Opinion
10-P-1175
01-13-2012
COMMONWEALTH v. MARK CARDAROPOLI.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of armed robbery (two counts), G. L. c. 265, § 17; assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b); and assault and battery, G. L. c. 265, 13A. The victims were two teenagers who drove to East Longmeadow to buy marijuana from a man they knew as 'Chuck.' While waiting in their car, the youths were attacked by two men: Chuck (on the passenger side) and someone they did not recognize (on the driver's side). The primary issue at trial was the identification of the defendant as the assailant on the driver's side of the car.
On appeal, the defendant argues that he was deprived of the effective assistance of counsel because his counsel (1) failed to object to the admission of 'guilt by association' evidence and to the prosecutor's argument concerning such evidence; and (2) failed to object to the admission of hearsay testimony. Where, as here, a defendant argues that his counsel's ineffectiveness was the failure to preserve an issue for appeal, we review to determine whether an error has been committed and if so, whether it gives rise to a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 296 (2002). '[I]neffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not.' Ibid.
Contrary to our preferred practice, the defendant raises these arguments for the first time on appeal, rather than in a motion for new trial. However, we consider the factual bases for the claims to be sufficiently clear on the record to enable us to consider them. Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
1. Association evidence. The defendant argues that his attorney erred by not objecting to testimony that he and Charles (Chuck) Correa are brothers and lived together. The defendant argues that such testimony was inadmissible and was used to prove 'guilt by association.' We disagree. The question is 'not whether the defendant's association with the principal felons was admissible -- which it was -- but whether that evidence, standing alone, would support a conviction.' Commonwealth v. Borans, 379 Mass. 117, 148 n.29 (1979) (discussing Commonwealth v. Fancy, 349 Mass. 196, 207 [1965], and Commonwealth v. Perry, 357 Mass. 149, 151 [1970]). Although a conviction cannot rest on association evidence alone, evidence of association is admissible as circumstantial evidence of the identity of the perpetrator. Commonwealth v. Kelley, 370 Mass. 147, 151 (1976) (evidence of defendant's later association with known participant in the charged crimes 'could properly serve to bolster the evidence as to the defendant's direct participation' in the crimes).
This was not a case where the Commonwealth sought a conviction on association evidence alone. The victim on the driver's side (who was closest to the defendant) identified the defendant from a photographic array and stated that he was certain the defendant was the man who had attacked him, reciting particular facial features to explain his certainty. In addition, the defendant matched the physical descriptions provided contemporaneously by both victims. Evidence that the defendant and Correa are brothers and lived together was admissible to corroborate and bolster the driver-victim's identification of the defendant. See ibid. (defendant was not convicted only on proof of association where he was 'directly identified by eyewitnesses at the scene of the crimes'); Commonwealth v. Picher, 46 Mass. App. Ct. 409, 415 (1999) ('The defendant's contention [that the prosecutor suggested guilt by association] ignores the facts that both victims separately identified the defendant through the same photographic array shortly after the incident; that they made in-court identifications of the defendant . . .; and that the defendant's unusual height . . . may well have contributed to the positive identifications'). Contrast Commonwealth v. Thomas, 52 Mass. App. Ct. 286, 293 (2001) (prejudicial error where 'apart from the defendant's association with the driver and his presence in the car, there was nothing in the evidence . . . to support a reasoned inference that the defendant knew of or had access to' drugs found in the car). Counsel, accordingly, cannot be faulted for failing to object to admissible evidence or to the prosecutor's use of such evidence in closing argument. Commonwealth v. Cohen, 412 Mass. 375, 392 (1992) (counsel was not ineffective for failing to object to admissible testimony).
The defendant argues that the prejudice flowing from counsel's failure to object to the association evidence was heightened by admission of evidence that cigarettes of the brand smoked by the defendant were found at the scene of the crime, and by the jury instruction concerning identifying the defendant from out of a group of others. Where, as here, there was no error, we do not reach the question of prejudice.
2. Hearsay. The defendant argues that his lawyer was ineffective by eliciting, on cross-examination, inadmissible hearsay testimony from Officer Manning that he had been told that Charles Correa went by the nickname 'Chuck.' The defendant also argues that his counsel was ineffective when he did not object to Officer Manning's testimony that he had been told (by an unspecified person) that the defendant was believed to have had a full beard at the time of the crime.
We assume error, arguendo, but conclude that admission of the hearsay evidence did not result in a substantial risk of a miscarriage of justice. In determining whether such a risk exists, we consider 'the strength of the Commonwealth's case against the defendant . . ., the nature of the error, [and] whether the error is 'sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).
The officer's testimony that Correa's nickname was 'Chuck' was completely duplicative of the victims' admissible testimony. The officer's statement added nothing new to the case. In addition, there was really no dispute that the second assailant was known to both victims as 'Chuck'. As the defendant acknowledges, 'Correa was clearly one of the assailant/robbers. As to this there could be no mistake because both [victims] knew 'Chuck' from having bought marijuana from him in the past. Their history of contact with 'Chuck' made their identifications of him virtually unassailable.' Given the strength of the victims' identifications of the second assailant as 'Chuck,' duplicative hearsay evidence through the officer of the same nickname did not create a substantial risk of a miscarriage of justice. See Commonwealth v. O'Connor, 407 Mass. 663, 670 (1990) (no prejudicial error where hearsay statements of what victim said added nothing to victim's earlier testimony).
Likewise, admission of the officer's statement that he had been told the defendant had a beard did not result in a substantial risk of a miscarriage of justice. The driver-victim's identification of the defendant, both in court and from the photographic array, was strong and unequivocal. See Commonwealth v. Martin, 447 Mass. 274, 286 (2006); Commonwealth v. Cash, 64 Mass. App. Ct. 812, 815-816 (2005). Moreover, the driver-victim testified that he identified the defendant based on features other than his beard. The jury could easily credit this testimony because the defendant's photograph in the array showed him without a beard. In addition, the defendant matched the approximate complexion, height, and weight the victims contemporaneously described. Finally, the defendant was the brother and roommate of the known assailant, which further reduces the significance of the hearsay evidence.
The Commonwealth's contention that the fact that the defendant was believed to have had a full beard was offered to show police knowledge and therefore does not constitute hearsay is incorrect. A narrow category of extrajudicial statements is admissible to explain an officer's presence and conduct at the scene of an investigation; however, 'the testimony may not be used for the truth of the statement that served as the basis for the officer's knowledge.' Commonwealth v. Rosario, 430 Mass. 505, 508-509 (1999). Regardless of the admissibility of Officer Manning's testimony as evidence of police knowledge, the Commonwealth used the fact that the defendant had a full beard substantively in its opening and closing statements, thus exceeding the scope of the police knowledge exception.
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For these reasons, the judgments are affirmed.
So ordered.
By the Court (Green, Sikora & Wolohojian, JJ.),