Opinion
14-P-1080
10-08-2015
COMMONWEALTH v. KEVIN DiGREGORIO.
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, Kevin DiGregorio, appeals following jury verdicts of guilty on the following charges: home invasion, in violation of G. L. c. 265, § 18C; two counts of kidnapping, in violation of G. L. c. 265, § 26; and four counts of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A(b). The defendant contends that Anthony Dominico's statements to his friend Kevin McCaffrey were wrongfully admitted under the coventurer hearsay exception and coupled with the judge's jury instructions on the use of joint venture statements constitute error requiring a reversal. The defendant further argues that Margaret Balfe's statements did not fall under the excited or spontaneous utterance exception to the hearsay rule and therefore were inadmissible hearsay. Finally, the defendant argues that Michael DiGregorio's (Michael's) testimony about the defendant, his brother, being on parole constitutes error warranting reversal. We affirm.
The defendant and Michael, the male victim, are brothers who share the same last name; therefore, only Michael's first name will be used.
I. Joint venturer hearsay exception. The defendant and the Commonwealth disagree whether the issue was properly preserved for appellate review and therefore whether we review the trial judge's decision based on the substantial risk of a miscarriage of justice standard or on prejudicial error. Because we believe the judge was well within his discretion and properly admitted the hearsay statements under the joint venture hearsay exception, we assume without deciding that the issue was preserved for appellate review and therefore apply the more stringent prejudicial error standard.
"'Under the joint venture exception to the hearsay rule, "[o]ut-of-court statements by joint criminal venturers are admissible against the others if the statements are made during the pendency of the criminal enterprise and in furtherance of it."' Commonwealth v. Hardy, 431 Mass. 387, 393 (2000), quoting Commonwealth v. Clarke, 418 Mass. 207, 218 (1994)." Commonwealth v. Marrero, 436 Mass. 488, 493 (2002). The judge must determine, by a preponderance of admissible evidence independent of the statement at issue, whether a criminal joint venture existed between the declarant and the defendant. Commonwealth v. Silanskas, 433 Mass. 678, 692-693 (2001), citing Commonwealth v. Cruz, 430 Mass. 838, 844 (2000). See Commonwealth v. McLaughlin, 431 Mass. 241, 246 (2000). The judge is not required to make a preliminary ruling that a joint venture existed and may allow the evidence to come in subject to a later motion to strike if the prosecution does not meet its burden of showing there was a criminal enterprise. Commonwealth v. Colon-Cruz, 408 Mass. 533, 543-544 (1990). The judge must also provide a jury instruction that informs the jury that they can only consider the hearsay statements if they find that a joint venture existed on the basis of all the other evidence not including the hearsay statements. Commonwealth v. Boyer, 52 Mass. App. Ct. 590, 598 (2001).
There was sufficient evidence for the judge to determine by a preponderance of the evidence that a joint venture existed between the defendant and Dominico (the declarant) without the statement at issue. This evidence includes: the Home Depot surveillance footage of the defendant and Dominico approximately eleven hours before the incident purchasing a sledgehammer, black latex gloves, coveralls, Gorilla tape, and cable ties (zip-ties); the Gorilla tape found in Dominico's backpack and the Gorilla tape packaging found in the trash bin outside of the defendant's residence. The evidence also included the defendant's statements in Dominico's car to McCaffrey and Dave O'Callahan that he hit both victims with a sledgehammer; "stuck his fingers up [the female victim's] vagina looking for pills"; tried to cut his brother's finger off as well as "rip his balls off"; and assaulted his brother with a gun.
The trial judge reasonably could have determined by a preponderance of the evidence that the statements were made during the pendency of the criminal enterprise and in furtherance of it. The statements made by Dominico to McCaffrey were made shortly after the defendant and Dominico had purchased instrumentalities for the venture at Home Depot therefore establishing the existence of the criminal enterprise. Furthermore, the judge could have reasonably determined that the statements made by Dominico to McCaffrey were made in furtherance of the conspiracy because they were made to someone Dominico trusted and could have been made to enlist McCaffrey to aid the joint venture, which he later did.
