RELEASE FOR THE PUBLICATION OF JUDICIAL OPINION

Transcription

1 RELEASE FOR THE PUBLICATION OF JUDICIAL OPINION INSTRUCTIONS: A copy of this form needs to be completed entirely and attached to each and every opinion sent to Susan Henderson. Prior to sending an opinion for publication it is imperative that it be docketed and issued by the Court thus certifying that this is a true copy. CASE NAME: Commonwealth v. Jason Meeks Commonwealth v. Michael Warner COUNTY: Suffolk CIVIL ( ) CRIMINAL ( X ) DOCKET NUMBER(s): ; DATE DOCKETED: September 28, 2006 JUDGE s NAME: Honorable Raymond Brassard NAME and TITLE of person sending opinion: Susan Henderson, Judicial Secretary II ** NOTE: If the person sending the opinion is not the person who typed the opinion, please note below. **Name and Title of Person: or **Typist Unknown: X C:\Documents and Settings\user_n\My Documents\Court\Published Opinions\Electronic Form\Commonwealth v Jason Meeks Commonwealth v Michael Warner Release.wpd :sh

2 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CRIMINAL ACTION Nos COMMONWEALTH vs. JASON MEEKS COMMONWEALTH vs. MICHAEL WARNER FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANTS MOTIONS IN LIMINE TO EXCLUDE BALLISTICS EVIDENCE INTRODUCTION FINDINGS OF FACT I. Basics of the Two Cases A. Commonwealth v. Warner B. Commonwealth v. Meeks II. Tour III. Firearms Examination A. The Manufacturing Process B. The Firing Process C. The Specifics of Firearms Examinations IV. Evidence in Support of the Reliability of the Field of Firearms Examination A. Officer Martin Lydon B. Sergeant Detective Catherine Doherty C. Mary-Jacque Mann D. Peter Striupaitis V. Opponents of the Field of Firearms Examination A. Adina Schwartz B. David Lamagna RULINGS OF LAW I. Standard of Review II. General Acceptance

3 III. Other Daubert Factors A. Testing B. Error Rate C. Objective Standards D. Peer Review and Publication CONCLUSION INTRODUCTION Defendant Jason Meeks ( Meeks ) and defendant Michael Warner ( Warner ) have been charged with murder in two separate, unrelated incidents. Their cases are joined in this motion solely for the purpose of seeking the exclusion of ballistics evidence in each of their respective cases in their separate Daubert-Lanigan motions. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993); Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994). Officer Martin Lydon ( Lydon ) and Sergeant Detective Catherine Doherty ( Doherty ), both of the Firearms Examination Unit ( Unit ) at the Boston Police Department ( BPD ) evaluated the firearms identification evidence in both Meeks case, Commonwealth v. Meeks, Crim. No (Suffolk Super. Ct.) and Warner s case, Commonwealth v. Warner, Crim. No (Suffolk Super. Ct.). This court conducted an evidentiary hearing over the course of ten days, from Wednesday, May 17, 2006, through Friday, June 2, 2006, during which time this court heard testimony from seven witnesses. For the following reasons, the defendants motions to exclude firearms identification evidence in their respective cases are denied. FINDINGS OF FACT The following facts are taken from the witnesses affidavits and their testimony at the evidentiary hearing, which this court found credible except where noted. 3

4 I. Basics of the Two Cases As noted above, Warner s and Meeks cases have no connection beyond the legal argument regarding the exclusion of ballistics evidence at their trials and the fact that Lydon and Doherty conducted the ballistics examinations in both cases. Although the Unit, and Lydon in particular, did not initially follow good firearms examination practices with respect to either case and the initial documentation of the examinations was inadequate, the later examinations were in accord with general practice. Additionally, the evidence was maintained in the same condition since the time of recovery, 1 and thus was available for the Unit s firearms examiners to reexamine. A. Commonwealth v. Warner 1 All evidence is handled in the same manner. First, all evidence carries a CC number assigned to the case that never changes; the evidence usually receives this number at the scene. The Unit receives the evidence through a window from the hallway into the Unit. At this time, the Unit gives the evidence a Unit number, or BU#, and logs in the evidence to the Ballistics Case Management System using both the CC# and the BU#. The BU# is an internal number that only the Unit uses to identify the evidence. 4

5 On December 19, 2000, Lydon responded to a crime scene at 66 Walnut Avenue, Roxbury, Massachusetts, where the alleged murder of John Rodrigues ( Rodrigues ) had occurred. At that crime scene, Lydon recovered two CCI brand.25 caliber spent 2 shell casings ( Item #2 and Item #3 ), one.22 caliber spent shell casing ( Item #5 ), and one.25 caliber spent copper jacketed bullet ( Item #6 ). Lydon later retrieved from Boston Medical Center the.25 caliber spent copper jacketed bullet removed from Rodrigues body. 3 Lydon examined under the comparison microscope the two shell casings recovered from the scene, Items #2 and #3. After conducting this side-by-side examination, he found that they shared sufficient ballistics characteristics to lead to the determination that both were fired from the same weapon. Lydon Warner Report, Exhibit 8, 4 at 1. Lydon then compared under the microscope the spent copper jacketed bullet recovered from the scene, Item #6, with the spent copper jacketed bullet removed from Rodrigues body. On these spent bullets, Lydon examined the land-engraved areas, groove-engraved areas, and striations 5 and concluded that they had 2 During his testimony, Lydon defined spent as meaning the piece of ammunition had been fired through the weapon. 3 Lydon testified that only evidence retrieved from a crime scene receives an item number, therefore this bullet removed from Rodrigues body does not have a number. As indicated below with respect to bullets removed from the alleged victim in Meeks, if there had been more than one bullet removed from Rodrigues body, Lydon would have numbered or lettered them in order to be able to distinguish between or among them. Evidence recovered from a crime scene such as a bullet or shell casing is placed in a small envelope; evidence recovered from an alleged victim s body is kept in a small bottle. this court. 4 Except where otherwise noted, the cited exhibits are those admitted at the hearing before 5 As discussed further below in the context of the manufacture of firearms, the barrels of pistols and revolvers have raised areas called lands and depressed areas called grooves. An underlying premise of firearms examination is that, as the bullet travels through the barrel upon 5

