COMMONWEALTH vs. STEVEN CARUSO.

MILKEY, J. In 1999, following a jury trial in District Court, the defendant was convicted of two counts of malicious destruction of property (a car), G. L. c. 266, § 127. In 2001, this court affirmed those convictions in an unpublished memorandum and order. Commonwealth v. Caruso, 52 Mass. App. Ct. 1101 (2001). Seven years later, after the defendant was convicted of murdering the owner of the damaged car, he filed a motion for new trial. He argued that newly discovered evidence definitively proved that he could not have been the person who damaged

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the car. That motion was heard and denied by the trial judge, who issued a forty-one page decision that explained his reasoning in thoughtful detail. For the reasons set forth below, we agree with the judge that the material on which the defendant relies does not constitute "newly discovered evidence." We also agree that this "evidence" -- while of some superficial force -- does not cast any "real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303 , 305 (1986). We therefore affirm.

Background. We summarize the key trial evidence as follows. The victim was Sandra Berfield, who lived in Everett. On four separate occasions during the fall of 1998, someone caused serious damage to her car while it was parked on the street next to her home. In the first two incidents, all four of Berfield's tires were slashed; in the second two, battery acid was poured into her gas tank. The dispute at trial was over the identity of the perpetrator.

Berfield worked at a Bickford's restaurant in Medford. The defendant patronized the restaurant with pronounced regularity, eating there once or twice virtually every day. Beginning in 1996, the defendant insisted on sitting in Berfield's section; he stayed there for lengthy periods while staring at her. Until August of 1998, the interactions between the defendant and Berfield were otherwise unremarkable. The two engaged in what Berfield described as "light conversations," and she characterized their relationship as "sort of friendly." In late August of 1998, the defendant asked Berfield if she wanted to go to a movie with him, which Berfield declined. After that, the defendant continued to insist on sitting in Berfield's section and to stare at her continually while smirking. Berfield became increasingly uncomfortable in his presence, and she avoided engaging him in conversation. Eventually, at her repeated insistence, the restaurant manager asked the defendant to sit in a different section of the restaurant. The incidents with Berfield's car began in late September.

The first incident. On September 27, 1998, Berfield found that someone had slashed her tires overnight. There were no eyewitnesses to the incident, and the defendant was never charged with this offense.

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The second incident. In the early morning of September 30, 1998, while Berfield was lying on her couch, she heard a second tire-slashing episode in progress. From her second floor window, she observed the apparent perpetrator walk away from her car. He was dressed all in black and wore a hood, and Berfield could not see his facial features. However, according to her trial testimony, she was able to recognize the defendant from his distinctive gait (which she had observed at the restaurant). She described the gait as "almost like a bounce as he walks with his arm swinging back and forth, his left arm." When she reported the second incident to the police, Berfield stated her belief that the defendant was the perpetrator. She acknowledged that she did not mention the defendant's gait to the police at that time, although she stated that she did mention his "figure." [Note 1] Fearful that the vandalism of her car would continue, Berfield set up a surveillance camera on the second floor of her home to observe the streetscape below.

The third incident. On October 4, 1998, Berfield's car malfunctioned while she was driving to work. A repair man discovered that someone had poured battery acid into the gas tank. When she returned home, Berfield learned that her surveillance camera had captured the apparent perpetrator walking next to her car at 3:15 A.M. that morning. The person in the video appeared to Berfield to be the same person she had observed after the second tire slashing, clothed as before, all in black and wearing a hood. Berfield testified that she once again recognized the defendant from his distinctive gait.

The fourth incident. Battery acid was again poured into Berfield's gas tank on October 25, 1998, at approximately 2:15 A.M. Berfield was home at the time, and she watched the incident on a video monitor as it unfolded. This was also recorded. The video shows a partially obstructed view of a red car pass by Berfield's home at approximately 2:11 A.M. traveling from right to left. Berfield testified that the car looked "very similar" to

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the one that she knew the defendant to drive. [Note 2] Approximately four minutes later, what appears to be the same hooded, dark-clothed figure enters the scene, walking from the left. Again, the person's facial features cannot be discerned. The figure walks alongside Berfield's car while carrying something in his hand, and then attends to the area around the gas cap before returning in the direction from which he came.

