Opinion
16-P-471
01-19-2017
COMMONWEALTH v. Joseph MARTINELLI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the judgments after his convictions of armed robbery while masked, interference with a criminal investigation, and possession of heroin. On appeal he claims error only in the instruction regarding how the jury should consider third-party culprit evidence concerning the robbery. The instruction was requested and its wording approved by trial counsel. Discerning no substantial risk of a miscarriage of justice, we affirm.
The theory of the defense, insofar as relevant here, was that the robbery, of a Subway sandwich shop, was committed by an individual who the victim (a shop employee) described to the police immediately after the robbery as a skinny Hispanic male with small facial features and a "Spanish accent." The victim further told the police that the robber looked like the "Spanish" man who had been in the shop two days before the robbery, had talked at length with the victim, and had mentioned that he, too, once worked at a Subway shop. At trial, the victim described the robber differently, and explained how he could have been mistaken in his initial description.
Defense counsel, in her closing argument, urged the jury to observe that the defendant did not match the victim's immediate postrobbery description, and she reminded the jury of testimony that the defendant did not speak with any accent. She argued that the robbery had been committed by a man fitting the initial description, rather than the defendant.
The judge instructed the jury in pertinent part as follows:
"The defendant may introduce evidence which indicates that a third party, not the defendant, committed the crime with which the defendant is charged. The defendant, however, must show some evidence which if believed tends to directly connect a third party to the crime. You must consider whether this evidence raises a reasonable doubt as to the defendant's guilt. [Emphasis supplied.]
"Bear in mind that the defendant is not required to prove that another person committed the crime, nor does the Commonwealth have to prove that no one else may have committed the armed robbery. The Commonwealth has the burden to prove the defendant's guilt beyond a reasonable doubt."
The defendant argues on appeal that this language erroneously limited the jury to considering third-party culprit evidence only if it tended to "directly connect" a third party to the crime. The defendant challenges this limitation, pointing out that the Supreme Judicial Court has "given wide latitude to the admission of relevant evidence that a person other than the defendant may have committed the crime charged. ‘If 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. Silva-Santiago , 453 Mass. 782, 800-801 (2009), quoting from Commonwealth v. Conkey , 443 Mass. 60, 66 (2004).
The court cautioned that "this latitude is not unbounded." Silva-Santiago , supra at 801. First, hearsay evidence that does not fall within a hearsay exception is permitted "only if, in the judge's discretion, ‘the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime.’ " Ibid ., quoting from Commonwealth v. Rice , 441 Mass. 291, 305 (2004) (quotation omitted). Second, the evidence, even if not hearsay, "must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative."Silva-Santiago , supra , quoting from Commonwealth v. Rosa , 422 Mass. 18, 22 (1996).
The court has also said, however, that "instructions in the third-party culprit context are not error where they adequately convey to the jury that the Commonwealth's burden includes the obligation to prove beyond a reasonable doubt that the defendant committed the crime." Commonwealth v. Hoose , 467 Mass. 395, 412 (2014). The instruction here did so. The court has also characterized as "appropriate" a third-party culprit evidence instruction that matches almost word-for-word the instruction given here, including the phrase "directly connect" of which the defendant complains. See Commonwealth v. Scesny , 472 Mass. 185, 206-207 & n.39 (2015). Although a third-party culprit evidence instruction is not required, id . at 206, we are hard pressed to conclude that the instruction given here was erroneous.
The instruction in Scesny , supra at 206 n.39, reads in pertinent part as follows:
"[T]he defendant has brought forward some evidence which might indicate that a third party, not the defendant, committed the crime for which the defendant is charged. The defendant must show some evidence which, if believed, tends to directly connect a third party to the crime.... You must consider if this evidence raises a reasonable doubt as to the defendant's guilt. Keep in mind, however, that the defendant is not required to prove another person committed the crime. On the other hand, the Commonwealth does not have the burden of proving that no one else may have committed the offenses. In the end, the burden remains with the Commonwealth to prove the defendant's guilt of the crime charged beyond a reasonable doubt."
Even if it were erroneous, we would discern no substantial risk of a miscarriage of justice. Under Commonwealth v. Randolph , 438 Mass. 290 (2002), if there was unpreserved error, we examine whether the defendant was prejudiced by the error; whether, considering the error in the context of the entire trial, it would be reasonable to conclude that the error materially influenced the verdict; and whether we may infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision. Id . at 298. "Only if the answer to all [of these] questions is ‘yes' may we grant relief." Ibid .
In Scesny , supra at 206 n.39, the court did not specifically discuss the sentence, "The defendant must show some evidence which, if believed, tends to directly connect a third party to the crime." The defendant here challenges not only the "directly connect" language, discussed infra , but also the phrase, "The defendant ... must show some evidence," which he contends improperly prevented the jury from considering the principal third-party culprit evidence at issue here—the description of the skinny Hispanic male elicited on cross-examination of the victim, who was a prosecution witness. If, despite Scesny , this were error, we would discern no substantial risk of a miscarriage of justice, given the strength of the case against the defendant, also discussed infra .
As to prejudice flowing from the instruction that the evidence must "tend [ ] to directly connect a third party to the crime," we see little or none, because the evidence here did just that (emphasis supplied). The victim's initial description, if believed, tended to directly implicate a skinny Hispanic male with small facial features and a "Spanish accent," perhaps one who once worked at a Subway shop. The defendant has not explained what significant third-party culprit evidence, if any, the "directly connect" language might have prevented the jury from considering.
Thus, whatever the flaws in the "direct connection doctrine" as discussed in Schwartz & Metcalf, Disfavored Treatment of Third-Party Guilt Evidence, 2016 Wis. L. Rev. 337 (2016), submitted by the defendant at oral argument, we do not find them relevant here.
As to whether any error materially influenced the verdict, we think not, given the strength of the case against the defendant. There was undisputed evidence that the defendant voluntarily contacted the police, before he became a suspect, and told them that his former roommate had admitted to committing the robbery; the roommate's purported description of the robbery to the defendant included details that only the robber would have known. Once the police obtained evidence suggesting that the roommate had been working elsewhere at the time of the robbery, they obtained a search warrant for the defendant's home and found items fitting the description of items used by the robber. They found other such items near the home. The police then arrested the defendant. The jury could have found that the defendant, while in jail, told the occupant of an adjacent cell that he (the defendant) had committed the robbery, again recounting details that only the robber would have known.
On appeal, the defendant has made clear in his reply brief and at oral argument that he challenges the instruction's effect on the jury's consideration of the evidence regarding the skinny Hispanic male, rather than the evidence regarding the former roommate.
We therefore conclude that any error in the jury instruction did not create a substantial risk of a miscarriage of justice.
This conclusion flows from our determinations as to lack of prejudice and material influence on the verdict. It does not depend on our view of whether trial counsel's failure to object to the particular portions of the instruction challenged here was a reasonable tactical decision. See Randolph , 438 Mass. at 298. We note, however, that the trial here occurred in October, 2015, three months after the decision in Scesny , 472 Mass. 185, approved an instruction like the one given here. Thus trial counsel could reasonably have viewed any objection to the instruction here as futile.
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Judgments affirmed .