COMMONWEALTH vs. MICHAEL J. EAGLES.

CYPHER, J. Following a jury trial, the defendant, Michael J. Eagles, was convicted of murder in the first degree by means of extreme atrocity or cruelty and on a theory of felony-murder, arising from the death of the victim, Lewis Jennings. [Note 1] During the course of the defendant's trial, the Commonwealth presented

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expert testimony comparing hair samples collected at the crime scene from the victim's hand with hair taken from the defendant. The expert testimony included a statistical probability to support the expert's opinion that the hair collected at the crime scene belonged to the defendant. Since the defendant's convictions, however, such statistical probabilities to support hair comparisons have been found to be unreliable. In light of this recent development, the defendant filed a motion for a new trial, arguing that the admission of the expert testimony improperly influenced the jury in their verdicts. The motion was denied without an evidentiary hearing. The defendant filed both a notice of appeal and a gatekeeper petition for leave to appeal pursuant to G. L. c. 278, § 33E. A single justice of this court allowed the defendant's gatekeeper petition and submitted this appeal to the full court.

This case now presents the issue whether the admission of expert testimony on statistical support for hair comparison evidence, which since has been proved to be unreliable, was a real factor in the jury's deliberations. Where we conclude that it was not, we affirm the denial of the defendant's motion for a new trial. [Note 2]

Background. The facts surrounding the murder are set forth in detail in Commonwealth v. Eagles, 419 Mass. 825, 826-830 (1995). "We summarize those facts here and supplement them with other relevant facts from the trial record and the facts found by the motion judge to be significant with respect to the defendant's motion for a new trial, all of which are supported by the record." Commonwealth v. Sullivan, 469 Mass. 340, 341 (2014).

On the evening of July 29, 1986, the defendant returned home from work, drank beer, and walked into town to purchase more liquor. While returning from the liquor store, the defendant met with Jeffrey Roberio. The defendant and Roberio returned to the defendant's residence, where they both drank more alcohol, and the defendant ingested cocaine and hallucinogenic "acid." At approximately 8 P.M., Roberio's cousin, Paul DeMoranville, drove Roberio and the defendant to a local drive-in movie theater. While at the theater, Roberio told DeMoranville that he planned to break into a nearby trailer home and asked the defendant to be his lookout. Roberio assured the defendant that nobody would be home at the time of the break-in. Roberio then asked DeMoranville

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to return to the theater to pick them up in one and one-half hours. DeMoranville left the theater, and both Roberio and the defendant walked from the theater to the victim's back yard.

The victim was a seventy-nine year old man who lived alone in a trailer. He stored cash in various hiding places throughout the trailer, kept change in a beer stein, and stored his insurance papers and old coins in a strong box in the kitchen. The victim also kept a shotgun underneath his bed. See Eagles, 419 Mass. at 826.

When Roberio and the defendant arrived at the victim's trailer, they noticed that a light was on and that a car was parked in the driveway. The two men "proceeded to cut off any chance of help being called by severing the telephone line." [Note 3] Eagles, 419 Mass. at 829. According to the Commonwealth's theory of the case, the two men entered the trailer and confronted the victim, who resisted with force. Id. at 829-830. Both Roberio and the defendant beat the victim mercilessly, tied a pillowcase around the victim's neck, and brought him from room to room in an attempt to force the victim to tell the two men where the money was hidden. Id. at 827, 830. After robbing the victim, the two men left him either dead, or nearly dead, in his trailer. Id. at 830.

The defendant's version of the events, however, differed drastically. Eagles, 419 Mass. at 828. The defendant testified at trial in his own defense, and he entirely contradicted the recorded statement he previously had given to police shortly after the murder. Id. In his previous statement to police, the defendant had denied any involvement in the crime. Id. At trial, however, the defendant testified that he did not take part in the robbery and murder but did go to the victim's trailer for the sole purpose of acting as Roberio's lookout while Roberio entered the trailer, which he believed to be unoccupied at the time, and took the victim's money. Id.