Berfield telephoned 911 during the incident, and an excerpted recording of her call was admitted. [Note 3] During the portion of the call played to the jury, she twice -- without any hesitation or expression of doubt -- identified the defendant as the person who was vandalizing her car. She told police after the incident that she recognized the defendant by his "shape, build and walk."

While Berfield was on the 911 call, she ran downstairs where she was able to observe the perpetrator from the first floor, front hall window. According to her testimony, the person turned his face slightly as he was leaving, and she thereby was able to confirm that it was the defendant from his facial features. Berfield acknowledged that she never told the officer who took her statement that she saw the perpetrator's face, although her specific answer suggested that she might have told a different officer.

The verdict. Based on the second tire slashing and the two battery acid incidents, the defendant was charged with three counts of malicious destruction of property. The Commonwealth's claim that the defendant was the hooded man who

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vandalized Berfield's car was based principally on her testimony. The defendant argued to the jury that any objective measures by which Berfield could have identified the perpetrator were thin, that she merely surmised it was him based on a misperception of his odd but innocent behavior, and that once having settled on the defendant, she embellished her reasons for identifying him significantly beyond the contemporaneous accounts she had given to police. The defendant also highlighted that Berfield referred to the perpetrator as "tall," while he was in fact relatively short. [Note 4] Finally, the defendant sought to suggest other possible suspects, including, most prominently, a former boyfriend (himself six feet tall) whom Berfield mentioned to police as a possible suspect in the two tire slashings.

On May 10, 1999, the jury found the defendant guilty of the two battery acid incidents, but acquitted him of the second tire slashing. The judge sentenced him to concurrent terms of eighteen months in the house of correction (six months to serve, the balance suspended), and ordered him to pay $3,000 in restitution, to undergo a psychiatric evaluation, and to stay away from Berfield and her restaurant.

Posttrial developments. In 2000, Berfield was murdered when a bomb delivered to her home exploded. The defendant eventually was convicted of murder in the first degree for her death after a twenty-two day trial. In preparing a defense of the murder charge, his legal team began to reexamine the evidence related to the incidents involving Berfield's car. As part of that effort, the defendant hired Rampion Visual Productions LLC (Rampion) to examine the video of the October 25, 1998, incident. In 2003, relying on "computer aided design" (CAD) software, as well as on data gleaned from a survey the defendant had done of the area around Berfield's home, Rampion produced an analysis (Rampion analysis) purporting to show that the person seen in the video must have been at least five feet, ten inches tall. According to the defendant, the Rampion analysis definitively

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proves that he could not have been the person who damaged Berfield's car, because he is some four inches shorter.

In 2007, the defendant moved for a new trial in the malicious destruction of property case, based on the Rampion analysis. [Note 5] The Commonwealth countered with an affidavit submitted by a "Supervisory Photographic Technologist in the Forensic Audio, Video & Image Analysis Unit of the Federal Bureau of Investigation (FBI)" (FBI affidavit) and a report completed by the same individual (FBI report). After holding a nonevidentiary hearing, the District Court judge who presided at trial denied the motion. He also denied the defendant's separate motions seeking funds for experts to respond to the FBI report.

Discussion. A defendant seeking a new trial based on "newly discovered evidence" faces formidable burdens. To overcome the important societal interests of finality and judicial efficiency, he "must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. at 305. To grant the motion, "the judge must find that there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Id. at 306. On appeal of the grant or denial of such a motion, we review only for "a significant error of law or other abuse of discretion." Commonwealth v. Weichell, 446 Mass. 785 , 799 (2006), quoting from Commonwealth v. Grace, supra at 307. Where the motion judge was also the trial judge, as is the case here, "special deference" is due. Commonwealth v. Fappiano, 69 Mass. App. Ct. 727 , 730 (2007).

1. Whether the 2003 Rampion analysis was "newly discovered evidence." The judge concluded that the defendant failed to meet his threshold burden of showing that the Rampion analysis was "newly discovered evidence." To meet that

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standard, the evidence must "have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial." Grace, supra at 306. The defendant acknowledges that CAD technology has existed "since at least the 1980's." In addition, the FBI affidavit established that CAD technology had progressed by 1999 to allow the type of analysis that the defendant subsequently had performed just four years later. Faced with that fact, the defendant attempts a more subtle argument. According to him, even if a CAD-based analysis technically could have been done in 1999, it was not readily available at that time, and it became so only after post-1999 technological advances made it easier and less costly to use. In this manner, he draws an analogy to the use of deoxyribonucleic acid testing, which became generally available long after it became technologically possible. See Kaye, The Double Helix and the Law of Evidence 261-263 (2010).