6 been fired from the same [as yet unrecovered] weapon. Id. 6 firing, the lands and grooves are imparted upon the bullets; the land-engraved areas on the spent bullet are depressed and the groove-engraved areas on the spent bullet are raised. The striations are the lines that appear within the land-engraved and groove-engraved areas. Another underlying premise of firearms examinations is that firearms examiners can examine those striations under the comparison microscope and identify or eliminate the spent bullet as having been fired from a specific firearm. 6 It is not uncommon... for an examiner to write a report that states that sufficient microscopic agreement is present to suggest that the same tool made the series of toolmarks, but that a conclusive opinion can be rendered only after an examination of the responsible tool. Once the examiner has the tool, the working surface [e.g., the barrel] can be evaluated to determine if the tool produces a unique toolmark, or is one that contains subclass characteristics [discussed further below] that are capable of being transferred to toolmarked surfaces. Alfred Biasotti & John Murdock, Scientific Issues, in 4 David L. Faigman et al., Modern Scientific Evidence - The Law and Science of Expert Testimony 36:7, at 410 ( ed.) (Exhibit 83A) (emphasis in original). Given this apparent practice of firearms examiners, it may well be a valid criticism that Lydon identified the evidence as having been fired from the same firearm prior to actually possessing the firearm. As discussed further below, however, Lydon reexamined the evidence once a firearm was recovered and reached the same conclusion of identification. Therefore, any arguable unreliability was ultimately negated with the comparison 6

7 between the test fires and the evidence. 7

8 On December 24, 2000, an Intratec.25 caliber semi-automatic pistol, Model Protec - 25 ( Intratec ), 7 was recovered in Brookline, Massachusetts. Lydon did not learn of the existence of this firearm until July 1, 2001, when Detective Juan Torres ( Torres ) of BPD s Homicide Unit, accompanied by a Brookline Police Officer, asked Lydon to examine the Intratec in connection with the Rodrigues homicide. 8 Torres had information to the effect that the Intratec could have been involved in the Rodrigues homicide, 9 but he did not divulge to Lydon any of the details he had received. He merely asked Lydon to determine if the Intratec was an operable 7 Ronald Borgio, a Smith & Wesson employee who testified on behalf of the Commonwealth, examined the Intratec firearm allegedly involved in the Rodrigues homicide. He noted the significant damage to the weapon, namely that the grips had been removed from the side area; that the side had been smashed in with significant force to cause deformation and to preclude the removal of the magazine without tools; and that part of a spring was protruding from the side of the frame. He observed what appeared to be significant corrosion on the interior of the barrel and minor rusting on the exterior of the barrel. Die-casting had been used for the frame and a low-quality steel had been used for the barrel, both of which are inferior materials to those used by Smith & Wesson. Although he does not know the manufacturing specifications for this type of pistol, Borgio could tell from his visual examination that the barrel had been manufactured out of a solid piece of steel and that it appeared to have been drilled, and, as the hole was straight and there were no gross marks from the drill, it was likely reamed and broached, terms that will be discussed further below. See Borgio Hearing Testimony, p. 78, ll He also observed that the breech face had been made with a rotary tool because the breech face does not go through the ejector port. The Intratec s extractor looked thinner to Borgio than that in its Smith & Wesson counterpart and it looked like it had been made out of sheet metal, thereby suggesting a different machining process than that used in the Smith & Wesson. 8 At first, this Intratec weapon did not enter the Unit through the window because its relevance was unknown. The firearm would have been returned to Brookline if nothing had come of Lydon s test firing. Once Lydon identified that firearm as having been involved in the Rodrigues homicide, it was logged in to the Unit. 9 Torres testified that he had previously asked an examiner in the Unit to conduct an examination of ballistics evidence on two other, unrelated occasions; on one occasion, the examiner found a match, and on the other occasion, the examiner found an exclusion. 8

9 firearm and, if it was, to conduct a test fire and to compare the test fires to the ballistics evidence connected to the Rodrigues homicide. Lydon understood the matter to be one of great urgency Lydon also testified that he regularly receives hot tips that require ballistics examinations, the majority of which result in exclusions. 9