The defendant was adamant that he served only as a lookout and remained outside when Roberio entered the trailer. He testified that only when he heard noises coming from within the trailer did he enter. According to the defendant, he saw the victim lying on the floor with a ligature around his neck and bleeding from his face. The defendant also saw Roberio holding the victim's shotgun. Although the victim was unconscious, he still was breathing. Roberio instructed the defendant to look for money, which he

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tried to do, but he claimed he was unsuccessful. Roberio dumped change from the victim's beer stein into the defendant's hand and grabbed the strong box as the two men fled from the trailer. [Note 4]

Shortly after the murder, DeMoranville and DeMoranville's brother returned to the theater, where they picked up the two men, and dropped off the defendant at his residence. The defendant had been living at this place of residence with a roommate and the roommate's wife for about one and one-half months, but never paid any rent. See Eagles, 419 Mass. at 830, 832. Following the murder, the defendant was seen taking handfuls of change from his pocket and offering the change to his roommate as payment for food and rent. See id. at 827, 832. The defendant also was seen with a roll of paper currency.

The victim was found the next day on the floor of the living room of his trailer. Eagles, 419 Mass. at 826-827. According to the medical examiner, the victim was alive when his injuries were inflicted, but he ultimately died from a combination of the multiple blunt force injuries and the strangulation by ligature. [Note 5] See id. at 827.

As police searched the victim's trailer, which was in disarray on their arrival, there were pools of blood and blood stains throughout it, but none of the victim's money could be found. See Eagles, 419 Mass. at 827. Much of the blood in the trailer was type O, the victim's blood type. Id. The police investigation also revealed Roberio's fingerprint on the empty beer stein, as well as a bloody footprint on a pillowcase on the floor of the living room. Id. Police eventually were able to obtain the defendant's sneakers and match the bloody footprint to the print from the defendant's left sneaker. In addition to the bloody footprint, police found type O blood on the defendant's pants, occult blood on the defendant's

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hands, and blood on one shirt and the sneakers of the defendant. [Note 6] See id.

Most importantly for the purpose of this appeal, hairs were found in the victim's left hand, which was found tucked underneath his body at the crime scene. See Eagles, 419 Mass. at 827. At trial, Jay Godleski, a chemist at the State police crime laboratory, testified that he tested hair samples from the victim, Roberio, and the defendant. He then compared those hairs to the ones found in the victim's hand. Godleski testified that "two of [the five] hairs [that were recovered from the victim's hand] were consistent with [the defendant's] standard head hair." [Note 7] He further testified: "[F]or one hair to be consistent with a head hair that's been submitted, there's a one in 4,500 chance that that hair came from that individual." [Note 8]

Following trial, the defendant was found guilty of murder in the first degree by means of extreme atrocity or cruelty, and on the theory of felony-murder, for which the defendant's conviction of armed robbery served as the predicate offense. Eagles, 419 Mass. at 826. This court upheld the defendant's convictions on direct appellate review. See id. at 840. [Note 9]

In 2009, years after the defendant's convictions were affirmed on appeal, the National Academy of Sciences issued a report rejecting the ability of a forensic hair analyst to opine on the statistical significance of a person's hair being consistent with hair found at a crime scene. See National Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009). Specifically, the report stated that the very probability that Godleski testified about, i.e., that there was a one in 4,500 chance that the hair collected from a crime scene would be consistent with the hair sample submitted by the defendant, was a probability that was shown to be unreliable. Id. at 158-161.

In 2012, the Federal Bureau of Investigation, the Innocence Project, and the National Association of Criminal Defense

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Lawyers came to an agreement on "what the science of microscopic hair examinations supports." United States Department of Justice, Federal Bureau of Investigation, Microscopic Hair Comparison Analysis at 1 (Nov. 9, 2012). The agreement allowed "a well-trained examiner to offer an opinion that a known individual can either be included or excluded as a possible source of a questioned hair collected at a crime scene." Id. However, microscopic hair analysis necessarily is limited, because the size of the pool of people who can be included as a possible source of a specific hair is unknown. Thus, an expert's report or testimony "that applies probabilities to a particular inclusion of someone as a source of a hair of unknown origin cannot be scientifically supported." Id. In 2018, as a result of the newly discovered scientific unreliability of this hair evidence, the defendant filed a motion for a new trial.

Discussion. "Rule 30 (b) of the Massachusetts Rules of Criminal Procedure, as appearing in 435 Mass. 1501 (2001), authorizes a judge to 'grant a new trial at any time if it appears that justice may not have been done.'" Commonwealth v. Watkins (No. 1), 486 Mass. 801, 803-804 (2021). See Commonwealth v. Mazza, 484 Mass. 539, 551 (2020). "A motion for a new trial is addressed to the sound discretion of the judge." Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020). Generally, "[a]n appellate court will examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Id., quoting Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011). However, where the motion judge neither presided over the trial nor conducted an evidentiary hearing, we are in as good a position as the motion judge to assess the documentary evidence found within the record, thus allowing this court to review the judge's decision de novo. See Mazza, supra at 547.

