Opinion
No. 15–P–3.
05-12-2016
COMMONWEALTH v. Gene A. DISORDA, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Gene A. Disorda, Jr., was convicted of communicating a threat to discharge an explosive device, a chemical or biological agent, a poison, or a harmful radioactive substance. On appeal, he argues that the trial judge erred in precluding him from presenting third-party culprit evidence. We affirm.
The defendant was sentenced to a term of two to three years of incarceration from and after the sentence he was then serving.
Background. On November 9, 2012, the defendant approached correction Officer Christopher Casey and asked him how to spell Sheriff Ashe's name. The defendant said that he was writing a letter on behalf of another inmate who had difficulty writing. Officer Casey wrote out the name “Sheriff Michael J. Ashe” on a piece of paper and gave it to the defendant. The defendant returned to his cell with the piece of paper and, less than one hour later, he returned with a sealed envelope addressed to Sheriff Michael J. Ashe and gave it to Officer Casey to mail. Despite the fact that the sender was listed as “Cane Taylor,” and not the defendant, and also that there was no inmate number listed on the envelope, Officer Casey placed it in the outgoing mail.
Hampden County House of Correction policy requires that outgoing inmate mail display the correct name and inmate number of the sender on the envelope. Officer Casey testified that he did not find the incident too unusual and did not include it in his incident log that evening.
On November 13, 2012, Katherine Fitzgerald, Sheriff Ashe's administrative assistant, opened and read a letter addressed to Sheriff Ashe and sent from the jail; she determined that the letter was a threat and immediately reported it. Lieutenant Alfred Ingham, the criminal investigation commander at the Hampden County Sheriff's Department, read the letter and confirmed that: (1) the four inmates named in the letter and on the envelope, i.e., Christian Barbee, Russell Cooper, Kane Taylor, and the defendant, were, in fact, inmates at the house of correction at that time; and (2) that the purported author, “Cameron,” possibly was recently released inmate Cameron Hibbert.
The letter was purportedly signed by someone named Cameron, who said he had been released in September, 2012, after serving a sentence for possession of weapons of mass destruction and possession of explosive devices and explosive material. According to the letter, twelve devices were set to release anthrax into the Springfield water supply, and into schools, apartment buildings, and nursing homes, unless inmates named Christian Barbee, Russell Cooper, and Gene Disorda, the defendant, were released from jail. The author also warned that he knew where Sheriff Ashe and his family lived. The return address on the letter was “Cane” (Kane) Taylor.
As part of his investigation, Ingham interviewed Taylor, Cooper, Barbee, and the defendant, but was unable to contact Hibbert. Ingham advised the defendant of his Miranda rights, questioned him, and had him write a series of words chosen specifically because they had been misspelled in the letter. In particular, the defendant misspelled three of the words, “Barbee,” “Kane,” and “want,” in the same incorrect manner as in the letter. The defendant's cell was searched and several rough drafts of the letter were found among his personal papers; some of the paper was of the same type as the letter, and similar envelopes also were found.
The defendant spelled “want” as “whant,” “Kane” as “Cane,” and “Barbee” as “Barbie.”
--------
In addition, when Officer Casey learned that Sheriff Ashe had received a threatening letter, and that the defendant had been moved to a segregation unit, he reported the earlier incident involving the defendant to his supervisor and, at the supervisor's request, wrote a report of the incident. The letter and the envelope were tested for fingerprints at the State Police crime laboratory, but no usable prints were found.
Discussion. The defendant claims that the trial judge erred in allowing the Commonwealth's motion in limine to exclude third-party culprit evidence. Before trial, the defendant sought to offer, as third-party culprit evidence, a certified copy of Hibbert's conviction of possession of an infernal device. The defendant argued to the judge that, because the “letter purportedly written by [the defendant] had the name ‘Cameron’ at the bottom of it,” the letter “would simply be offered to show that there is a likely other suspect in the case.”
“ ‘A defendant may introduce evidence that tends to show that another person committed the crime or had the motive, intent, and opportunity to commit it, 57D ... and ‘[i]f the evidence is “of substantial probative value, and will not tend to prejudice or confuse, all doubt should be resolved in favor of admissibility.” ‘ “ Commonwealth v. Watkins, 473 Mass. 222, 233 (2015) (citations omitted). See Mass. G. Evid. § 1105 (2016). However, “[t]he proffered evidence must have ‘a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative.’ “ Watkins, supra at 234, quoting from Commonwealth v. Smith, 461 Mass. 435, 44546 (2012). “We do not disturb a trial judge's decision to admit or exclude such evidence unless justice requires a different result.” Commonwealth v. Perkins, 450 Mass. 834, 843 (2008), citing Commonwealth v. Conkey, 430 Mass. 139, 146 (1999), S.C., 443 Mass. 60 (2004).
Here, the trial judge determined that the proffered evidence was not relevant. He found that “there are insufficient substantial connecting links between the crime charged and the so-called third-party” and that “the evidence would tend to prejudice or confuse the jury.” Hibbert's conviction of possession of an infernal device did not diminish the defendant's culpability with regard to the letter in light of the substantial evidence against the defendant, including the rough drafts of the letter, the defendant's statement to Officer Casey, and the fact that the defendant handed Officer Casey an envelope addressed to Sheriff Ashe to put into the outgoing mail days before Sheriff Ashe received the threatening letter. See Watkins, supra at 233–234. See also Commonwealth v. Wood, 469 Mass. 266, 276 (2014) (“[W]here a defendant seeks to admit prior bad acts of an alleged third-party culprit, he must show that ‘the acts of the other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of [the] defendant as the person who committed the crime.’ Conkey, 443 Mass. at 66, quoting [from] Commonwealth v. Hunter, 426 Mass. 715, 716–717 [1998] ”).
As a result, we see no occasion to disturb the trial judge's decision to exclude the third-party culprit evidence.
Judgment affirmed.