Opinion
14-P-1461
07-31-2015
COMMONWEALTH v. RICKY BETHUNE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions on two counts of breaking and entering during the daytime with the intent to commit a felony, in violation of G. L. c. 266, § 18, and one count of stealing in a building, in violation of G. L. c. 266, § 20. The convictions stem from two criminal episodes: a breaking and entering on April 5, 2012, when police observed the defendant walking down the street with a jewelry box, which they later learned had been stolen from a nearby house; and a second breaking and entering on April 17, 2012, when the defendant was observed by police as he fled from a house whose burglar alarm had been tripped. The defendant argues, with respect to the second incident, that the judge erred by failing to instruct the jury sua sponte on eyewitness identification pursuant to Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979), and its progeny, thereby creating a substantial risk of a miscarriage of justice. He also argues the judge erred by failing to sever the charges sua sponte. We affirm.
See Commonwealth v. Franklin, 465 Mass. 895, 910 n.24 (2013).
1. Rodriguez instruction. The defendant argues that, because identification was the sole issue with respect to the second incident, the judge had an obligation to give, sua sponte, an identification instruction consistent with Rodriguez. We begin by reviewing the pertinent facts.
A police officer heard a voice alarm ("You are an intruder. The police are being called") go off at the same time he happened to be parking his car for unrelated reasons across the street. He approached the house from which the alarm was sounding, and saw a black man wearing a blue tank top exit. The officer called out, but the man ran away. The officer and a second officer, who had also heard the alarm and had seen the man in the house, pursued the man after the first officer yelled for him to stop. The first officer eventually could not keep up and lost sight of the man. The second officer continued the chase but he later also lost sight of the man. A third officer, responding to a report of the chase, saw a man running who matched the description. The third officer saw the man hide next to a trash compactor behind a school and apprehended him there. The first two officers arrived immediately and identified the man as the person who had fled the home three or four minutes earlier. The suspect identified himself as Ricky Bethune (the defendant). In addition, the defendant (referring to the first officer) stated, "The big guy was going to beat [me] up," or "That was the guy that was chasing me."
Even were we to assume, arguendo, that under this set of facts it was error for the judge not to give a sua sponte Rodriguez instruction, where, as here, the defendant failed to object to the instructions at trial, we review them to determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Shea, 467 Mass. 788, 790-791 (2014). We discern no substantial risk of a miscarriage of justice here. The Rodriguez instruction, as supplemented by subsequent case law, "focuses the jury on factors they 'should consider' that may affect the accuracy of an eyewitness's positive identification of the defendant, and poses questions the jury should ask themselves." Commonwealth v. Gomes, 470 Mass. 352, 361-363 (2015). These factors include "(1) the opportunity the witness had to observe the offender; (2) the length of time between the crime and the identification; (3) the witness's prior familiarity with the offender; (4) the circumstances surrounding any identification procedure; (5) whether the identification procedure was a lineup or photographic array rather than a single-person showup; (7) [sic] whether the witness failed to make an identification or made an inconsistent identification before identifying the defendant; and (8) the credibility of the witness." Id. at 361. The instruction is geared towards the typical situation where a nonpolice bystander makes an out-of-court identification to police.
Although in Gomes the Supreme Judicial Court introduced new provisional model jury instructions on identification that modify the instructions discussed here, the new instructions were for future trials only and do not apply to this case, which was tried in 2013. See Commonwealth v. Gomes, 470 Mass. at 376. See also Commonwealth v. Bastaldo, 472 Mass. 16, 22-23 (2015).
Here, by contrast, two eyewitness police officers testified that they saw the defendant inside the victim's house and pursued him on foot when he fled the scene. The arresting officer was not an eyewitness to the crime, but testified that he saw the defendant running and attempting to hide, and that when he arrested the defendant, the defendant was "sweating" and "breathing heavy." In addition, upon arrest, the defendant stated that one of the eyewitness officers had been chasing him, corroborating the officer's testimony about the foot pursuit. See Commonwealth v. Rosado, 428 Mass. 76, 79-81 (1998) (erroneous omission of "honest but mistaken" identification instruction not prejudicial given eyewitness's initial and subsequent identifications of defendant burglar by his clothes, corroboration by police officer's description of same clothes and discovery of three screwdrivers on defendant's person, and the short time frame involved). Contrast Commonwealth v. Williams, 54 Mass. App. Ct. 236, 244 (2002) (reviewing for prejudicial error, the court could not "be confident that the conclusion would have been the same had the jury been sufficiently instructed on identification" where there was "one eyewitness, no corroborating evidence, and contrary defense testimony").
The defendant argues his theory of the case was not "so implausible" as to eliminate the need for a Rodriguez instruction. Commonwealth v. Monteiro, 51 Mass. App. Ct. 552, 561 (2001). In the defendant's closing, he argued that he had been the victim of racial profiling. The defendant presented no evidence of this, however; nor did he elicit the possibility on cross-examination of the Commonwealth's witnesses. Cf. ibid. (defendant testified that he fled high crime area out of fear for his safety after passerby shouted "run"); Commonwealth v. Williams, supra at 237-238, 243-244 (defendant's testimony directly contrary to eyewitness police officer's). Given the strength of the case against the defendant, the omission of the Rodriguez instruction did not create a substantial risk of a miscarriage of justice.
The defendant also argues that the judge abused his discretion by failing to instruct the jury sua sponte on cross-racial identification. See Commonwealth v. Jean-Jacques, 47 Mass. App. Ct. 909, 910-911 (1999). Even assuming, arguendo, such an obligation generally existed at the time of trial, the evidence did not warrant such an instruction in this case. See Commonwealth v. Hyatt, 419 Mass. 815, 818 (1995); Commonwealth v. Jean-Jacques, supra at 910.
2. Joinder. The defendant next argues the judge erred by failing to sever the charges sua sponte pursuant to Mass.R.Crim.P. 9(a)(3), 378 Mass. 859 (1979). "Where offenses are related as defined in rule 9(a)(1), '[t]he trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.'" Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005), quoting from Mass.R.Crim.P. 9(a)(3). Offenses are "related" under the rule "if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Mass.R.Crim.P. 9(a)(1). Thus, joinder is proper if the evidence "could permissibly be found to indicate a common plan by the defendant," or if the "separate incidents were close enough in time and space, and of the same general nature." Commonwealth v. Mahar, 21 Mass. App. Ct. 307, 317 (1985). Here, as the defendant concedes, the crimes occurred twelve days apart. Although there were only two criminal episodes, the defendant used the same method of breaking and entering -- forcing through the door for each. See Commonwealth v. Pillai, 445 Mass. 175, 182 (2005). The defendant has failed to show the offenses were unrelated. See Commonwealth v. Gaynor, supra.
Even assuming the defendant had met this burden, he has not shown prejudice "so compelling that it prevented him from obtaining a fair trial." Commonwealth v. Wilson, 427 Mass. 336, 346 (1998). The judge instructed the jury not to consider the charges as propensity evidence and to consider each charge independently. See Commonwealth v. Gray, 465 Mass. 330, 336 (2013) ("The judge gave repeated, strong instructions that the Commonwealth had the burden of proving each separate indictment beyond a reasonable doubt"). The defendant has not shown prejudice "beyond the curative powers of the court's instructions." Commonwealth v. Helfant, 398 Mass. 214, 230 (1986).
Judgments affirmed.
By the Court (Berry, Wolohojian & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 31, 2015.