Opinion
19-P-164
05-11-2020
COMMONWEALTH v. ONYX WHITE.
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
After a jury trial in the Superior Court, the defendant was convicted of possession of a firearm in violation of G. L. c. 269, § 10 (a). The jury were unable to reach a verdict as to charges of murder and masked armed robbery, and the judge ordered a mistrial as to those charges. The defendant subsequently pleaded guilty to the lesser included offenses of manslaughter in violation of G. L. c. 265, § 13, and armed robbery in violation of G. L. c. 265, § 17. In this appeal, the defendant challenges the admission of evidence of his purchase of the firearm used in the robbery, the sufficiency of the evidence that he was present and in possession of the gun at the time of the robbery, and the adequacy of the judge's plea colloquy with him. We affirm.
Background. We briefly summarize the facts as the jury could have found them, reserving certain facts for later discussion. On February 21, 2010, the sixteen year old defendant and a friend, Martin Freels, robbed a convenience store as another friend, Roy Wilson, waited nearby. In the course of the robbery, the defendant shot and killed a man present in the store, Geraldo Serrano. After fleeing the convenience store, the defendant and Freels gave the gun and a pellet gun that they had also brought with them, to Wilson, who hid them.
1. Prior bad acts. "[E]vidence of a defendant's involvement in uncharged criminal activity 'may be admissible if relevant for some other purpose' than to show the defendant's bad character or propensity to commit the charged offense" (citations omitted). Commonwealth v. Holley, 478 Mass. 508, 532 (2017). "To be relevant, evidence must have a rational tendency to prove an issue in the case . . . or render a desired inference more probable than it would have been without it" (quotations and citations omitted). Commonwealth v. Snyder, 475 Mass. 445, 456 (2016). See Mass. G. Evid. § 404(b)(2) (2020) (prior bad acts admissible for nonpropensity purposes, including "proving . . . intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident"). The determination of whether proposed evidence is relevant, and of whether its probative value outweighs its prejudicial effect, is within the broad discretion of the trial judge. Snyder, supra. Absent palpable error, we will not disturb the judge's ruling. Id., citing Commonwealth v. McGee, 467 Mass. 141, 156 (2014).
There was no error in the judge's admission of Roy Wilson's testimony that the gun used in the robbery on February 21, 2010, and to kill Geraldo Serrano, was purchased by a group comprised of the defendant, himself, and Martin Freels. That evidence went to the defendant's identity as one of the participants in that robbery, his willingness to commit the robbery while armed, and the fact that Serrano's killing was intentional. At trial, properly, the defendant conceded the relevance of the testimony. We discern no abuse of discretion in the judge's determination that the probative value of that evidence outweighed its prejudice to the defendant. See Snyder, 475 Mass. at 456.
In response to the judge's confirmation that "the evidence that the participants [in the February 21, 2010 robbery] went out and bought a gun and hid it somewhere and took it to the murder robbery, that's coming in," defense counsel replied, "Absolutely." In his opening, defense counsel referred to the Commonwealth's identification of the defendant as the person who "provided the murder weapon," and, at least initially, he did not object to Wilson's testimony that the guns used in the February 21, 2010 robbery were purchased and owned by Wilson, Freels, and the defendant, as a group.
The admission of that evidence did not conflict with the judge's exclusion of evidence of the defendant's participation in prior armed robberies. Wilson testified to his own involvement in other armed robberies before the February 21, 2010 robbery at issue in the defendant's trial, and that he, Freels, and the defendant bought the gun used in the February 21, 2010 robbery as a replacement for a shotgun that "one of [his] cohorts" left behind in the course of one of those earlier robberies. He did not, however, testify that the defendant was involved in the earlier robberies., The judge did not abuse his discretion in allowing Wilson to testify that the defendant was one of the purchasers of the gun used in the shooting.
The defendant's argument that evidence of the defendant's involvement in earlier robberies was inadmissible based on the lack of a "signature" pattern linking them to the robbery on February 21, 2010, is misplaced. The Commonwealth did not challenge the judge's in limine exclusion of that evidence.
Wilson identified neither the other people involved with him in the earlier robberies, nor the person who left the shotgun behind. Contrary to the representation in the defendant's brief, Wilson did not testify that the shotgun was something that "[he] and Onyx purchased for robberies in one of the convenience stores."
The prosecutor asked Wilson for confirmation that he knew that Freels and the defendant were going to rob the convenience store "[b]ecause you had done robberies in the past." While the defendant suggests that the question should be read to mean, "because you and the defendant had done robberies in the past," that was not what the prosecutor asked. Even if the jury drew the impermissible inference that the defendant had participated in the prior robberies about which Wilson testified, we conclude that the fleeting references would not have created a substantial risk of a miscarriage of justice here.
