COMMONWEALTH vs. BENJAMIN LAGUER.

GRAHAM, J. In January, 1984, a Superior Court jury convicted the defendant, Benjamin Laguer, on four indictments charging him with the crimes of robbery, breaking and entering, assault and battery, and aggravated rape. [Note 1] The indictments stemmed from a brutal attack and sexual assault of a fifty-nine year old woman while she was alone in her Leominster apartment. On appeal, this court upheld the convictions. [Note 2]

The principal issue at the trial was the identification of the assailant. Prior to trial, the defendant requested the disclosure of all exculpatory evidence, including fingerprints found in the victim's apartment. Approximately one month prior to trial, the prosecutor notified defense counsel by telephone that the Leominster police had lifted a partial fingerprint from the base of a telephone in the victim's apartment. The cord from the telephone had been used to bind the victim's hands. The prosecutor disclosed that the fingerprint was analyzed and was not a match to any of the defendant's fingerprints. He further indicated that when he received the written report itself (prepared by the State police laboratory) he would immediately provide it to defense counsel. The report, however, was not produced.

On June 21, 2001, nearly seventeen years after the defendant was convicted, he requested, through new counsel, that the office of the district attorney and the director of the State police crime laboratory provide him with documents related to fingerprints collected by the prosecution in connection with his trial. The Commonwealth, on November 15, 2001, produced the front page of a fingerprint report dated July 15, 1983 (fingerprint report). The fingerprint report indicated that four fingerprints (not one, as had been reported previously) had been lifted from the base of the victim's telephone, and none matched the fingerprints of the defendant. The back page of the fingerprint report, as well as the actual fingerprints, were missing.

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In February, 2004, represented by another new counsel, the defendant filed a motion in Superior Court seeking a new trial, or entry of an order dismissing the indictments. [Note 3] In the motion, the defendant argues that the prosecution's failure to disclose exculpatory evidence, i.e., the fingerprint report, resulted in a violation of his Federal and State due process rights and required a new trial. He contends that had the Commonwealth timely disclosed the fingerprint report, defense counsel could have used it at trial to impeach the victim's identification, and to substantiate his mistaken identity theory by establishing the presence of another person at the crime scene. He also claims that since the back page of the fingerprint report, as well as the actual fingerprints, have been lost or destroyed, dismissal of the indictments, rather than a new trial, is the appropriate remedy.

The motion for a new trial was argued before a judge of the Superior Court, who was not the judge who had presided at the defendant's 1984 trial. The motion judge denied the requested relief as well as the defendant's subsequent motion for reconsideration. We affirm.

1. The July, 1983, fingerprint report. The fingerprint report is dated July 15, 1983, just two days after the incident. As it currently exists, the fingerprint report is comprised of a single (one-sided) page. The fingerprint report was signed by "Tpr. Arthur Martin" and contains some basic facts respecting the crime: it was a "rape" in Leominster, and the police investigator was "Det. Ron Carrigan." It identifies the victim.

The fingerprint report indicates "4" "latent" fingerprints were lifted from the "base of the trimline phone" (which had been found in the victim's home). In the part of the fingerprint report entitled "Added Information (If Needed)," the following is set forth:

"On 7/15/83 at approx 2:30 pm Det. Carrigan brought a beige colored base of a telephone to the lab to be examined for prints. Several prints were lifted and a comparison

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made with a suspect Benjamin Laguer 5/1/63 with neg results. On 7/16/83 a 9:15 Det Carrigan was informed via telephone." [Note 4]

2. Trial evidence. A jury could have found the following facts. On July 12, 1983, at approximately 9:00 P.M., a man broke into the victim's apartment and assaulted her. The man was described as wearing jogging shorts and mismatched "gym" socks with stripes at the top.