10 When Lydon received the Intratec on July 1, 2001, he found that it was not in good condition, and that it looked like a vehicle had driven over it. With some difficulty, and using only his hands and no tools to load ammunition into the Intratec, 11 Lydon managed to fire a test round into a water tank; Torres and the Brookline Police Officer were present during the test firing. 12 Lydon s notes do not indicate how many test fires he performed that day. While on the stand, however, Lydon looked inside the evidence envelopes, and he testified that he used aluminum CCI ammunition for one of the test fires ( CCI test fire ) and Federal Cartridge ammunition for two of the test fires ( Federal Cartridge test fires ). See Exhibit 50 (envelope containing test fires). The shells retrieved at the scene were both brass. Lydon retrieved the spent test fire shell casings, and, that same day, he compared one of them under the comparison 11 The Intratec was damaged in such a way that the magazine would not feed the ammunition fully into the chamber because the magazine was jammed into the gripframe.... Lydon Warner Report, Exhibit 8, at 3. As a result, Lydon had to pull back the slide and feed the bullet into the chamber manually. The effect of this procedure is that there is a lack of extractor and ejector makrs on the fired shell casing. 12 There is some dispute regarding whether anyone witnessed Lydon s test fire of the Intratec weapon. Although resolution of this dispute does not affect the reliability of Lydon s examination, this court concludes that the evidence, specifically the Brookline Police Department report dated July 13, 2001 ( Brookline Report, Exhibit 45 ), supports the finding that Torres and the Brookline Police Officer witnessed Lydon s test fire. In that report, Sergeant William Riley ( Riley ) wrote that he and Officer Carroll brought the Intreatec weapon to BPD and met with Torres. The weapon was brought to the... Unit and examined by Officer Martin Lydon. Officer Lydon examined the weapon and with some effort pulled the slide to the rear, inserted a cartridge, pushed the slide forward and then fired the weapon. Officer Lydon repeated this two more times. Brookline Report, Exhibit 45. Riley further wrote that, on July 12, 2001, he spoke to the ADA Orlando Dimambro who advised [Riley] that the complaints [concerning the Intratec weapon] had been dismissed with out [sic] prejudice at the Commonwealths [sic] request. The reason for the dismissal was the impression that the [Intratec] weapon was inoperable, however upon examination by the Boston Police the weapon is operable, and was fired 3 times in [Riley s] presence. Id. (emphasis added). With respect to this report, Lydon testified that he does not recall that anyone witnessed his test firing of the Intratec, but that he believes Riley s report. 10

11 microscope with Items #2 and #3. He also retrieved the spent test fire bullets and compared one of them under the comparison microscope with Item #6 and with the bullet recovered from Rodrigues body. Lydon s report does not indicate whether he used the CCI test fire or the Federal Cartridge test fire(s) for these examinations. With respect to the shell casings, Items #2 and #3, Lydon examined the breech face markings at the rear of the shells. He found three areas of examination on the heads of the casings. He determined that the head-stamped area showed that the two shell casings were likely fired from the same weapon as the test fired casing on the basis of these markings. Because he was unable to conclude with definiteness that the two casings had been fired from the same firearm as the test fired casing on the basis of these markings alone, Lydon looked at the chamber markings. See Exhibit 20 (photograph of chamber marks). Chamber marks, according to Lydon, arise when the cartridge swells in the chamber area during the firing process. Upon determining that the chamber markings on all three casings matched, Lydon concluded that the two shell casings recovered from the scene, Items #2 and #3, were fired from the Intratec. With respect to the bullets, Lydon found that the individual markings and striations were in sufficient agreement and concluded that both the spent bullet recovered from the scene, Item #6, and the bullet recovered from Rodrigues body were fired from the Intratec. He recorded all of these conclusions in his report. In his report, Lydon wrote that he compared the recovered shell casings and bullets to the test fire without detailing the examination. He rendered a generalized opinion, writing, [f]rom these comparisons a determination was made that the two.25 caliber casings [Items #2 and #3], and the two spent.25 caliber bullets [Item #6 and the victim bullet]... were fired from the 11

12 Intratec.25 caliber pistol... submitted with this case. Lydon Warner Report, Exhibit 8, at 3. No photographs were taken of either the shell casings or the bullets, consistent with the procedure in place at that time The Unit s firearms examiners did not regularly take photographs in the course of their firearms examinations until 2004 when Doherty implemented the procedure. Photographs are never taken of areas that are different. 12

13 Years later, Lydon and Doherty re-examined this ballistics evidence and took photographs of the shell casings and the bullets. Doherty became involved in this case in February 2006 for her supervisory review simultaneous with Lydon s pre-trial review. 14 Doherty did her own comparison microscope examination of the bullet removed from the victim; she concluded that that bullet had been fired from the recovered Intratec weapon. She also took photographs of the areas she used for identification. See Exhibits 18, 19, 21, 22, 23 (photographs). Doherty could not recall, and her notes do not indicate, if she took these photographs in February 2006 or March Doherty also examined the shell casings in this case. She compared Item #2 and Item #3 to each other and to the CCI test fire from the recovered Intratec weapon. She photographed the comparison between either Item #2 or Item #3 15 and the CCI test fire. Exhibit 20 (photograph). Again, Doherty could not recall the date on which she took that photograph. 14 Doherty s typed report on the Warner evidence is undated, but it refers to the attached Cartridge Case Worksheet which is dated May , thereby indicating that she generated this report around that same time. See Doherty Warner Report, Exhibit 61, at 2. During her testimony, Doherty stated that she took two of the pages of handwritten notes on February 18, 2006, presumably during her supervisory review of the evidence. There is no date written anywhere on this page of notes, but this court credits Doherty s testimony. 15 Doherty could not recall whether she used Item #2 or Item #3 for the comparison, and her notes do not contain this information. See Doherty Warner Report, Exhibit

