Opinion
16-P-549
04-07-2017
COMMONWEALTH v. Asad REZVI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted of breaking and entering in the nighttime with intent to commit a felony, G. L. c. 266, § 16, and larceny in a building, G. L. c. 266, § 20. On appeal, the defendant claims that the judge abused his discretion in admitting evidence of the defendant's prior bad acts, and erred in his instructions to the jury on the charge of breaking and entering in the nighttime with intent to commit a felony. We affirm.
Background. We summarize the relevant facts and procedural history regarding the prior bad act evidence. Shortly after midnight on August 22, 2010, Salem police officers responding to an ongoing audible burglar alarm at the offices of Vico Software observed the defendant backing out of Vico Software's office in possession of a laptop computer. When the defendant observed the officers, he quickly reentered the office. The officers followed. Further investigation revealed pry marks on the office door, open drawers, and a Vico Software laptop computer missing from its case. After learning from Vico Software representatives that the defendant was not known to them and not authorized to be in their office, the officers placed the defendant under arrest.
The defendant testified at trial, claiming that he was in the area of Vico Software's second floor office to use the bathroom when he heard the "blaring" alarm and saw two men walking away from the area. Noticing that the office door was ajar, he entered the office out of curiosity and attempted to deactivate the alarm by banging the security code keypad. The defendant testified that he found the laptop computer sitting on a chair in the common area outside the Vico Software office. When asked by the officers what he intended to do with the laptop computer, the defendant responded that, unless the officers intended to take possession of the computer, he would take it and return it to Vico Software the following Monday.
In light of the defendant's testimony, the Commonwealth sought permission to cross-examine the defendant regarding his three prior convictions for theft of computer equipment from Massachusetts General Hospital (MGH), approximately two years earlier. The judge held a hearing outside the presence of the jury regarding the probative value and prejudicial impact of the prior bad act evidence. After hearing argument, the judge concluded, "The probative value [of] the evidence is palpable here. He's basically said that it's all a big mistake and that he didn't have the intent. ... I agree that there's undue prejudice, but I believe the probative value is not substantially outweighed by the danger of undue prejudice." Before the prior bad act evidence came before the jury, the judge held a separate hearing, including a voir dire examination of the defendant, to determine what specific evidence would be admitted.
In the ensuing cross-examination, the defendant admitted that he had been charged and convicted on three counts of larceny of computer equipment from MGH. However, during redirect examination the defendant explained that he had a business relationship with MGH and was merely assisting them with the resale of obsolete computer equipment. Thereafter, the judge permitted the Commonwealth to present extrinsic rebuttal evidence related to the defendant's theft of computer equipment from MGH. Again, the judge conducted a voir dire examination of the Commonwealth's rebuttal witnesses to determine what extrinsic evidence he would permit to come before the jury. Although there was testimony during the voir dire regarding a series of thefts of computer equipment at MGH in early 2008 and that the defendant's image was captured on video surveillance participating in multiple thefts, the judge limited the evidence to the defendant's arrest on April 4, 2008, in possession of MGH computer equipment as he left MGH property, and the seizure of other MGH computer equipment from his home the following day. The judge reasoned "that there [are] at least three, really more perhaps, but at least three non-propensity purposes for the evidence as it relates to intent, state of mind on August 21st and August 22nd [,] [a]nd as it relates to the defendant's testimony of his interactions with the police that day."
Ultimately, a police officer from MGH testified before the jury that on April 4, 2008, he arrested the defendant as he attempted to leave MGH in possession of two computer monitors, two keyboards, and a "CPU," all of which belonged to MGH. The officer also explained that during the execution of a search warrant at the defendant's residence the following day, additional MGH computer equipment was recovered.
Discussion. 1. Prior bad acts. Evidence of prior bad acts may not be introduced for purposes of showing the accused's propensity to commit the crimes charged; however, such evidence may be admissible to demonstrate "a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)(2) (2016). The determination of whether the evidence is relevant and more probative than prejudicial is "committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent palpable error." Commonwealth v. McCowen, 458 Mass. 461, 478 (2010) (quotation omitted). We examine the judge's "decision in the context of the trial." Ibid.
In this case, to meet its burden of proof, the Commonwealth was obligated to prove that the defendant intended to permanently deprive Vico Software of the laptop computer. Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015). The Commonwealth did not seek to establish the defendant's intent by offering his prior bad acts as part of its case-in-chief. Rather, the prior theft of computer equipment from MGH was offered only after the defendant placed his intent squarely at issue by testifying that he innocently happened upon the crime scene and entered the Vico Software offices out of curiosity. In these circumstances, the prior bad act evidence was probative of the defendant's intent to steal the laptop computer, an essential element in dispute. See Commonwealth v. Campbell, 371 Mass. 40, 43 (1976) (evidence of past burglaries admissible to rebut claimed innocent intent to enter premises). The evidence that the defendant had, two years earlier, taken computer equipment from an operating business on a weekend, and then falsely claimed that he was authorized to be there, was sufficiently similar in time, place, and form to the charges before the jury to render it relevant and probative. See Commonwealth v. Walker, 442 Mass. 185, 202 (2004).
At a pretrial hearing on motions in limine the prosecutor advised the judge and defense counsel that he did not intend to offer the prior bad act evidence as part of the Commonwealth's case-in-chief, but reserved the right to offer the evidence in rebuttal.