Immediately upon his entering the apartment, and thereafter, the intruder forced the victim to submit to repeated and forcible acts of vaginal intercourse, sodomy, and fellatio. He repeatedly beat the victim and also robbed her, stealing jewelry, money, and a pocketbook. All of this occurred over about an eight-hour time period, ending at about 5:00 A.M. the next day (July 13).

At some point the assailant placed a plastic bag over the victim's head, causing her to pass out. She eventually came to but was dazed and in shock from the violent events. While the bag was over her head, the victim "fought" and struggled to some extent with the assailant. The victim was found to have bloody fingernails and blood on her hand, apparently from scratching the assailant.

During the incident, the victim was able to observe the face of her assailant. [Note 5] Before leaving her apartment, he threatened the victim that if she identified him, he would kill her. The victim was ultimately discovered by the police with her wrists bound together behind her back with a cord from the telephone in her apartment. Her feet were bound up with a cord from a portable hair dryer device. She had suffered serious physical injuries in the course of the attack.

It was not disputed that as of July, 1983, the defendant was living (with his father) in the same Leominster apartment complex where the victim made her home. The defendant lived in apartment 101, which was immediately adjacent to the victim's own unit (apartment 102).

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The victim identified the defendant as the perpetrator of the crimes. She recalled having seen the defendant on a prior occasion when he rang her doorbell in order to gain access to the common hallway inside the building. The victim also informed an investigating officer, Leominster police Detective Ronald Carignan, that she had seen the defendant using a key to go into apartment 101.

After having obtained a search warrant, Detective Carignan conducted a search of the defendant's apartment. Among the items of clothing observed in the apartment were several pairs of tube socks. The socks were rolled up in pairs but did not match. On the morning of July 15, Carignan returned to the apartment. The defendant answered the door, clad only in jogging shorts and tube socks. He was not wearing a shirt.

Accompanied by Carignan, the defendant went to the Leominster police station. He was advised of his Miranda rights. The defendant permitted police to photograph him and take his fingerprints. Carignan observed that the defendant had a very deep scratch on his back. This scratch was photographed, and the photographs were later shown to the jury. [Note 6]

While in the hospital, the victim identified the defendant from a photographic array displayed by the police. [Note 7] Just prior to trial, she was shown the same array of photographs and again selected the defendant's picture. At trial, the victim again selected the defendant's picture from a photographic array. [Note 8]

In the course of a search of the victim's apartment for evidence, Carignan recovered a fingerprint from the base of the victim's telephone and caused it to be sent to the State police laboratory for further analysis. At trial, Carignan testified that he did not find any fingerprints in the victim's apartment that matched the defendant's fingerprints. The police recovered bloodstained items from the crime scene and forwarded that

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evidence (with the defendant's saliva sample) to the State police for a chemical analysis. A subsequent police report indicated that an "inconclusive" blood-type result was obtained from the defendant's saliva sample. [Note 9]

At trial, each witness called by the defendant placed the defendant away from the crime scene during the eight-hour period of the attack. The defendant testified and flatly denied having committed the crimes charged.

Throughout the trial, the defendant pressed an argument to the jury that another man had committed the crimes, identifying a particular man of Hispanic descent who also lived at the same Leominster apartment complex as being the likely culprit. In a like vein, the defendant's counsel drove the point home to the jury during closing argument that there was no physical evidence that linked the defendant to the crime scene.

3. Due process. Due process of law requires that the government timely "disclose to a criminal defendant favorable evidence in its possession that could materially aid the defense against the pending charges." Commonwealth v. Daniels, 445 Mass. 392 , 401 (2005), quoting from Commonwealth v. Tucceri, 412 Mass. 401 , 404-405 (1992). This constitutional rule has been articulated in a series of United States Supreme Court decisions [Note 10] dating back to Brady v. Maryland, 373 U.S. 83, 87 (1963), as well as in decisions of the Supreme Judicial Court and this court. See, e.g., United States v. Agurs, 427 U.S. 97, 103-104 (1976); Banks v. Dretke, 540 U.S. 668, 691 (2004);