14 On May 21, 2006, as part of her own pre-trial review 16 of the evidence, Doherty reexamined the evidence, filed a report, see Doherty Warner Report, Exhibit 61, and took additional photographs. 17 See Exhibits 67, 68, 69, 70, 71 (photographs). Doherty examined the recovered bullets, first comparing Item #6 to the bullet removed from the victim. Her report includes a description of the examination, including the notation that she positioned both bullets with their noses facing left and that she used a large score mark... as beginning reference point. Doherty Warner Report, Exhibit 61, at 1. Rotating both bullets counterclockwise, she found clear markings for identification on what she named land-engraved area #3. Id. She further noted that all of the bullets land-engraved areas show sufficient agreement. Both bullets fired from same weapon. Id. at 2. Second, Doherty compared the bullet removed from the victim to the Intratec test fire. 18 Her report on this examination was similarly detailed, noting the same large score mark used for orientation and the counterclockwise rotation to land-engraved area #3. She concluded that [b]oth share sufficient agreement, sufficient characteristics, meets, exceeds CMS. 19 Id. Third, she compared Item #6 to the Intratec test fire, making almost identical comments in her report. 16 Doherty characterized this review as pre-trial rather than supervisory because it was prior to her own in-court testimony at the hearing on these motions. 17 The final page of handwritten notes attached to Doherty s report indicates the date on which she took certain photographs. Doherty testified that although the date appears to read 3/18/06, it actually reads 5/18/06. (Emphasis added). She came to this conclusion based on her own personal knowledge that she took the photographs listed on this page in May 2006 during the course of the hearing before this court. The court credits her testimony. July 11, Doherty s report indicates that she used the test fire from an envelope of test fires dated 19 CMS stands for consecutively matched striae, a method of firearms examination. 14

15 See id. Finally, Doherty concluded that [a]ll bullet evidence, both submitted bullets and test fires[,] share sufficient characteristics in all [land-engraved areas] when using score mark as reference starting point, to state all bullets fired from the same Intratec weapon [recovered in this case].... Id. This method is discussed further below. 15

16 At this same time, Doherty compared the shell casings found at the scene, Items #2 and #3, to a test fired shell casing. 20 First Doherty compared Items #2 and #3 to each other and concluded that they display similar characteristics relating to the orientation of extractor markings and ejector markings. Microscopic comparison reveal [sic] detailed markings in firing pin markings from ejector and location of extractor, as well as chamber markings indicate both shell casings fired from same.25 caliber semi-automatic weapon. Id. at 2-3. Second, Doherty compared the test fires against each other, finding they shared similar characteristics in firing pin and extractor location[,]... [although they] lack markings due to difficulty in loading weapon. Id. at 3. Third, Doherty compared one of the test fires to Item #2, and, fourth, she compared the test fire to Item #3. Her conclusion as to each, although rendered in separate sentences, was the same, specifically that there was sufficient agreement in the chamber markings such that Items #2 and #3 were fired from the Intratec. On a Cartridge Case Worksheet attached to Doherty s report, Doherty wrote in the date of May 21, 2006, and included the following handwritten note: 2 shell casings (CCI) 21 share sufficient characteristics examined against test fired... casing. ID area marked. Chamber markings ID d share sufficient individual characteristics - fired from Intratec... Marked with 20 Doherty s report merely indicates she compared Items #2 and #3 to a [r]epresentative test fire without providing further information as to which test fire, the CCI or the Federal Cartridge, she used. See Doherty Warner Report, Exhibit 61, at 3. On the final handwritten page of her report, Doherty wrote that she photographed her comparisons of Item #2 to the CCI test fire and of Item #3 to the CCI test fire. See id. at As noted above, Lydon testified that in July 2001, he performed one test fire using CCI ammunition and two test fires using Federal Cartridge ammunition. Lydon gave this testimony after looking in the envelope of test fires admitted as evidence. See Exhibit 51 (envelope). It is unclear, then, why Doherty s notes show that there are two CCI test fires. 16

17 X barrel and chamber cast for examination. Id. at 4 (footnote added). On this worksheet, Doherty also drew a sketch of the breech face and of the headstamp The Cartridge Case Worksheet does not indicate which shell casing Doherty drew (Item #2, Item #3, or the test fire). 17