Mindful of the potential prejudice to the defendant from the prior bad act evidence, the judge concluded, "I agree that there's undue prejudice, but I believe the probative value is not substantially outweighed by the danger of undue prejudice so I'll allow it with a strenuous limiting instruction." He then gave a lengthy and forceful limiting instruction at the time the evidence was admitted. The prosecutor made no mention of the prior bad act evidence in closing argument, and the judge repeated the limiting instruction in his final instructions to the jury. In these circumstances, we discern no palpable error. See Commonwealth v. Butler, 445 Mass. 568, 576 (2005) ("With relevance established, ... the judge could properly determine that any possible prejudice from the bad act evidence did not outweigh its probative value, and with the jury's consideration of the evidence confined by repeated limiting instructions, and assisted by appropriate closing argument from the prosecutor").
The judge instructed the jury,
"You heard evidence from [the defendant] concerning an incident involving Massachusetts General Hospital property or equipment and a conviction out of the Suffolk Superior Court. That evidence may be considered for a very limited purpose. First of all the defendant is not on trial for anything other than the indictments before the Court. Those indictments that were read to you of the B and E in the nighttime with intent to commit a felony and larceny by stealing from a building. He has been charged with those indictments and those indictments only. The fact that you heard testimony [of] the other incident and other conviction may not be considered by you to make it more likely that he committed the offense before you. In other words, you can't use it for propensity purpose because there was a conviction in another situation, you can't use that evidence to say well it is more likely that this event occurred. That would be an inappropriate use of the evidence. You may not use any prior bad acts alleged, including these, should you credit those acts[,] as a substitute for proof that the defendant committed the crime charge[d], nor is [it] proof that the defendant had a criminal personality or bad character. The defendant is not on trial for anything having to do with his character. Nor may you conclude, as I indicated already, that if the defendant committed another act or acts then he must also [have] committed the acts charged in the indictment. Again the defendant is on trial for the indictment before the Court and those indictments only. Well what may you consider the evidence for then? Well you may consider it for a very limited purpose as it relates to the defendant's intent, as it relates to the equipment of Vico Software, as to his state of mind as it relates to the events of August 21st and August 22nd and as it relates to his testimony concerning his interactions with the police. That is the only purpose for which you may consider the evidence. Again[,] you must compartmentalize your mind, be disciplined and consider the evidence for those purposes and those purposes only."
Said another way, we conclude that where, as here, (1) the defendant's intent to steal computer equipment from Vico Software was in dispute; (2) the proffered evidence was sufficiently similar in time, place, and form to the charged conduct to be probative of the defendant's intent; (3) the judge carefully weighed the probative value and prejudicial impact of the evidence outside the presence of the jury; (4) the judge limited the evidence that could be presented to the jury; and (5) the judge forcefully and repeatedly instructed the jury on the limited purpose for which the evidence could be considered, the judge acted within his discretion in admitting the prior bad act evidence.
The defendant claims error in the judge's use of the standard "substantially outweighed" in his balancing of the probative value and prejudicial impact of the prior bad acts. In Commonwealth v. Crayton, 470 Mass. 228, 249-250 n.27 (2014), decided seventeen months after the trial in this case, the Supreme Judicial Court clarified "that ‘other bad acts' evidence is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk." We are not persuaded by the defendant's argument that it was prejudicial error not to apply the Crayton standard here. See Commonwealth v. Christie, 89 Mass. App. Ct. 665, 667 n.2 (2016) (use of "substantially outweighed" standard before Crayton was understandable and appropriate). Further, even if the judge had the benefit of Crayton's clarification, we do not think it would have changed the result. During the judge's analysis of this issue, he repeatedly commented on the highly prejudicial nature of the prior bad act evidence. Nevertheless, he concluded that the probative value of the prior bad act evidence in this case was "palpable," in light of the defendant's testimony. On the record before us, where it is clear that the judge was well aware of the highly prejudicial nature of the prior bad act evidence, we cannot conclude that application of the Crayton standard would have affected the judge's ultimate ruling.
The judge referred to the prior bad act evidence as "unduly prejudicial," a phrase often used in connection with a judicial conclusion following a balancing of probative value and prejudicial impact under Mass. G. Evid. § 403 (2016). We interpret "unduly prejudicial," as the judge used the phrase, to mean highly prejudicial.
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2. Jury instruction. Relative to the charge of breaking and entering in the nighttime with intent to commit a felony, the jury were instructed that the Commonwealth was obligated to prove beyond a reasonable doubt that the defendant (1) broke into a building belonging to another person, (2) entered the building, (3) with the intent to commit a felony, and (4) did so in the nighttime. With respect to the third element, the judge further explained that the Commonwealth must prove that, at the time of the breaking and entering, the defendant had the intent to commit larceny from a building. For the first time on appeal, the defendant claims it was error to instruct the jury that larceny from a building could be the intended felony because it was not sufficiently independent of the breaking and entering to serve as the intended felony. We review for a substantial risk of a miscarriage of justice. Commonwealth v. Kilburn, 438 Mass. 356, 360 (2003).
Although the Commonwealth was not required to "identify the felonious conduct the defendant had in mind," Commonwealth v. Porcher, 26 Mass. App. Ct. 517, 521 (1988), here the defendant was charged in a separate indictment with larceny from a building, and the jury were instructed that larceny from a building could be a predicate felony underlying the charge of breaking and entering in the nighttime with intent to commit a felony. It is well established that larceny from a building can be the underlying felony supporting a charge of breaking and entering in the nighttime with intent to commit a felony. Commonwealth v. Ronchetti, 333 Mass. 78, 81-82 (1955). On the record before us, we are persuaded that, although part of the same course of conduct, the crime of larceny from a building did not merge with the crime of breaking and entering in the nighttime with intent to commit a felony, such that it could not be considered the intended felony. Accordingly, the defendant has failed to establish a substantial risk of a miscarriage of justice.
Judgments affirmed.