Where the defendant's motion for a new trial is based on new evidence, the defendant must demonstrate that (1) "the evidence is either 'newly discovered' or 'newly available,'" and (2) "it 'casts real doubt' on the justice of the defendant's conviction" (citation omitted). Sullivan, 469 Mass. at 350. See Commonwealth v. Grace, 397 Mass. 303, 305 (1986). "New evidence will cast real doubt on the justice of the conviction if there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Sullivan, supra, citing Grace, supra at 306.

At trial, Godleski testified that he tested hair samples from the victim, Roberio, and the defendant, comparing those hairs to the

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hairs found in the victim's hand at the crime scene. Godleski's testimony, however, went beyond mere comparisons between the hair samples collected at the scene of the crime and those taken from the defendant. He further opined that "for one hair to be consistent with a head hair that's been submitted, there's a one in 4,500 chance that that hair came from that individual." Since the time of the defendant's trial, testimony that applies statistical probabilities to the inclusion of someone as a source of a hair of unknown origin no longer is scientifically supported.

The defendant argues, and the Commonwealth concedes, that based on recent scientific developments, the statistical probability to which Godleski testified at trial in support of his hair comparison testimony ought to have been excluded. The Commonwealth concedes that the newly available analysis for the statistical probability used to support the inculpatory hair comparison evidence would have removed such statistical evidence from the jury's consideration at trial. Where the new scientific analysis, which was unavailable to the defendant at trial, casts doubt on the reliability of the statistical probability that supported Godleski's hair comparison testimony, the defendant has satisfied his initial burden of demonstrating that the evidence to support his motion for a new trial is either newly discovered or newly available. See Commonwealth v. Cowels, 470 Mass. 607, 617-618 (2015) (defendant satisfies initial burden of demonstrating newly available evidence even where motions were "based less on newly discovered evidence that could have been admitted in evidence at the trial," and more "on newly available analysis that would remove from the jury's consideration evidence admitted at trial in the Commonwealth's case"). See also Grace, 397 Mass. at 306 (defendant must demonstrate that new evidence was "unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial").

Where the defendant correctly argues that newly available scientific developments likely would have rendered the statistical probability that supported the inculpatory hair evidence inadmissible at trial, our analysis hinges on whether such statistical probability likely was a real factor in the jury's deliberations, such that its elimination would cast real doubt on the justice of the defendant's convictions. See Cowels, 470 Mass. at 618.

The defendant argues that where the hair comparison evidence was the only physical evidence that refutes the defendant's testimony that he acted solely as a lookout during the crime, it likely

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was a real factor in the jury's deliberations, as the elimination of the statistical evidence to support the hair comparison would have supported the defendant's argument that he did not have the requisite intent and knowledge to be found guilty of armed robbery and murder in the first degree. We disagree.

Where the Commonwealth's case strongly supports the defendant's guilt on a joint venture theory of felony-murder, the statistical probability to support Godleski's hair comparison testimony likely was not a real factor in the jury's deliberations. [Note 10] See Grace, 397 Mass. at 306, citing Commonwealth v. Dascalakis, 246 Mass. 12, 33 (1923) (strength of case against criminal defendant may weaken effect of newly discovered evidence). "To warrant a conviction of felony-murder as a joint venturer with armed robbery as the predicate felony, the Commonwealth had to prove that [the defendant] was a joint venturer in an armed robbery and that the victim's death occurred in the commission or attempted commission of that armed robbery." Commonwealth v. Gallett, 481 Mass. 662, 673 (2019), citing Commonwealth v. Rakes, 478 Mass. 22, 33 (2017). "To find the defendant guilty of the underlying felony of armed robbery, proof was required that the defendant was part of a venture in which at least one of the coventurers was armed with a dangerous weapon, either applied violence to the victim['s] bod[y] or put [him] in fear and took the victim['s] property with the intent to steal it." Rakes, supra, citing Commonwealth v. Williams, 475 Mass. 705, 710 (2016).

Here, the evidence presented at trial demonstrated that both Roberio and the defendant planned to break into the victim's trailer and rob him of the money and other valuable items that the victim had hidden throughout the trailer. On entering the trailer, the two men confronted the victim, who forcefully resisted their attempts to rob him. Eagles, 419 Mass. at 829-830. Roberio and the defendant then beat the victim mercilessly, tied a pillowcase around his neck to strangle him, and brought him from room to room in the trailer in an attempt to force the victim to reveal where he had hidden his money. Id. at 827, 830. Both men then stole the victim's money and left him for dead. Id. at 830. Where the defendant agreed to rob the victim, and aided Roberio in

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doing so by mercilessly killing the victim and taking the money that he had hidden throughout his trailer, such evidence is sufficient to support a conviction of armed robbery, as well as felony-murder. See Rakes, 478 Mass. at 33.