18 Doherty also made a cast of the interior of the Intratec s barrel using Mikrosil. 23 See Exhibit 72 (envelope containing casts). 24 This cast of the barrel enabled her to identify marks that continued through the length of the cast, i.e., class and sub-class characteristics. Doherty was able to distinguish these long marks from individual characteristics 25 that do not run the entire length of the barrel. Additionally, Doherty used a borescope 26 to examine the inside of the 23 Essentially, to make such a cast, two chemicals are mixed together and compressed into the weapon s barrel. The Mikrosil hardens inside the barrel, then the examiner uses a long toothpick to pull the cast out of the barrel. 24 Three casts of the Intratec s barrel were admitted as Exhibit 72, and Doherty described the casts to the court. The first, #1, showed the muzzle end of the barrel; the depressed areas were the lands of the barrel, which would be the land-engraved areas of a bullet, and the raised areas were the grooves of the barrel, which would be the groove-engraved areas of a bullet. The second cast, #2, showed the beginning of the barrel where the projectile would sit, and the chamber markings were visible. The third cast, #3, was of the breech area of the weapon. 25 This term, as well as the terms class characteristics and sub-class characteristics, will be defined and discussed further below. 26 Doherty described a borescope as a microscope and flashlight on the end of a stick. She noted that an examiner could also use a comparison microscope to examine the barrel of a 18

19 barrel. weapon by taking away one of the stages; this method would produce the same effect as using a borescope. 19

20 Lydon re-examined the evidence in May 2006, making sketches 27 in which he compared Item #6 with the test fired bullet from the Intratec. Exhibit 48. Rather than mimic what Lydon sees under the microscope, the sketches indicate where Lydon saw significant marks on landengraved areas #1 through #6. Lydon also noted a gross mark 28 on groove-engraved area #1, located under land #1; he used this groove-engraved area for orientation, to line up the two bullets, not for identification. The gross mark on the groove-engraved area is a sub-class characteristic, Lydon testified, because it is too thick to be an accidental marking, because it is a straight line that does not vary, and because it is located in a groove-engraved area, an area that is more susceptible to sub-class characteristics. In a paragraph at the bottom of the series of sketches, Lydon wrote that [l]and[-engraved areas] 2, 3, and 4 have varied amounts of agreement. 5 & 1 only near groove[-engraved areas]. #6 near groove[-engraved areas] and [one] mark toward forward end of bullet. Gross markings on groove[-engraved area] between land[- engraved area] #1 and land[-engraved area] #6. Found sufficient agreement between test fire and bullet from scene (cone #6). Id. at 1-2. Lydon therefore examined the evidence from the Warner case on four different occasions: initially in December 2000; when he received the Intratec pistol in July 2001; in February 2006 when he learned that a court date had been scheduled for this case; and in May 2006 for the hearing before this court on Warner s Daubert-Lanigan motion. Doherty examined 27 Later in his testimony, Lydon stated that once Doherty became commander of the Unit in 2004, he began drawing diagrams. 28 Although the witnesses did not so testify, it is likely that this gross mark Lydon used for orientation is the same large score mark that Doherty used as a beginning reference point in her examinations. See Doherty Warner Report, Exhibit 61, at 1. 20

21 the evidence on at least three different occasions as well, in February and May 2006, and possibly in March 2006; Doherty photographed the examinations in February 2006 and May The lack of documentation throughout the initial examinations, although troublesome, does not affect the end result, that after each examination, both Lydon and Doherty reached the same conclusions, that the spent shell casings and bullets connected to the Rodrigues homicide were fired from the Intratec. Moreover, Lydon and Doherty better documented their later examinations. Although these more detailed notes and reports still contain omissions, they reflect an attempt to accurately describe the examination processes, thereby contributing to subsequent reproducibility as well as meaningful opinion testimony. B. Commonwealth v. Meeks On November 1, 2001, Lydon responded to a crime scene at 123 Blue Hill Avenue in Roxbury, Massachusetts, where Alvaro Sanders ( Sanders ) was allegedly shot, and he recovered two spent.38/ bullets ( Item #1 and Item #11 ). On November 7, 2001, Detective Carl Washington ( Washington ) 30 received two glass jars from the Medical Examiner s office each of which contained one spent.38/.357 caliber bullet ( Item A and Item B ) 31 that had been removed from Sanders body. 29 According to Lydon, this dual designation is unavoidable because the lengths of a spent.38 bullet and a spent.357 bullet are the same. However, one can fire a.38 bullet from a.357 firearm, but one cannot fire a.357 bullet from a.38 firearm. 30 Washington is now retired. 31 As Lydon looked at Items A and B in the courtroom, he noted that Item A is the larger of the two bullets and that Item B is actually in two pieces as a result of damage it had sustained. 21

22 With respect to each of these pieces of ballistics evidence, Lydon filled out BPD Ballistics Worksheets on which he noted the caliber and their recovery location; he noted the weight of Items A and B as well. See Exhibit 47. The worksheets have spaces for the examiner to note the widths of the land- and groove-engraved areas, but Lydon did not enter this information with respect to any of the evidence. 32 There is also a space for the examiner to enter information about the firearm itself, but, as no firearm had been recovered at that time, these spaces remained blank. case. 32 Lydon noted in his testimony that these worksheets are not important in a homicide 22