Without deciding the specific contours of what a defendant must show to prove that evidence based on developing technology was not "reasonably discoverable" prior to trial, we conclude that the defendant has failed to make an adequate showing here. He submitted two affidavits toward that end. In one, his trial counsel stated that a company that specializes in analyzing videotapes reported to him prior to trial that it was "unable to make any determination regarding the videotape." As the judge pointed out, no explanatory context was provided for this vague statement from one unnamed consultant. [Note 6] We agree with the judge that such a statement hardly establishes that the sort of analysis done in 2003 was not reasonably available in 1999.

Similarly unhelpful are vague statements attributed to the analysts who performed the Rampion analysis. According to an affidavit from the defendant's appellate counsel, the Rampion analysts stated that they were able to perform their analysis in 2003, "in part, because of the technological advances since the time of the defendant's 1999 trial." Again, such a statement

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simply does not establish that the practical unavailability of CAD technology in 1999 prevented the defendant from obtaining the kind of analysis that he had performed a mere four years later. [Note 7]

Even had the defendant been able to show that CAD technology was not reasonably available to him in 1999, he would face a separate problem. As the judge observed, "there is nothing new about . . . the geometry of estimating heights and distances [depicted in photographs] from known points of reference." [Note 8] The height of the person shown in the video still shot could have been calculated using a technique known as photogrammetry. [Note 9] According to the FBI affidavit, photogrammetry has been in use for over a century, and in any event, the defendant conceded at the motion hearing that a photogrammetric analysis of the height of the person in the video could have been performed prior to trial. Because the defendant had available to him a different means of achieving the same end, whether CAD technology had sufficiently progressed by the time of trial is ultimately beside the point. The posttrial development of an alternative technological method of proving the same evidentiary point does not, without more, create "newly discovered evidence." [Note 10]

2. Whether the Rampion analysis cast "real doubt." Having

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concluded that the Rampion analysis did not constitute "newly discovered evidence," the judge went on to consider whether it provided the definitive showing that the defendant claimed. We agree with the judge's assessment of that issue as well.

a. The force of the "new" evidence. According to the defendant, the Rampion analysis warrants a new trial because it amounts to "unshaken documentary proof" supporting his innocence. Commonwealth v. Woods, 382 Mass. 1 , 9 (1980) (recognizing that appellate scrutiny of denial of new trial motions should intensify "in the degree that unshaken documentary proof exists"). However, Woods does not help the defendant, because it involved a very different sort of documentary proof. There, the court concluded that a new trial was warranted primarily because Department of Correction records supported the defendant's claim that he was incarcerated when the crime most likely occurred. Id. at 5-7. Thus, at the heart of Woods is the fact that there was no apparent reason to question the accuracy of the documentary evidence that supported the defendant's innocence. Here, by contrast, the documentary proof that the defendant claims establishes his innocence was generated by the defendant's own expert. Although the defendant makes extravagant claims about the accuracy of the CAD methods used by his experts, [Note 11] even a limited examination of such claims reveals that the judge's skepticism was well-founded.

Whatever else can be said about the capabilities that CAD technology presents, it remains by definition merely a tool whose accuracy can be no greater than that of the data and assumptions on which it relies. See Commercial Union Ins. Co. v. Boston Edison Co., 412 Mass. 545 , 549 (1992) (discussing admissibility of computer-generated models). While the Rampion analysts began by using underlying data whose accuracy

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the Commonwealth does not question (the survey of the surrounding area and the still shot taken from the video), they then went through multiple steps to produce the final work product that they claim definitively establishes the perpetrator's height. [Note 12] The choices that the analysts made during those steps affect the ultimate conclusions drawn about the perpetrator's height and therefore call into serious question the accuracy of the defendant's claims.

