Opinion
14-P-694
06-12-2015
COMMONWEALTH v. MARK A. STACY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal the defendant, Mark A. Stacy, appeals from his convictions of breaking and entering in the daytime and larceny, see G. L. c. 266, §§ 18 & 20, and from the denial of his motion for new trial. He contends that (1) there was insufficient evidence of identification; (2) the trial judge impermissibly limited the scope of cross-examination; (3) a police officer impermissibly vouched for the Commonwealth's case; (4) his motion for new trial based on ineffective assistance of counsel was erroneously denied; (5) the Commonwealth exceeded the permissible limits of redirect examination; (6) the judge's instruction on credibility was inadequate; and (7) the prosecutor impermissibly referred to facts not in evidence in his closing argument. For the reasons set forth below, we affirm the convictions and the denial of the motion for new trial.
Discussion. 1. Sufficiency. The defendant contends that the Commonwealth did not produce sufficient evidence to prove beyond a reasonable doubt that he was the person who committed the break-in and larceny. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Forte, 469 Mass. 469, 481 (2014), the jury permissibly could have found that the defendant was the thief. The homeowner, Carol Santiago, called the police to report that her cash, jewelry, and prescription medications were stolen from her home. Santiago knew the defendant, who had been to her home. When he came to her house, he arrived in a white van. The day before the break-in, Santiago told the defendant that she would be out of her house from about 9:30 A.M. to 2:30 P.M. the following day. In the days following the break-in, Santiago received a telephone call and recognized the caller's voice as the defendant's. The defendant said, "Hi, this is Mark." He also said, "I'm sorry I did that. . . . I don't know why I did it." The defendant told Santiago that he gave some of her jewelry to "Mary" and that he spent the money on heat. The defendant had previously told Santiago that he dated a woman named Mary Briggs. The police were called to Briggs's home; Briggs retrieved a bag containing Santiago's jewelry and medication from a white van parked outside her residence, and gave it to the police. The evidence of identity was sufficient. See Commonwealth v. Murphy, 86 Mass. App. Ct. 118, 127 (2014).
In general, we assess sufficiency without reference to whether the evidence was properly admitted. See Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010). For the reasons discussed infra, the evidence in this case was properly admitted.
The defendant contends that the Commonwealth was required to show that the defendant owned or had access to the white van from which Briggs retrieved the stolen property. Viewed in the light most favorable to the Commonwealth, the defendant's telephone call to Santiago was tantamount to a confession, and it was unnecessary for the Commonwealth to prove the defendant's connection to the van. Even so, a jury could have found that the van in which the stolen property was found belonged to or was used by the defendant, based on the evidence that the defendant was known to drive a white work van, that Briggs was the defendant's girlfriend, and that the van was parked outside her house. See Commonwealth v. Fitzpatrick, 463 Mass. 581, 591 (2012), quoting from Commonwealth v. Lao, 443 Mass. 770, 779 (2005) ("If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies"). See also Murphy, supra.
Whether the defendant owned or had access to the van where the stolen property was being kept is not an element of larceny. The defendant's connection to the van parked outside Briggs's home was offered by the Commonwealth as further circumstantial evidence that the defendant committed the break-in and larceny.
2. Scope of cross-examination. The defendant contends that the trial judge improperly limited the defendant's cross-examination of Santiago regarding her prescription medications. While the defendant has a right to cross-examine prosecution witnesses, the trial judge has broad discretion to limit the scope of cross-examination. See Mass. G. Evid. § 611(a) & (b)(1) (2015 ed.). The defendant has not shown, however, that cross-examination was restricted. Santiago admitted that she took various prescription medications. When counsel inquired about her medical conditions, the Commonwealth lodged an objection. After the sidebar, defense counsel elicited testimony from Santiago regarding her back injury, her pain medications, the frequency with which she took them, and the side effects of the medications. There is no showing in this record that the judge barred inquiry into Santiago's medicinal regimen and its effect on her mental faculties. See Commonwealth v. Garcia, 470 Mass. 24, 35-36 (2014).
The defendant's speculation concerning what then transpired at sidebar is unavailing, as the defendant failed to reconstruct the record of the sidebar. "In a case in which an electronic recording contains gaps or inaudible portions, the appellant may determine if the omissions are material, in which event the appellant has the burden to settle the record as provided in Mass.R.A.P. 8(c) and (e)." Commonwealth v. Woody, 429 Mass. 95, 98 (1999). See Mass.R.A.P. 8(c) & (e), as amended, 378 Mass. 932 (1979).
3. Vouching. Santiago testified that at the time of the break-in, she relayed the names of two potential suspects to the police. The defendant contends that the trial judge erred in allowing, over objection, Officer Morse's testimony that the investigation warranted no follow-up regarding these individuals.
The defendant mounted a Bowden defense at trial. See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980). Viewing the redirect examination of Officer Morse in context, Officer Morse was not expressing a personal belief in the credibility of the Commonwealth's case. Rather, Officer Morse was answering a question "in the context of rebutting the claims of an inadequate investigation." Commonwealth v. Cassidy, 470 Mass. 201, 221 (2014).