23 Lydon examined Items #1 and #11 under the comparison microscope and determined that there were not enough markings on these spent bullets to compare because of the amount of damage 33 they had sustained; he could not see the land- and groove-engraved areas on these bullets. He did note, however, that Item #11 had one land[-engraved area] that is discernable [sic] to the point where it s [sic] width was able to be compared with the width of the land[- engraved areas] on [Items A and B]... and the width of the land[-engraved areas] on these 3 bullets was consistent. Lydon Meeks Report, Exhibit 9, at 2. Lydon also examined Items A and B under the comparison microscope and saw that they, too, had been badly damaged so he could not see all of the land- and groove-engraved areas. Lydon noted the damage to Items A and B in his report, and concluded that he found [them] to have been fired from the same [as yet unrecovered] weapon. Id. At this point, he could not tell the type of weapon that had fired those bullets, but he knew the class characteristics of the gun included five lands, five grooves, and a right twist. 33 Lydon defined terminal damage as the damage sustained when a projectile reaches a target. Bullets that have been fired and that have sustained damage are harder to study not only because the damage can smooth out or roughen up the surfaces, but also because pieces of the bullet can break off as a result of the damage. Damage to lead bullets is not unusual because the metal is softer than jacketed bullets. 23

24 On January 8, 2002, Lydon and Washington reported to a crime scene in Roxbury, Massachusetts. A Smith & Wesson.357 revolver 34 was recovered at 29 Dennis Street, Roxbury, and one spent copper jacketed.38/.357 bullet was recovered around the corner from 29 Dennis Street at 43 Winthrop Street, Roxbury. 35 Washington did the initial testing on these items, and, 34 As he did with the Intratec, above, Ronald Borgio a Smith & Wesson employee, examined the Smith & Wesson revolver allegedly involved in the Sanders homicide and noted that it is a.357 magnum caliber revolver capable of firing six rounds, and that it has a four inch barrel. Based on his knowledge of Smith & Wesson serial numbers, Borgio concluded that this revolver was probably produced sometime around 1980 in Springfield, Massachusetts. Borgio Hearing Testimony, p. 9, l. 16. Currently, Smith & Wesson in Springfield uses Computer Numerical Control ( CNC ) machines to manufacture its firearms; these machines are automatic as opposed to manual. In 1980, however, the Springfield plant had relatively few, if any, CNC machines.... Id. at p. 38, ll Although the types of tools have not changed with the use of CNC machines, and although the process is essentially the same, prior to CNC machines, operators would have had to use fixtures to locate the six [cylinder] holes. And they would have had to drill those holes, and then in a separate operation ream the holes. Id. ll With CNC, there is no fixturing. The machine is programed to drill and then ream the holes. So the concept and the cutting process is the same. The degree of automation is higher today than it was in Id. at p. 39, ll In Borgio s opinion, this revolver was not reamed or broached with a CNC machine. With this type of revolver, the unfired ammunition moves from the cylinder to the barrel; the tool that files the area between the cylinder and the barrel is a handtool both at the present time as well as in According to Borgio, the frame of the Smith & Wesson allegedly involved in the Sanders homicide appeared to be in good functioning order, the cylinder lined up correctly and locked. Borgio observed no corrosion in the chamber or inside the barrel, although he could see some residue of unburned powder on the inside of the barrel. He could tell that the revolver had not been fired often, but, as he could see powder marks in each of the cylinders, he knew that it had been fired at least six times; he speculated that the revolver could have been fired as few as fifty times or as many as one hundred and twenty times. Looking down into the barrel, Borgio could see the lands and grooves. He concluded that the revolver might have been dropped on the front sight, but it did not appear to have been damaged as a result. 35 During his cross-examination of Lydon, defense counsel asserted that the distance between the two locations is less than 0.4 miles; upon examining the mapquest.com map defense counsel showed him, Lydon confirmed that distance. See Exhibit 41. While Lydon acknowledged that his report clearly states that both the bullet and the firearm were recovered at 29 Dennis Street, he noted that he responded to 29 Dennis Street initially, therefore that was the address he used consistently; if he recovered anything else that was related to the 29 Dennis Street crime scene, even if found elsewhere, he would use 29 Dennis Street as its identifier. 24

25 in a report, titled Ballistician s Office and dated January 22, 2002, he wrote only that he examined three.357 cartridges and that, [a]fter microscopic examination, compared with the test fires[,] it was found to have been all fired in the above weapon[,] a [.]357 Smith & Wesson.... Lydon Meeks Report, Exhibit 9, at 5. On August 8, 2002, Daniel Coleman ( Coleman ), who was, at that time, a sergeant detective in BPD s Homicide Unit, 36 contacted Lydon and told him that he had reason to believe that the Smith & Wesson.357 revolver recovered on January 8, 2002, had been used in the Sanders homicide. Coleman did not disclose any information to Lydon; he merely asked that a firearms examiner review the evidence. 36 Coleman is now the Deputy Superintendent of the BPD s Homicide Unit. 25

