Opinion
15-P-601 15-P-603
04-21-2017
COMMONWEALTH v. Michael S. GINNETTI (and fifteen companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendants were convicted of various crimes arising out of the armed robbery of a bank in Saugus, the ensuing high-speed automobile chase, carjacking, and gunfight. In these, their direct appeals, they each raise different arguments. Megna argues (1) statements he made to police while hospitalized should have been suppressed, (2) there was insufficient evidence that Megna was a joint venturer, and (3) improper comments during the prosecutor's opening created a substantial risk of a miscarriage of justice. Ginnetti argues (1) the jury improperly considered evidence of the carjacking and subsequent gunfight to assess his guilt, (2) testimony concerning the ACE-V fingerprint methodology (analysis, comparison, evaluation, and verification) violated his constitutional right to confrontation, and (3) cumulative error. We affirm the judgments as to both defendants.
The defendants were convicted of two counts of armed masked robbery, three counts of assault by means of a dangerous weapon, assault by means of a dangerous weapon (as a lesser included offense of armed assault with intent to rob), possession of a firearm during the commission of a felony, and carrying a firearm without a license. In addition, Ginnetti was convicted of wearing body armor while committing a felony, and being a felon in possession of a firearm.
The defendants were tried together, but have separately appealed. Although their appeals have not been formally consolidated, we consider their arguments together in this single memorandum of decision.
1. Background. Two men, later identified as Ginnetti and William Ekasala, both wearing plastic masks and brandishing guns, entered Saugusbank shortly before closing on March 23, 2012. Ginnetti wore a gray hooded sweatshirt with the hood up, jeans, sneakers, and dark gloves. Ekasala wore a dark sweatshirt with "Abercrombie Fitch" written in large letters on its front, a dark knit cap bearing the letters "FBI," jeans, sneakers, and gloves. After ordering the employees and customers to the ground, threatening to shoot and kill them, and instructing the tellers to empty their drawers and cabinets of cash, the robbers left the bank with $5,287.90, much of it wrapped in brown paper bands. They got into a stolen red two-door Honda Civic that was waiting out front and driven by Megna. A bank employee observed and was able to report three digits of the rear license plate. Police soon spotted the car and a high-speed chase ensued. Ultimately, the car turned into the parking lot of an apartment complex in Malden. Megna got out of the car holding a police scanner and black bag. Ginnetti and Ekasala also got out of the car. Megna threw the scanner into a trash barrel from which it was later retrieved; subsequent testing revealed Megna's thumbprint.
Meanwhile, to her grave misfortune, a resident of the apartment complex drove into the parking lot with her five month old son strapped into a carseat in the back seat. Ekasala and Megna opened the doors of her car, told her they needed it to get away from the police, but permitted her to remove her baby. Megna got into the driver's seat, but his efforts to drive away were foiled by the fact that he did not know how to operate a manual transmission. An officer arrived with his weapon drawn and ordered the men out of the car. Megna complied with his hands on his head. Ekasala, by contrast, emerged with his gun and ran, ducking between two parked cars and then shooting at the officer, who returned fire.
Ekasala then ran into the street, obtained and began to drive another vehicle and engaged in a gun battle with police during which he was fatally shot. He was still wearing the Abercrombie & Fitch sweatshirt, a mask (bearing his palm print) was in the pocket, the revolver used in the robbery was on the driver's side floorboard, and a black nylon bag containing $2,247 was on the front passenger seat.
Ginnetti meanwhile had crossed the street and walked to the parking lot of a paint store whose owner observed him looking distraught and holding something in his jacket or pocket. The owner observed Ginnetti walk to an adjacent parking lot and try to enter a green van. Ginnetti then walked into a wooded area, where he was apprehended by police. He was wearing a gray hooded sweatshirt, jeans, sneakers, and a Kevlar vest, and he had a semi-automatic pistol at his midsection, a pair of black leather gloves, a pack of cigarettes, a screwdriver, and a black canvas bag containing $2,660, some of which was wrapped in brown paper bands.
Megna eluded immediate capture by hiding in a stairwell within the apartment complex. Surveillance footage showed he entered the building at 4:55 p.m. and remained there until around 8:00 p.m. when he was discovered by a SWAT team.
Two days later, while in custody, Megna complained of chest pain and was taken to Whidden Memorial hospital in Everett, accompanied by two Malden detectives. There, he told one of the detectives that his clothes were in the trunk of his gold Lincoln town car, which was parked in the lot of J. Pace grocery store in Saugus. Surveillance footage showed that, less than one-half hour before the robbery, Megna, Ekasala, and Ginnetti had met at the parking lot, supplied themselves for the robbery with items taken from the Lincoln's trunk, and then together drove away in the red two-door Honda in the direction of the bank.