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Commonwealth v. Gregory, 401 Mass. 437 , 442 (1988); Commonwealth v. Healy, 438 Mass. 672 , 678-679 (2003); Commonwealth v. Daniels, 445 Mass. at 401-405; Commonwealth v. Vaughn, 32 Mass. App. Ct. 435 , 439-440 (1992); Commonwealth v. Bennett, 43 Mass. App. Ct. 154 , 158-163 (1997). [Note 11]

For a constitutional violation to be established due to the prosecution's failure to make disclosure, " '[f]avorable evidence' need not be dispositive evidence." Commonwealth v. Daniels, 445 Mass. at 401. "Evidence may be favorable or exculpatory, [Note 12] and thus required to be disclosed, 'although it is not absolutely destructive of the Commonwealth's case or highly demonstrative of the defendant's innocence.' " Ibid., quoting from Commonwealth v. Ellison, 376 Mass. 1 , 22 (1978).

The prosecution's duty to make disclosure to a defendant is straightforward. The prosecution must disclose evidence, in its possession or under its control, "which provides some significant aid to the defendant's case, whether it furnishes corroboration of the defendant's story, calls into question a material, although not indispensable, element of the prosecution's version of the events, or challenges the credibility of a key prosecution witness." Commonwealth v. Ellison, 376 Mass. at 22. See Commonwealth v. Healy, 438 Mass. at 679. That said, it remains the defendant's burden to show prejudice warranting or

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requiring a new trial. Commonwealth v. Tucceri, 412 Mass. at 404 n.2.

4. Standard of review. Because the defendant had requested the Commonwealth to produce fingerprint evidence, it follows that he "need only demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure." Id. at 412. Such a basis exists if undisclosed evidence, responsive to a specific defense request, "might have affected the outcome of the trial." Id. at 405, quoting from United States v. Agurs, 427 U.S. at 104. This is a more favorable standard to a defendant than the situation where either no request has been made by a criminal defendant, or it has been made in such generalized terms that the prosecution cannot be deemed to have been put on notice of a defense request for a particular piece of evidence. [Note 13] Commonwealth v. Tucceri, 412 Mass. at 413. [Note 14] See Commonwealth v. Daniels, 445 Mass. at 404 n.23 (explaining different standards of review in case such as this).

When a new trial motion is constitutionally based, as is the case here, a reviewing court "will exercise its own independent judgment on the ultimate factual as well as legal conclusions." Commonwealth v. Tucceri, 412 Mass. at 409. See Commonwealth v. Salvati, 420 Mass. 499 , 500 (1995); Commonwealth v. Healy, 438 Mass. at 678. In the circumstances of this case, no deference need be afforded to the findings of fact made by the motion judge below, or to his connected rulings of law. Measured by this framework, we turn to the merits of the defendant's due process claim. [Note 15]

5. Discussion. In this case, the defendant has not established

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that "a substantial basis exists for claiming prejudice from the nondisclosure." Commonwealth v. Tucceri, 412 Mass. at 412. We conclude that even had the fingerprint report been timely produced, it would not have affected the outcome of the trial. Id. at 412-413. Accord Commonwealth v. Daye, 411 Mass. 719 , 729 (1992); Commonwealth v. Healy, 438 Mass. at 680.

First, the fingerprint report is cumulative of other evidence admitted at trial that established, indisputably, that there was an absence of physical evidence at the scene linking this defendant to the crimes. See Commonwealth v. Tucceri, 412 Mass. at 414 ("[i]f the undisclosed evidence is cumulative, . . . the failure to disclose that evidence does not warrant the granting of a new trial").

