Opinion
16-P-329
03-28-2017
COMMONWEALTH v. Samuel MIRANDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The eighty-three year old victim was hooded and bound with duct tape by two intruders who then robbed her and her home. Three pieces of duct tape were recovered. The one that had been used to bind the victim's arms and hands was several feet long and, on its nonadhesive side were two prints from the defendant's palm and three prints from the defendant's fingers. The defendant does not contest that the fingerprints are his. Nor does he challenge that he placed them on the tape used to bind the victim. Instead, in this direct appeal from his convictions, he argues that the evidence was insufficient to permit the jury to infer, beyond a reasonable doubt, that he handled the tape during the commission of the crime rather than at some earlier innocuous point in time. Where "fingerprint evidence is the only identification evidence, the Commonwealth [has] to present evidence that reasonably excludes the hypothesis that the fingerprint was left at some time other than when the crime was committed." Common w ealth v. French , 476 Mass. 1023, 1026, 68 N.E.3d 1191 (2017). Commonwealth v. Fazzino, 27 Mass.App.Ct. 485, 487, 539 N.E.2d 1060 (1989). The Commonwealth met that burden here.
The defendant was convicted of kidnapping, G. L. c. 265, § 26, assault and battery upon an elderly or disabled person, G. L. c. 265, § 13K (a 1/2), burglary, G. L. c. 266, § 14, larceny from a person sixty-five years or older, G. L. c. 266, § 25(a ), and larceny over $250, G. L. c. 266, § 30(5).
The evidence, viewed through the lens of Commonwealth v. Latimore , 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), together with the reasonable inferences to be drawn from it, permitted the jury to find the following. The perpetrators entered the victim's home late at night by removing an air conditioner. The victim had fallen asleep in her chair while watching television. She did not awake until she sensed two people near her and a hood being placed over her head. One perpetrator was down near the victim's feet in order to bind them; the other remained upright and pressed his thumbs into her eyes. When the latter bound the victim's hands, the former gouged the victim's eyes. From these circumstances, it is fair to infer that the perpetrators operated carefully and softly when entering the house, that they came prepared to subdue the victim in a coordinated manner, that their hands remained free to do what was needed, and that they brought with them what was necessary to carry out their plan—be it a hood or duct tape. Together with (1) the length of the tape on which the defendant's prints were found, (2) the location of the prints on the tape, and (3) common knowledge of the circumference of a roll of duct tape, the evidence permitted the jury to find that the prints were placed on the tape when it was unrolled during the commission of the crime. See Commonwealth v. Baptista , 32 Mass.App.Ct. 910, 911-912, 585 N.E.2d 335 (1992).
This inference is consistent with, even though not bolstered by, the fact that no roll of duct tape was located at the victim's home.
--------
The defendant's case did not cause the Commonwealth's evidence to deteriorate. The defendant testified that he had a roll of duct tape at his apartment not far away, which he used many times to seal a broken bathroom window. According to the defendant, he would replace the tape regularly and then throw the used tape into a communal dumpster used by the residents of the apartment building in which he lived. The defendant invited the jury to infer that someone (perhaps a downstairs neighbor named Betsy), removed several used pieces of duct tape from the dumpster, transported them by some manner to the victim's home on the night of the crime, and then used them to bind the victim, presumably after the pieces had been sufficiently disentangled and straightened to be used for that purpose. The inherent implausibility of these inferences is readily apparent for several reasons, not least of which is the stickiness of duct tape (of which there was ample evidence).
Judgments affirmed .