Opinion
No. 11–P–1525.
2013-01-30
COMMONWEALTH v. Eric M. BUSUITO.
By the Court (CYPHER, KAFKER & KATZMANN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Eric M. Busuito, was convicted of larceny over $250, G.L. c. 266, § 30(1) .
On appeal, he claims that unchallenged opinion evidence of the store's loss prevention officer detailing the larceny scheme used by the defendant resulted in a substantial risk of a miscarriage of justice. He also claims that defense counsel was ineffective for failing to object to the testimony in question. Finally, the defendant contends that other unobjected-to testimony of the witness was admitted in violation of both the rule against hearsay and his confrontation rights, creating a substantial risk of a miscarriage of justice, and that counsel was ineffective in failing to oppose its admission. We affirm.
The defendant was also charged with conspiracy to commit larceny, a count which was later dismissed at the request of the Commonwealth.
Discussion. a. Opinion testimony. On appeal, the defendant challenges Gullet's testimony identifying the defendant on the surveillance videos, and claims that his testimony about the “box stuffing” scheme and the defendant's ability to lift the art desk box constituted improper comments on the ultimate issue of the case. Because defense counsel did not object to any of the testimony at issue, we review for a substantial risk of a miscarriage of justice.
i. Identification. The defendant claims that Gullet's testimony identifying the defendant on the store surveillance video clips and photographs is inadmissible because the jury were equally capable of making a determination on the basis of their own viewing of the same videos and photographs. See Commonwealth v. Austin, 421 Mass. 357, 365–366 (1995). Even if the testimony constituted error, however, we have no “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). The defense conceded the issue at trial. In counsel's closing argument, she specifically argued to the jury that the videos merely depicted the defendant purchasing a Costco membership, and then later innocently purchasing a child's art desk box. (There is, moreover, nothing in the materials before us to suggest that this was an unreasonable defense strategy.)
The defendant also argues that defense counsel's failure to object to the testimony in question constituted ineffective assistance of counsel. “[W]hen the claim of ineffectiveness is predicated ... on counsel's failure to object to something that occurred at trial, the standard for evaluating the ineffectiveness claim is not significantly different from the substantial risk standard that is applicable to our review of the underlying, unpreserved error.” Commonwealth v. Munoz, 461 Mass. 126, 141 n. 20 (2011), quoting from Commonwealth v. Azar, 435 Mass. 675, 686 (2002).
ii. Ultimate issue. The defendant next claims that Gullet “strayed beyond what is admissible and intruded upon the domain of the trier of fact when he narrated for the jury his theory of how the theft occurred and why he believed [the defendant] was guilty of the theft.” In particular, the defendant points to Gullet's opinion testimony that, upon viewing the video of the defendant picking up the art desk box, “[y]ou can tell there's weight in that box, the weight of the two [televisions],” and his testimony as to box stuffing, including his statement, “[b]asically, it was as simple as that.” We disagree with the defendant's characterization of the testimony, which we have read carefully (especially trial transcript pages 51–53).
Opinion testimony may “touch” on an ultimate issue in a case, if couched in appropriate language, but an expert cannot directly speak to, or express a point of view about, the issue of the defendant's guilt or innocence. See Commonwealth v. Woods, 419 Mass. 366, 374–375 (1995); Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 579–580 (1998). The key is whether the testimony in question is presented in an educational, explanatory fashion intended to aid the jury in understanding the evidence, or in conclusory form. See ibid.; Commonwealth v. Grissett, 66 Mass.App.Ct. 454, 457–458 (2006).
In this case, whether or not Gullet testified as an expert in loss prevention,
his testimony served to explain to jurors the actions he took upon learning of the loss of two televisions from the store's inventory. Those actions included viewing store surveillance videos and consulting computerized inventory. With the information he gathered, including his observation of the defendant lifting the art desk box, Gullet was able to piece together a theory of how the theft occurred, which he submitted to the Waltham police department. Likewise, Gullet's explanation of the videos as they were being played to the jury oriented the jurors to what they were seeing as the individuals were moving about the store. The witness did not, however, directly opine about the defendant's guilt or innocence. There was no error.
Although Gullet was not expressly qualified as an expert at trial, during direct examination he testified to his knowledge and experience as a loss prevention officer. See Commonwealth v. Rivera, 425 Mass. 633, 644 (1997) (judge need not explicitly qualify an expert).
b. Hearsay and confrontation. The defendant lastly argues that Gullet's unchallenged testimony about where the recovered television boxes and pieces of the art desk were found in the store was inadmissible as hearsay statements of unidentified sources and was admitted without the necessary confrontation of those sources. The principal problem with these claims is that the transcript strongly suggests Gullet's testimony was based on his personal knowledge and was not the conveyance of out-of-court statements of others.
To the extent any of his testimony reflected out-of-court statements,
We bear in mind the defendant's burden of demonstrating error on appeal. See Commonwealth v. De Christoforo, 360 Mass. 531, 536 n. 2 (1971).
its admission did not rise to the level of a substantial risk of a miscarriage of justice. Although relevant, the information about where the items were found in the store was not critical to proving the larceny.
The closest the defendant comes to identifying any hearsay is where he refers to Gullet's testimony, in response to the prosecutor's question about where the remains of the art desk were found, that, “It was in that vicinity. I wasn't—those—I wasn't (inaudible at 12:27:19, away from microphone) that was recovered earlier that morning on the [first] and put into a box and left in my office.” (The defendant did not settle any inaudible portions of the transcript.) We consider this testimony equivocal as to whether Gullet had personal knowledge.
Judgment affirmed.