2. Megna. a. Motion to suppress. Megna argues that his statements at the hospital should have been suppressed because they were the product of custodial interrogation and the effect of the Miranda warnings he had been given two days earlier had dissipated. "[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation." Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Here, as the two officers who had accompanied him to the hospital were speaking with each other, Megna interjected and asked if he could ask Detective Mitchell something. The detective, who knew that Megna had invoked both his right to remain silent and his right not to speak without an attorney two days earlier when he had been read his Miranda rights, responded, "You can't ask me anything and I'm not going to be answering anything." The detective added that he did not want to end up being questioned in court by Megna's attorney.
Three or four minutes later, Megna again initiated conversation, asking, "Can I ask you something." The detective responded, "What do you need to know?" at which point Megna asked why his clothes had been taken. Mitchell responded that the clothes had been seized as evidence.
A few minutes after this, Megna, catching sight of medical personnel, stated that he did not wish to go to court dressed in a hospital gown and asked Mitchell if he could instead have some scrubs. Megna added that his own clothes were in his car. Mitchell responded, "What car?" And Megna said he wanted to get his clothes out of his gold Lincoln town car, which was parked in the J. Pace parking lot.
The issue here is whether Mitchell's question, "What car?" constituted custodial interrogation. It is undoubtedly true that Megna was in custody when the question was posed. But that is not dispositive. When a suspect voluntarily initiates conversation about his case, Miranda warnings are not required. See Commonwealth v. Stroud, 375 Mass. 265, 270-271 (1978) ; Commonwealth v. Ferrer, 68 Mass. App. Ct. 544, 546 (2007). Nor are they required when a suspect voluntarily initiates conversation, and the police merely respond with "a natural reflex action ... invited by the defendant's ... statement." Commonwealth v. Diaz, 422 Mass. 269, 271 (1996). See Commonwealth v. Fortunato, 466 Mass. 500, 511 (2013). Moreover, if, after a suspect initiates a conversation, the police verbally indicate that "right now's not the time to talk," "[a] reasonable person in the same circumstances as the [suspect] would not have perceived that he was then being subject to an interrogation or that the [police] were trying to elicit incriminating responses from him." Commonwealth v. Gonzalez, 465 Mass. 672, 676 (2013). Here, we see no error in the judge's conclusions that the detective's question was merely reflexive or that no reasonable person would have felt interrogated under the circumstances.
Postargument, the parties submitted a stipulation pursuant to rule 8(e) that the reporter had incorrectly transcribed the judge's finding that the officer's statement was "reflexive" as "reflective."
b. Sufficiency of the evidence. "In reviewing the denial of a motion for a required finding of not guilty, we must determine whether the evidence, including inferences that are not too remote according to the usual course of events, read in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt." Commonwealth v. Nolin, 448 Mass. 207, 215 (2007). "[T]he evidence and the inferences permitted to be drawn therefrom must be of 'sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.' " Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Commonwealth v. Cooper, 264 Mass. 368, 373 (1928).
The defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he "knowingly participated in the commission of the [bank robbery], with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). We review to determine "whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime, rather than examine the sufficiency of the evidence separately as to principal and joint venture liability." Id. at 468. "Evidence may be primarily or entirely circumstantial ..." Commonwealth v. Almonte, 465 Mass. 224, 243 (2013). We take the evidence, "including inferences that are not too remote according to the usual course of events, in the light most favorable to the Commonwealth." Nolin, supra.
Here, examining the evidence in the light most favorable to the Commonwealth, there was sufficient evidence for the jury to find beyond a reasonable doubt that Megna knowingly and intentionally participated in the crimes charged. Although Megna is correct that he was not "seen" at the bank, nor was there evidence that he carried a weapon or that he had any of the stolen money, there was ample circumstantial evidence that he helped plan and carry out the bank robbery. Surveillance footage showed that Megna met Ginnetti and Ekasala at the J. Pace parking lot about one-half hour before the robbery and that items were either retrieved from, or placed in, the trunk of his car. All three men left together in the stolen red Honda used as the get-away car in the robbery. A witness at the apartment complex identified Megna as the driver of the red Honda. Given the high-speed chase that ensued immediately after the robbery, it is not plausible to think that Megna somehow landed in the driver's seat of the red Honda without prearrangement. Megna got out of the getaway car holding one of the instrumentalities of the crime, a police scanner, which he attempted to dispose of in a trash barrel. He voluntarily took on the role of driver of the hijacked car. His consciousness of guilt could be inferred from his action of hiding for several hours under the stairs in the apartment complex. The judge did not err in denying the defendant's motion for a required finding of not guilty.