For present purposes, one example will suffice. Although the resolution and lighting of the video make it challenging to discern much about the clothes the perpetrator was wearing, it is undisputed that he was wearing a hood. As explained in their transmittal letter, the Rampion analysts used an outline of the person shown in the video still shot to create "[a] figure with generic build, shoes, and clothing." That "[f]igure was 'dressed' in a hooded jacket supplied by in-house library." In other words, the Rampion analysts made choices about the nature of the hood the person was assumed to have been wearing. The FBI analyst pointed out that such choices obviously can affect how tall that person would appear: to the extent that the hood was sticking above the top of the person's head, he would look taller than he actually was.

As revealed in the slides that Rampion created, the particular hood that the analysts chose was one that fit snugly to the head,

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as opposed to one with a more distinct peak. In fact, Rampion's cover letter reveals that the analysts changed their assumption about the type of hood the person was wearing during the course of their analysis. Specifically, Rampion described one of the "refinements" made after the initial round of analysis as follows: "[t]he figure's jacket was made to look less cumbersome and the hood was fitted closer to the head [while] allowing enough room for hair." Changing that assumption presumably resulted in an increase in the person's calculated height, because a close fitting hood would account for less of the over-all height of the figure seen in the video still shot. Thus, a careful reading of Rampion's own explanation of what its analysts did reinforces the FBI's point regarding the hood. [Note 13]

By focusing on the assumptions the Rampion analysts made about the person's hood, we do not mean to suggest that these factors are the only ones that undercut the purported exactitude of their analysis. The FBI report highlighted that serious potential questions that can also be raised about other specific steps in the process that Rampion used. For example, the Rampion analysts had to place the human figures into the virtual landscape that was created. As the FBI affidavit pointed out -- relying on elementary principles of geometry -- it matters significantly how close the person is assumed to be standing in relation to the viewer and to the items against which his height is being compared. [Note 14] The defendant counters that some of the specific criticisms the FBI affidavit aimed at the Rampion analysis miss

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their mark. [Note 15] On this basis, he argues that the judge erred in relying on the FBI report, at least without his being given a chance to rebut that report with additional expert proof. Resolution of any remaining technical debate is unnecessary to our disposition of this appeal because we can confidently state that the Rampion analysis is not the "unshaken documentary proof" that the defendant claims. [Note 16] Commonwealth v. Wood, 382 Mass. at 9.

b. The strength of the Commonwealth's case. In concluding that the "new" evidence did not create "real doubt" about the jury's verdict, the judge also appropriately examined the strength of the Commonwealth's case. See Commonwealth v. Lykus, 451 Mass. 310 , 326 (2008) ("[In] decid[ing] whether the new evidence probably would have been a real factor in the jury's deliberations, . . . the judge must consider the strength of the case against the defendant"). The defendant argues that in making that assessment, the judge exaggerated the strengths of the Commonwealth's evidence, and ignored obvious problems with it. We disagree.

If the Commonwealth's proof was not overwhelming, neither was it thin. Notably, this is not a case involving stranger identification. Berfield was able to recognize the defendant from his facial features and distinctive gait after having observed him for literally hundreds of hours and having had reason to have his features etched in her memory. Contrast Commonwealth v. Woods, 382 Mass. at 7 (new trial warranted where documentary evidence supported defendant's alibi and where there were

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specific reasons to question victim's identification of him as stranger who raped her).

Moreover, the defendant significantly exaggerates the potential problems with Berfield's testimony. [Note 17] Although that testimony presented some fodder for cross-examination, defense counsel did not miss any such opportunity. [Note 18] The jury credited Berfield's account of the battery acid incidents in spite of the defendant's pointed arguments why they should not do so. Having seen exactly what the jury saw, the judge was in a unique position to assess the extent to which the Rampion analysis might have made a difference. His assessment of the trial evidence is entitled to "special deference." Commonwealth v. Grace, 397 Mass. at 307. See Commonwealth v. Santiago, 458 Mass. 405 , 414 (2010) (trial judge "is in the best position . . . to determine [new evidence's] probable impact on a jury hearing it with all the other evidence").

Conclusion. For all the reasons set forth above, we conclude that the judge did not abuse his discretion in denying the defendant's motions for new trial and for expert funds.

Order denying motion for new trial affirmed.

Order denying motions seeking expert funds affirmed.