth's expert witness, were "identical" to prints taken from LaCorte at the time of his arrest. Approximately four months later, in October, 1974, LaCorte bragged to a group of friends about crimes he had committed in the past, including a murder -- which he reenacted for them. He related how he and a friend had "roundhoused" a Marlborough Street man who had "ripped us off." He illustrated his story by standing up one of his listeners, spinning him around, and pretending to stab him repeatedly at each turn. LaCorte told his friends -- two of whom testified at trial -- that his victim had fallen through a glass window during the struggle. Police found a broken window in White's apartment, and tests revealed that pieces of the broken glass were stained with blood.

1. The defendant argues that the cardboard cup bearing his fingerprint should have been excluded at trial because the prosecution failed to establish that the fingerprint was placed thereon in the apartment during the commission of the crime. This foundation, the defendant argues, is necessary to eliminate the possibility that LaCorte may have left the fingerprint during a previous visit to the apartment unrelated to the crime. Without it, he seems to argue, the evidence is irrelevant. We disagree. Certainly fingerprints found in the apartment of the victim immediately after the homicide have some tendency to prove the identity of the killer. It is this rational tendency to prove an issue in the case that makes the cup relevant and, subject to other rules, admissible. Commonwealth v. Ross, 361 Mass. 665, 679-680 (1972), judgment vacated, 410 U.S. 901, aff'd on rehearing, 363 Mass. 665, cert. denied, 414 U.S. 1080 (1973). Commonwealth v. Durkin, 257 Mass. 426, 427-428 (1926). The defendant's argument goes only to the weight of the evidence, not to its admissibility, and it is for the jury to determine -- after listening to cross-examination and the closing arguments of counsel -- what significance, if any, they will attach to the discovery of the defendant's fingerprints at the scene of the crime. *fn1 See United States v. Kahaner, 317 F.2d 459, 471-472 (2d Cir. 1963); 1 J. Wigmore, Evidence § 29, at 411 (3d ed. 1940).

That is not to say, of course, that the mere discovery of the defendant's fingerprints at the scene of the crime, without further evidence linking the defendant to the crime, would be sufficient identification to support a conviction. Courts universally consider the fingerprint comparison to be an adequate and reliable method of identification. 2 J. Wigmore, Evidence § 414, at 390 (3d ed. 1940). See, e.g., Commonwealth v. Bartolini, 299 Mass. 503, 513, cert. denied, 304 U.S. 565 (1938). Moreover, when the prosecution can establish that fingerprints found at the scene of the crime could have been impressed only during the commission of the crime, fingerprint evidence pointing to the defendant almost certainly will support a conviction. See Commonwealth v. Jones, 360 Mass. 498, 501 n.2 (1971); State v. Miller, 49 Ohio St. 2d 198 (1977). Nevertheless, when fingerprints constitute the only identification evidence, most jurisdictions require the prosecution to establish beyond a reasonable doubt that the fingerprints in fact were placed at the scene during the commission of the crime. E.g., United States v. Corso, 439 F.2d 956, 957 (4th Cir. 1971); State v. Mayell, 163 Conn. 419, 426 (1972); Annot., 28 A.L.R.2d 1115, 1155-1157 (1953). But cf. Borum v. United States, 380 F.2d 595, 598-602 (D.C. Cir. 1967) (Burger, J., Dissenting), cited with approval in Commonwealth v. Jones, supra. We need not reach this question because in this case the prosecutor introduced abundant evidence -- including the defendant's own admissions -- linking him to the murder in question.

2. Defense counsel argues that a standard fingerprint card, kept as an arrest record by the Boston police department, was not adequately authenticated as one bearing the prints of the defendant and thus could not furnish a relevant standard against which the expert witness could compare the fingerprint found in White's apartment. We disagree. The Commonwealth offered the card through the police officer who fingerprinted LaCorte at the time of the arrest. The officer testified that on October 29, 1974, he took the fingerprints of a person -- whom he identified in court as the defendant -- and recorded them, together with that ...

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