The defendant insisted at trial, however, that he (1) served merely as a lookout for Roberio, (2) did not know that the trailer was occupied when Roberio initially entered, (3) did not aid in the killing of the victim, and (4) stole the victim's money only at the direction of Roberio. See Eagles, 419 Mass. at 828. Now, in arguing for a new trial, he again insists that he served as merely the lookout and further claims that without the statistical probability to support the hair comparison evidence, the record is devoid of any evidence demonstrating that the defendant possessed the requisite intent to support the armed robbery conviction, and his conviction of murder in the first degree. At oral argument, the defendant also argued that the hair comparison evidence, and the statistical probability that supported such evidence, were likely a real factor in the jury's deliberations because of the Commonwealth's closing argument, where the prosecutor emphasized that the hair was found in the victim's hand, tucked underneath his body. The defendant argued that the emphasis on the hair being tucked underneath the victim's body served as the only piece of physical evidence to definitively support the Commonwealth's theory that the defendant possessed the requisite intent for armed robbery when he entered the victim's trailer with Roberio. [Note 11] We disagree.

Even if the jury were to credit the defendant's version of events, which they certainly need not have done, [Note 12] and notwithstanding the Commonwealth's closing argument on the importance

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of the hair evidence, there undoubtedly existed ample evidence, outside of the hair comparison evidence, to demonstrate that the defendant possessed the requisite intent for his conviction of felony-murder under a joint venture theory.

To find the defendant guilty of armed robbery, the predicate offense for the defendant's felony-murder charge, the Commonwealth was required to prove that the defendant knew that Roberio was armed, and that the defendant intentionally assisted Roberio in the commission of the armed robbery while sharing the mental state required for that crime. See Commonwealth v. Semedo, 456 Mass. 1, 11 (2010). See also Commonwealth v. Buth, 480 Mass. 113, 116, cert. denied, 139 S. Ct. 607 (2018) ("Where, as here, an element of the offense is that the perpetrator is armed, the Commonwealth must prove that the defendant knew that [his] coventurer was armed"). Here, even if the jury believed that the defendant did not know Roberio was armed prior to entering the trailer, whether the defendant knew Roberio was armed either before or after entering the trailer ultimately has no bearing on the defendant's guilt in this case because the defendant's continued participation in the robbery after entering the trailer and learning of Roberio's use of a weapon, i.e., the ligature, demonstrates that the defendant necessarily possessed the requisite intent for the armed robbery joint venture. See id. at 117 ("Where a defendant continues to act in furtherance of the joint venture even after learning of a coventurer's weapon, we have allowed an inference that the coventurer had the requisite intent for the joint venture"). The defendant's failure to render aid to the victim, telephone 911, or disassociate himself from Roberio and the joint venture in some other way also supports the jury's rational inference that the defendant possessed the requisite intent for armed robbery and felony-murder. See Commonwealth v. Cannon, 449 Mass. 462, 470-471 (2007). Therefore, even under the defendant's version of the events, where he allegedly entered the trailer only after Roberio had used a weapon to assault the victim and saw that the victim had been beaten mercilessly and strangled, the defendant's continued participation in the robbery, i.e., taking the victim's money and other valuable goods, is sufficient for the jury to infer that the defendant possessed the requisite intent for

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armed robbery. [Note 13] See id. See also Rakes, 478 Mass. at 33 ("Even if the defendant had been unaware that [his coventurer] possessed a weapon in advance, it would be reasonable to conclude that he became aware over the course of the robbery and continued to participate, implicating him in the joint venture").

Furthermore, the defendant's emphasis on the inculpatory effect of the hair comparison evidence presented at trial is misplaced, as the hair evidence merely was cumulative of the other significant physical evidence that demonstrated the defendant's involvement in the armed robbery and murder of the victim. In Sullivan, 469 Mass. at 351-352, this court allowed a motion for a new trial on the defendant's convictions of murder in the first degree and armed robbery, based on the reexamination of deoxyribonucleic acid (DNA) evidence. On reexamining the purple jacket that the defendant allegedly wore at the scene of the crime, further testing revealed that the cuffs of the defendant's jacket tested negative for the presence of blood and that any DNA that was found on the cuffs definitively did not belong to the victim. Id. at 351. Furthermore, additional testing also was inconclusive regarding whether hair found in the defendant's jacket belonged to the victim. Id.