26 Thereafter, 37 Lydon test fired the Smith & Wesson and compared the test fire with one of the bullets recovered from Sanders body; Lydon made no notation in his report, dated August 12, 2002, whether he used Item A or Item B 38 for the comparison and, during his testimony, he could not recall which bullet he had used. 39 Upon examining the two bullets, Lydon found that striations on the one good land[-engraved area] from the victim bullet matched one of the land[- engraved areas] from the test fire bullet[,] and he concluded that the bullet removed from Sanders body had been fired from the Smith & Wesson.357 revolver recovered in January Lydon Meeks Report, Exhibit 9, at 3. Although his report does not contain any information to this effect, Lydon testified that he also attempted to compare Items #1 and #11 with the test fired bullet, but they were both too damaged to enable him to identify or eliminate 37 Even though his report indicates that he examined this evidence on August 8, 2002, Lydon testified that he could not recall if that was the correct date; it could have been that day or it could have been one or two days later. It was not uncommon for Lydon to write up his report a day or more after having conducted the examination. 38 Although he did not identify the bullet he compared in his August 2002 report, Lydon testified that the bullet he matched to the test fire was Item A. It is his usual practice to test both bullets in evidence against the test fire, but he did not do so in this case. He explained that it was likely that Item B had sustained too much damage to compare it to the test fired bullet; that notwithstanding, he could match at least one area on Item B to Item A in August 2002 despite the very small areas capable of being examined on each bullet. Lydon explained, in a hypothetical example, that Zone 1 of Bullet A matches the test fired bullet; Zone 2 of Bullet A matches Bullet B; Bullet B is too damaged to see Zone 1, so it cannot be matched to the test fired bullet. 39 During his direct examination, Lydon took Item A and Item B out of their respective jars in order to determine which one appeared in the enlarged photographs presented to the court. Upon looking at the two bullets, Lydon believed that he had returned them to the wrong jars, so, while on the stand, Lydon switched the two bullets. On cross-examination, Lydon revealed that he had examined Items A and B further and determined that he had not put the two bullets in the wrong jars, therefore his testimony on direct (to the effect that he had returned the bullets to the wrong jars) had been incorrect. He placed each bullet in its proper jar. 26

27 them as having been fired from the same revolver. Additionally, Lydon compared the test fired bullet from the Smith & Wesson.357 revolver recovered at 29 Dennis Street with the bullet recovered at 43 Winthrop Street and concluded, as Washington had, that they had been fired from the same weapon, namely the recovered Smith & Wesson revolver. Finally, Lydon compared the bullet recovered on January 8, 2002, at 43 Winthrop Street with one of the bullets removed from Sanders body. Again, Lydon did not note at the time whether he had used Item A or Item B, and he could not recall when testifying. He concluded that one of the land[-engraved areas] of this bullet [recovered at 43 Winthrop Street] matched the land[-engraved area] from the victim bullet. Id. In conclusion, the bullet removed from the victim s body [either Item A or B], the bullet recovered on 1/8/02 at 29 Dennis St., and the test fire bullet from the Smith and Wesson revolver from the Dennis St. case, each have 5 land[-engraved areas], 5 groove[-engraved areas], and a right twist, and all 3 share individual characteristics on at least 1 land[-engraved area]. Id. In response to a defense counsel request for photomicrographs some time in early 2005, Lydon re-compared one of the bullets removed from Sanders body with the August 2002 test fired bullet from the recovered Smith & Wesson revolver. After examining the two bullets over a period of approximately one week, 40 Lydon was unable to re-locate the one good land[- engraved area] on whichever one of the victim bullets he had found it on in August See id. at 1, 3. Doherty recalled that Lydon had approached her about needing photographs taken of his 40 Lydon testified that he did not examine the evidence relating to the Sanders homicide exclusively for one week; he would examine the evidence for a time, put it aside to work on something else, then go back to the evidence again. 27

28 examination. She knew Lydon had previously found a match, but she had limited information about the case. She testified that her initial understanding was that Lydon needed photographs, not that he was having difficulty finding the area of correspondence. Lydon then performed another test fire of the recovered Smith & Wesson revolver. Doherty compared the January 2005 test fire to Item A recovered from the body. According to Lydon s report, he observed on the January 2005 test fired bullet five landengraved areas, five groove-engraved areas, and a right twist. The bullet removed from the victim s body ha[d] those characteristics, but only three land[-engraved areas] and two groove[- engraved areas] [that were] of any use in [his] ballistic comparison due to damage sustained by this bullet. Id. at 1. Lydon testified that he found these areas of significance after Doherty pointed them out; in her own testimony, Doherty stated that she did not recall that she found an area that Lydon had not, but that she personally observed three areas of identification on the land-engraved area of the evidence bullet that led her to conclude that there was sufficient agreement in the matching striae of Item A and the test fire. Doherty also took photographs of the evidence. See Exhibits 14A, 15A, 16A. 41 Lydon testified that it is not rare for two examiners to find different areas of significance 42 on the same piece of evidence. Doherty 41 Exhibits 14, 15, and 16 are photocopies of the actual digital photographs which are Exhibits 14A, 15A, and 16A. Exhibits 15A and 16A are photographs of the land-engraved areas and Exhibit 14A is a photograph of a groove-engraved area. Doherty testified that she did not consider the groove-engraved area to be an area of significance; when defense counsel asked her why she bothered taking a photograph of that area, she said she did not know. 42 Marks that are areas of significance are not necessarily marks that result in an identification. For example, with respect to the January 2005 test fired bullet and the bullet recovered from the victim s body, Lydon found three good land-engraved areas and two grooveengraved areas on which he could observe marks or areas of significance; the fact that he only used two land-engraved areas and one groove-engraved area to make an identification merely 28

29 corroborated this testimony, stating that she has occasionally found other areas of comparison based on the use of light and rotation under the scope. Doherty and Lydon revisited the evidence from this case in February 2006 for Lydon s pretrial review and for Doherty s supervisory review. They both compared Item A and one of the test fired bullets under the comparison microscope, and they made sketches and further documentation. 43 Doherty also testified that she compared Item A to one of the test fires and means that there was a lack of matching patterns on the remaining land-engraved area and groove-engraved area. Based on his own experience, Lydon asserted that it would be impossible to find a match based on two land-engraved areas and one groove-engraved area and to conclude nonetheless that the lack of matching patterns on the remaining land-engraved area and grooveengraved area negated that identification. 43 It appears that the only documentation of these February 2006 reviews is one page of 29