c. Opening statement. For the first time on appeal, Megna argues that the prosecutor departed from the permissible bounds of opening statements by referring to him as the "getaway driver." As we discussed above, this statement was a fair inference from the evidence and, therefore, the prosecutor was entitled to state it in his opening. "A prosecutor may generally 'state anything in his opening statement that he expects to be able to prove by evidence,' including facts that would have to be proved by inferences." Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 305 (2007), quoting from Commonwealth v. Cohen, 412 Mass. 375, 382 (1992).
3. Ginnetti. a. Evidence of carjacking and gunfight. Ginnetti argues that the jury improperly considered evidence of the carjacking and gunfight in assessing his guilt, depriving him of his due process right to a fair trial. We begin by noting that Ginnetti does not appeal from the denial of his motion to sever, and that he does not argue (let alone demonstrate) that the evidence should not have been admitted against his codefendant Megna. In addition, Ginnetti refused the judge's offer to instruct the jury that the evidence could only be used against Ginnetti for the limited purpose of establishing his state of mind and identity. Given these circumstances, Ginnetti's argument is more properly understood to be that the judge should have instructed the jury that the evidence could not be used for any purpose against Ginnetti, despite Ginnetti's refusal to have the judge instruct the jury that it could only be used for a limited purpose. Whatever the merits of that argument might be, the quantum of prejudice resulting from the difference between the instruction he refused and the one he wanted is impossible to see even under the standard of prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). An error is not prejudicial in the face of overwhelming evidence of guilt. See Commonwealth v. Mattier, 474 Mass. 261, 271, 273 (2016). The defendant was found by police wearing the same clothing as one of the bank robbers, carrying a gun used in the robbery, wearing a Kevlar vest, and carrying a black bag containing money stolen from the bank—all this near where the other two robbers were apprehended, and having arrived there in the same car used in the robbery.
b. Fingerprint testing testimony. Ginnetti argues that admission of testimony concerning the ACE-V fingerprint test protocol violated his confrontation right under the Sixth Amendment to the United States Constitution. Specifically, he contends that it was error to permit Trooper Perry, who performed the fingerprint analysis, to testify that, according to protocol, two other qualified examiners also had to evaluate the prints using the same methodology and "come to their own determination of whether they agree or disagree with my determination." As soon as the trooper so testified, the judge called counsel to sidebar and asked whether there was an objection on confrontation grounds. The prosecutor stated that he did not intend to have the trooper testify to the conclusions reached by the other examiners who verified the print. Defense counsel did not object.
On appeal, Ginnetti argues that, although the trooper did not testify as to the conclusions reached by the other examiners, it was implicit that they verified his conclusion and, thus, this "testimonial scheme" violated his right to confront the other examiners. "Where testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 68 (2004). A forensic or scientific opinion expert cannot, therefore, "present on direct examination the specific information on which he or she relied" in reaching his or her opinion and "the expert witness must have the capacity to be meaningfully cross-examined about the reliability of the underlying data." Commonwealth v. Jones, 472 Mass. 707, 713 (2015), quoting from Commonwealth v. Greineder, 464 Mass. 580, 583, 595, cert. denied, 134 S. Ct. 166 (2013). Here, Trooper Perry was available to be cross-examined fully by Ginnetti, and the testimony to which Ginnetti objects did not reveal any information upon which the trooper relied in reaching his opinion. Nor did he reveal any testimonial out-of-court statement. All that said, even were we to assume error, in the face of the overwhelming evidence of Ginnetti's guilt, as set out above, it certainly did not result in a substantial risk of a miscarriage of justice. See Commonwealth v. Amirault, 424 Mass. 618, 647 (1997) (a substantial risk of a miscarriage of justice occurs where "the evidence and the case as a whole ... [leave the court] with a serious doubt that the defendant['s] guilt had been fairly adjudicated").
To the extent Ginnetti raises an ineffective assistance of counsel claim based on trial counsel's failure to preserve the error, the same substantial risk standard applies. See Commonwealth v. Edward, 75 Mass. App. Ct. 162, 165 (2009).
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c. Cumulative error. Ginnetti's argument of cumulative error fails for the same reasons we have set out above.
Judgments affirmed.