4. Unpreserved arguments. Where the arguments are unpreserved, we review to determine whether the errors, if any, created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
a. Scope of redirect examination. The defendant contends that the Commonwealth exceeded the scope of reexamination when the prosecutor asked Santiago if any of the suspects she identified to the police knew the defendant. "The scope of redirect examination is within the sound discretion of the trial judge." Commonwealth v. Arriaga, 438 Mass. 556, 577 (2003). Defense counsel cross-examined Santiago regarding her former tenant and the individuals Santiago originally suspected of breaking into her home. As a result, we see no error in allowing the Commonwealth to rebut this testimony or any adverse inferences drawn therefrom on redirect examination of Santiago. Commonwealth v. Marrero, 427 Mass. 65, 69 (1998).
b. Credibility instruction. The defendant contends that the credibility instruction given by the trial judge was inadequate. While the trial judge's instruction deviated from the model jury instruction on credibility, he was allowed, in his discretion, "to choose a form of expression best adapted to make the law intelligible to the jurors." Commonwealth v. Silva, 388 Mass. 495, 507 (1983). The instruction informed the jury that they were to make credibility determinations based on the testimony and conduct of the witnesses. The other instructions also addressed bias and prejudice. These instructions, considered in their entirety, "adequately conveyed to the jury how they were to evaluate witness credibility." Commonwealth v. McGee, 467 Mass. 141, 155 (2014).
See Instruction 2.260 of the Criminal Model Jury Instructions for Use in the District Court (2009).
c. Prosecutor's closing argument. The defendant contends that the prosecutor impermissibly argued facts not in evidence during his closing argument when he identified the "Mary" referenced in the defendant's telephone call to Santiago as Mary Briggs. There was testimony at trial that the defendant had a girlfriend named Mary Briggs, that the defendant told Santiago that he gave some of Santiago's jewelry to "Mary," and that Briggs turned over a bag containing Santiago's jewelry and prescription medications to the police. The prosecutor "analyz[ed] the evidence and suggest[ed] what reasonable inferences the jury should draw from that evidence." Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015) (quotation omitted). We discern no error.
5. Motion for new trial. The defendant asserts error in the judge's ruling that trial counsel was not ineffective for failing to move to suppress the contents of the bag given to Officer Gregory by Briggs, and failing to call witnesses to impeach Santiago.
We review a decision by the trial judge on a motion for new trial for abuse of discretion. Commonwealth v. Clemente, 452 Mass. 295, 304 (2008). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Martin, 467 Mass. 291, 316 (2014). We review a claim of ineffective assistance under the familiar Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
a. Motion to suppress. Officer Gregory responded to a call from Briggs's home. When he got there, Briggs went out to a white van parked in front of her house, took a plastic bag from the van, and handed the bag to the officer. The bag contained jewelry and approximately fourteen prescription bottles with Santiago's name on the labels. The defendant contends that the officer's search of the plastic bag was an unconstitutional warrantless search and that trial counsel was ineffective for failing to file a motion to suppress the contents of the plastic bag.
To establish ineffective assistance for failure to file a motion to suppress, the defendant must demonstrate that such a motion likely would have succeeded. Commonwealth v. Buckman, 461 Mass. 24, 40 (2011). The defendant's showing falls far short. The defendant's affidavit states nothing regarding the bag or his possessory interest in the bag. See Commonwealth v. Williams, 453 Mass. 203, 207-208 (2009) (defendant required to demonstrate possessory interest in property seized or presence when search occurred to establish standing to contest search). Moreover, "the facts available" to Officer Gregory "at the moment" Briggs handed over the plastic bag warranted the "belief that [Briggs] had authority" to allow the search of the bag. Commonwealth v. Dejarnette, 75 Mass. App. Ct. 88, 95-96 (2009). We therefore discern no abuse of discretion in the denial of the defendant's motion for new trial on this basis. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
b. Failure to call witnesses. "Whether to call a witness is a strategic decision." Commonwealth v. Morales, 453 Mass. 40, 45-46 (2009). "[I]neffective assistance of counsel is not established merely by showing that the defendant's counsel did not call additional witnesses." Commonwealth v. Ortega, 441 Mass. 170, 178 (2004). Rather, "the defendant must show that the purported testimony would have been relevant or helpful." Ibid. The defendant contends that the testimony of his former landlords would have impeached Santiago's testimony. It is unclear how the testimony would have impeached Santiago, who testified that the defendant said he spent the cash on heat for either his home or his mother's home. Further, the defendant did not submit an affidavit from his former landlords. "[T]he defendant has failed to show that the testimony would have contributed materially to the defense or that counsel's failure to call them was manifestly unreasonable." Commonwealth v. Britto, 433 Mass. 596, 603 (2001).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Vuono, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: June 12, 2015.