In granting the defendant's motion for a new trial, we recognized that "the purported blood on the defendant's cuffs and the hair in [the] defendant's pocket were not merely cumulative of other physical evidence presented at trial." Sullivan, 469 Mass. at 352. Instead, these pieces of evidence "were different in kind because they served as the sole pieces of physical evidence indicating that the defendant had been in the presence of the victim during the killing." Id., citing Commonwealth v. Cintron, 435 Mass. 509, 518 (2001), overruled on another ground by Commonwealth v. Hart, 455 Mass. 230, 241 (2009). Thus, we held that their admission at trial likely was "a real factor in the jury's

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deliberations," such that the results of the reexamination "cast real doubt on the justice of the defendant's conviction." Sullivan, supra at 353.

In Cowels, 470 Mass. at 607-608, the Commonwealth introduced two bloody towels at trial to suggest that the two defendants had used the towels to clean themselves after stabbing and killing the victim. Testing of the towels, however, neither identified nor excluded the defendants or the victim as the sources of the blood. Id. at 608. It was not until additional testing was done on one of the towels, years after the defendants' convictions had been affirmed, that it was revealed that the blood on the towel did not belong to either the defendants or the victim, but instead belonged to an unidentified male. Id. In ordering a new trial, this court emphasized that there was no forensic evidence at the crime scene linked to the defendants. Id. at 619. In a case with a "dearth of physical evidence," the towels served as the most important piece of evidence to corroborate the testimony of the prosecution's key witness, who presented significant credibility issues. See id. Thus, the towels likely were a real factor in the jury's deliberations and ultimate convictions of the defendants. Id. at 623-624.

Here, unlike in Sullivan and Cowels, there existed other substantial physical evidence linking the defendant to the crime, including type O blood on the defendant's pants, [Note 14] occult blood on the defendant's hands, blood on the defendant's shirt and sneakers, and a bloody footprint on a pillowcase that matched the defendant's footprint. Cf. Cowels, 470 Mass. at 619; Sullivan, 469 Mass. at 352. Thus, contrary to the defendant's argument, the hair found in the victim's hand at the scene of the crime was not the only piece of physical evidence linking the defendant to the crime. Cf. Sullivan, supra.

The hair also was not the sole piece of evidence that discredited the defendant's version of the events of the crime, as the defendant's significant credibility issues likely resulted from his own trial testimony, which almost entirely contradicted his previous recorded statement to the police shortly after the murder. Cf. Cowels, 470 Mass. at 621-622 (bloody towels served as crucial piece of evidence supporting Commonwealth's argument to jury that they should credit key witness's testimony).

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In sum, the hair evidence "cumulatively . . . pointed to a strong, if not overwhelming showing that the defendant was in fact the perpetrator." See Commonwealth v. Pandolfino, 33 Mass. App. Ct. 96, 102 (1992) (hair sample from defendant's mask not significant factor in jury's deliberations where other evidence, including defendant's clothes matching description of perpetrator's clothes, scratch marks on defendant's face, defendant's geographic and temporal proximity to crime scene, and multiple identifications of defendant as perpetrator of crime, overwhelmingly supported defendant's convictions). It was neither the linchpin of the Commonwealth's case, cf. Commonwealth v. Cameron, 473 Mass. 100, 110 (2015) (DNA evidence from complainant's underwear tipped scale against defendant at trial, and newly discovered evidence eliminated defendant as source of semen on complainant's underwear, thus negating key piece of physical evidence that was real factor in corroborating complainant's testimony), nor was it the piece of evidence that was more credible than any other piece of evidence on the defendant's guilt as a joint venturer in the armed robbery and murder of the victim, cf. Cowels, 470 Mass. at 621-622.

Therefore, where the hair evidence merely was cumulative of much of the physical evidence admitted to support the defendant's conviction of murder in the first degree, and where there was overwhelming evidence to support the defendant's conviction on a theory of felony-murder, we conclude that the statistical probability that supported Godleski's hair comparison testimony was not a real factor in the jury's deliberations, despite the Commonwealth's emphasis on the importance of the hair evidence in closing argument, as elimination of the evidence from the jury's calculation does not cast real doubt on the justice of the defendant's convictions. See Sullivan, 469 Mass. at 351-352. Accordingly, we affirm the denial of the defendant's motion for a new trial.

So ordered.