In particular, the jury were informed that a fingerprint from the same telephone was shown not to have matched the defendant's fingerprints. Because the fingerprint report refers to four fingerprints, the additional nonmatching fingerprints arguably bolster the point that the defendant's fingerprints were not identified on the telephone. [Note 16] Failure to disclose the fingerprint report did not handicap the defendant's ability to argue to the jury that the victim had misidentified him, a claim he made throughout the trial from several different angles. [Note 17]

Second, nothing in the report demonstrates, or even suggests, that the defendant had not been at the scene or had not committed the crimes charged. The report does not add new information

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to call into question the victim's identification of the defendant as the perpetrator of the crimes charged. There is no information in the report as to the identity of the person whose fingerprints were on the telephone. It is only in the most general and speculative terms that the defendant claims to have suffered prejudice from the Commonwealth's nondisclosure. The defendant characterizes the fingerprint report as "potentially exculpatory"; however, given that he had been informed, prior to trial, of the results of the single fingerprint analysis, and given that he had in his sights at the time of trial the identity of one particular man, of Hispanic descent, who lived in the same Leominster apartment complex, no convincing showing has been made here that the defendant was handicapped in any material way in his defense against the charges. We are not persuaded that his trial strategy was materially affected due to the nondisclosure of the fingerprint report. We note that a month prior to the start of the trial, the defendant was aware of the existence of the single fingerprint yet proceeded to trial without obtaining or attempting to link the fingerprint to other possible perpetrators.

Third, in briefs filed with this court, the defendant's counsel have attempted to argue that the Commonwealth's physical evidence at trial was "inconclusive," and as such, a timely production of the fingerprint report could have aided the defense in its ability to cast doubt on the Commonwealth's case. This contention is spurious. References at trial to the "inconclusive" nature of physical evidence were directed to a chemical analysis of the defendant's saliva sample and blood evidence. A different State police laboratory report indicated that an "inconclusive" blood-type result was obtained from the defendant's saliva sample. [Note 18]

The defendant now attempts to conflate two different tests, that is, the fingerprint evidence on the one hand, and the saliva and blood evidence on the other hand. [Note 19] It is highly unlikely the jury would have been led to believe that the "inconclusive"

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blood evidence had anything to do with the indisputable fact that no fingerprints were found at the scene that matched those of the defendant.

Any harm resulting from the failure to produce the fingerprint report here is markedly different in degree from the situation presented in those cases where a new trial has been ordered because of the prosecution's failure to make timely disclosure of exculpatory or favorable evidence to a defendant. See Commonwealth v. Gallarelli, 399 Mass. 17 , 22-24 (1987) (police report confirmed no trace of blood found on knife seized from defendant upon arrest for stabbing); Commonwealth v. Martin, 427 Mass. 816 , 822 (1998) (postmortem tests tending to disprove presence of drug in body of murder victim); Commonwealth v. Vaughn, 32 Mass. App. Ct. at 439-440 (detective indicated in initial report that there were two sets of footprints at crime scene but at trial testified that there were three sets of footprints; prosecution should have disclosed detective's change in statement); Commonwealth v. Bennett, 43 Mass. App. Ct. at 158-163 (evidence tending to show defendant could not have made telephone calls to victim after an attack because defendant was at that time detained in State correctional facility).

The fingerprint report, unlike those items of evidence at issue in the above cases, was cumulative of other evidence admitted at trial and essentially confirmed information that had been directly conveyed to the defendant's counsel prior to trial. The fingerprint report does not contain information that would have cast doubt on the victim's positive identification of the defendant, or cleared him from involvement with this attack. Compare Commonwealth v. Brown, 57 Mass. App. Ct. 852 , 857-859 (2003) (undisclosed inventory report did not carry measure of strength to warrant ordering new trial).

For the same reasons, we are confident that the defendant's due process rights were not violated by the Commonwealth's destruction or loss of the actual fingerprints or any remaining page of the fingerprint report. We are unpersuaded by the

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reasons set forth by the defendant in support of the relief requested in his motion.

The orders of the Superior Court denying defendant's motion for a new trial and related reconsideration motion are affirmed.

So ordered.