McCaffrey aided Dominico by giving him his cellular telephone so Dominico could call him when he completed the act and get back into McCaffrey's home. McCaffrey also tried to dispose of some of the fruits of the home invasion by flushing drugs down the toilet as well as attempting to burn the money that was stolen.
The defendant also argues that the trial judge improperly instructed the jury on the law pertaining to joint venture hearsay even though he failed to object to the instruction at trial. This argument is premised on the trial judge not including an instruction stating that "the statements of coventurers could be considered only if made 'in furtherance of' the joint venture in question." The trial judge's jury instruction provided:
The trial judge gave counsel an opportunity to review the proposed jury instructions prior to McCaffrey's cross-examination.
"If you find there is sufficient evidence to support a fair inference that a joint venture existed, then you consider evidence of the acts and statements of each of the participants against the defendant. You may do so, however, only with respect to acts and statements occurring while the joint venture existed or made while the joint venturers were acting in concert to conceal the crime and that are relevant to the joint venture of which you found the defendant an actor or declarant or member."In Commonwealth v. Braley, 449 Mass. 316, 330 & n.18 (2007), the trial judge's jury instruction included identical "are relevant to the joint venture" language instead of "in furtherance of the joint venture." There was no objection to the jury instruction. The Supreme Judicial Court stated that "[a]lthough a more precise jury instruction might have been preferable, there is no merit to the point." Id. at 330. It follows from Braley that "[a]ny such error here does not give rise to a substantial [risk] of a miscarriage of justice." Id. at 331.
In Braley, the judge instructed that the jury could consider the declarant's statements and actions "only with respect to acts and statements occurring while the joint venture existed or made when the joint venturers were acting to conceal the crime, and that are relevant to the joint venture of which you have found the defendant and . . . [the declarant] were members." Braley, 449 Mass. at 330 n.18.
II. Balfe's recorded 911 call. The defendant contends that the trial judge committed reversible error when he admitted, without objection, Balfe's recorded 911 call to the Holbrook police department in evidence under the excited or spontaneous utterance exception to the hearsay rule. We disagree. "[T]he statements 'need not be strictly contemporaneous with the exciting cause.'" Commonwealth v. Marshall, 434 Mass. 358, 363 (2001), quoting from Commonwealth v. Brown, 413 Mass. 693, 695-696 (1992). "A statement may be deemed spontaneous, even if not made at a time strictly contemporaneous with the exciting cause, if 'made under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus it has sufficient indicia of reliability.' Commonwealth v. Nunes, 430 Mass. 1, 4 (1999), quoting from Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990)." Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 671-672 (2001). It was well within the judge's discretion to allow Balfe's 911 call as an excited utterance that took place approximately less than one minute after her husband and Michael called 911 and after Michael broke into the Balfe's house where Balfe saw him zip-tied, wearing only boxer shorts, and with abrasions all over his body and bleeding. See Commonwealth v. Beatrice, 460 Mass. 255, 258 n.5 (2011) ("A judge has broad discretion to decide whether a particular statement qualifies as an excited utterance"). We do not agree with the defendant that the second recording was a form of "piling on" evidence that would add nothing to the case and warrants a new trial. Contrast Commonwealth v. Pierce, 66 Mass. App. Ct. 283, 289-290 (2006).
III. Michael's testimony stating the defendant was on parole. On direct examination Michael testified that the defendant was living at their mother's house in Avon because "[h]e actually got paroled to my mother's house." The trial judge immediately ordered the latter nonresponsive reference stricken. Although this testimony is potentially prejudicial to the defendant, we do not believe that it materially influenced the verdicts. The judge expressly forbade jurors from considering any such testimony not properly admitted into evidence and stated that when ruling on an objection he might "strike the answer, which means that [the jury] cannot consider it." Because the jury are presumed to follow the judge's instructions, this is not highly prejudicial testimony that warrants a new trial. See Commonwealth v. Berry, 466 Mass. 763, 770 (2014).
Judgments affirmed.
By the Court (Kafker, C.J., Trainor & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 8, 2015.