30 took photographs in March 2006, 44 and that she compared Item B to one of the test fires sometime in May She also compared Items A and B to each other. handwritten notes attached to Doherty s typed report. See Doherty Meeks Report, Exhibit 60, at Similarly, the only documentation of this March 2006 examination is one page of handwritten notes attached to Doherty s typed report. See Doherty Meeks Report, Exhibit 60, at Doherty testified that she did this examination of Item B after learning of Lydon s testimony at the hearing before this court that he did not compare Item B to the test fired bullets; in fact, she testified, she was asked to re-examine the evidence because of the confusion that had resulted from Lydon s testimony. At this time, she also took photographs. See Exhibits 62, 63, 64 (all three are copies of photographs of a land-engraved area of Item B, on the left, and one of the test fires, on the right; each copy is a closer view to display the matching striae); Exhibit 65 (copy of a photograph separating, and not comparing, Item B from the test fire to show that Item B is deformed and to show the overall contour of the land- and groove-engraved areas); Exhibit 66 (copy of a photograph showing the orientation of the two bullets and showing that Item B is mangled and deformed). Doherty discussed these photographs during her testimony and indicated areas of similarity by drawing a rectangle around them. 30

31 In her undated typed report, 46 Doherty described her examination of the evidence in some detail. First, she compared Item #1 to Item #11 and found that, although they share similar width of [land-engraved areas], these observable [land-engraved areas] in the above bullets are inconclusive as to having been fired from the same weapon. Doherty Meeks Report, Exhibit 60, at 1. Second, Doherty compared land-engraved area #1 (marked with black sharpie) of Item A to Item B s middle [land-engraved area], (deformed, folded over), and found there were matching stria[e] at base of [land-engraved areas] on both specimens (4x, 4x CMS). 47 Id. Doherty therefore concluded that Items A and B were fired from the same gun.... Id. Third, Doherty compared land-engraved area #3 of the one fully visible landengraved area on Item #11 and concluded that there were [m]atching stria[e] [on those two 46 In the handwritten notes attached to Doherty s typed report, Exhibit 60, Doherty wrote that she compared Item A to Items #1 and #11 and to Washington s test fire dated January 8, Her handwritten notes also indicate that she matched Item A to Item B and compared Item B to the January 8, 2002, test fire. There was some confusion during Doherty s testimony regarding when, exactly, she took these notes. Doherty concluded that the third page of handwritten notes, containing in the bottom right-hand corner the date May 22, 2006, was actually the first page of her notes from that date; the second page of handwritten notes was the second page of her notes from that date; and the first page of handwritten notes was the last page of notes from that date. Confusion also resulted from the fact that Doherty s 5 in this date notation looks like a 3. She testified that she interprets the number as a 5 because she specifically recalls doing the examination and taking the notes. This portion of Doherty s testimony took place on Wednesday, May 31, The court credits this testimony. Doherty therefore only examined Item B in May 2006 at which time she found that it had been fired from the same weapon as Item A and the bullets test fired from the recovered Smith & Wesson. See Doherty Meeks Report, Exhibit 60. As Doherty s typed report discusses her examination of Item B, it is reasonable for this court to conclude that Doherty wrote this typed report in May 2006, after Lydon testified at the hearing on these motions. 47 Doherty wrote that [t]aking into account the change to evidence submitted and the composition of the evidence (lead bullets... ), consecutive matching stria were located within the respective evidence bullets and photographed, whenever possible. Doherty Meeks Report, Exhibit 60, at 3. 31

32 areas]... (marked with black sharpie), and matching CMS (3x, 4x)... [such that Item] A was fired from the same gun as [Item] # 11. Id. at 2. Fourth, Doherty noted that test fires of the recovered Smith & Wesson revolver were taken on January 8, 2002, and that additional test fires were done during... February These test fires were examined for markings, and several were chosen for further examination against the evidence.... Id. Fifth, Doherty compared [t]est fires 48 to the bullet recovered at Dennis Street; she positively identified [the latter] as having been fired from the [recovered].357 Smith and Wesson revolver.... Id. Sixth, Doherty compared the [t]est fires 49 to Items A and B and Items #1 and #11. She concluded that they [a]ll share characteristics of being fired from a.38/.357 Smith and Wesson weapon having a right-hand twist and equal [land-engraved area] dimensions. The groove engraved areas which were clear on the evidence bullets [Items A, B, #1, and #11] were examined against the groove engraved areas of the test fired bullets, but were not used for identification, instead they were used for orientation, as there were multiple identifiable stria[e] in these areas. Id. at 2-3 (footnote added). In this written report, Doherty also discusses the Mikrosil cast that she took of the barrel of the Smith & Wesson. See Exhibit 73 (envelope containing cast). As part of her examination, 48 Doherty does not specify which test fires she used for this examination, or whether she used all of the test fires. 49 Again, Doherty did not specify which or how many test fires she used for this examination. 32