2. Sufficiency of the evidence of possession. To convict the defendant of unlawful possession of a firearm, the Commonwealth was required to prove, as relevant to this case, that the defendant "knowingly ha[d] in his possession[,] . . . a firearm, loaded or unloaded, . . . without either . . . being present in or on his residence or place of business . . . or having in effect a license to carry firearms . . . ." Commonwealth v. Brown, 479 Mass. 600, 604 (2018), quoting G. L. c. 269, § 10 (a). The defendant argues that the evidence at trial was insufficient to prove that he possessed a firearm, and so was insufficient to support his conviction.
The defendant's argument hinges on his assumption that Wilson's testimony about the defendant's having purchased the gun used in the robbery was inadmissible. Although we conclude that that testimony was admissible, the defendant's argument fails to recognize that when determining sufficiency, we consider all of the evidence before the jury, "without regard to the propriety of [its] admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
In reviewing the sufficiency of the evidence, we look to see whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). A conviction may rest on circumstantial evidence and the reasonable inferences drawn from the evidence. See Brown v. Commonwealth, 407 Mass. 84, 85 (1990). The inferences drawn must be "reasonable and possible and need not be necessary or inescapable[.]" Commonwealth v. Lao, 443 Mass. 770, 779 (2005), quoting Commonwealth v. Longo, 402 Mass. 482, 487 (1988).
Summarized in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 677, the evidence was sufficient to establish the defendant's actual possession of the firearm during the February 21, 2010 robbery. Freels testified that the defendant had the gun during the robbery, including at the time that he heard two shots fired, and Wilson testified that the defendant told him that the defendant had shot Serrano. The credibility of these witnesses was for the jury to decide. See Commonwealth v. Cannon, 449 Mass. 462, 469 n.17 (2007) ("It is for the jury to make a determination of credibility").
The defendant does not dispute that the weapon introduced in evidence at trial was a firearm, nor that he was a juvenile at the time of the robbery. See Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 70 n.10 (1997) (possession of firearm by minor presumptively illegal).
Additionally, the descriptions of "Person No. 1" -- the first person into the convenience store and the one who held a gun in his hand -- provided by witnesses present during the robbery included accounts of that person's height (tall), build (skinny and thin), and clothing that were consistent with the defendant's appearance at the time. The defendant admitted to handling the gun while wearing gloves, and his admission was corroborated by the presence of his thumbprint on a latex glove discovered in his bedroom. That the witnesses' descriptions of the robbers varied in some of their details does not alter our conclusion that the evidence presented to the jury was sufficient to establish that the defendant possessed the firearm used in the robbery. See Commonwealth v. Brown, 477 Mass. 805, 812 (2017) (applying Latimore standard, reviewing court does not "weigh supporting evidence against conflicting evidence").
3. Plea colloquy. Following the mistrial on the charges of murder in the first degree and armed robbery while masked, the defendant pleaded guilty to the lesser included offenses of manslaughter and armed robbery. See G. L. c. 265, §§ 13, 17. After a colloquy with the defendant, the judge adopted the parties' agreed sentencing recommendation, including, on the armed robbery conviction, a five-year term of probation, with conditions, on and after the sentence for manslaughter. The defendant argues for the first time on appeal that the judge failed to advise him of the maximum and minimum penalties to which he would be exposed if he violated the terms of his probation, see Mass. R. Crim. P. 12, as appearing in 470 Mass. 1501 (2015), and that as a result, his guilty plea to the armed robbery charge must be vacated on the grounds that his plea was not knowing and voluntary. If the defendant were found in violation of his probation on the armed robbery charge, he would be exposed to a minimum mandatory sentence of five years' imprisonment and a maximum penalty of life imprisonment (in the defendant's case, life with the possibility of parole). See G. L. c. 265, § 17; Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 671 (2013) (art. 26 of Massachusetts Declaration of Rights prohibits juvenile sentences of life without possibility of parole).
At the sentencing hearing, the prosecutor told the judge that "the Commonwealth would go forward on so much of the indictment as charges armed robbery." As the prosecutor's recitation of the facts during the change of plea hearing included the fact that the defendant was "armed with a firearm at the time [of the robbery]," we understand that the armed robbery to which the defendant pleaded guilty here carried a minimum mandatory penalty of five years' imprisonment. See G. L. c. 265, § 17 (imposing minimum mandatory sentence for "any offense described herein while armed with a firearm").
The record demonstrates that the defendant was advised that the mandatory maximum sentence should he violate probation was "up to life imprisonment." The Commonwealth concedes that in the plea colloquy the plea judge never stated or adopted a statement that if the defendant violated his probation, the defendant could be subject to the mandatory minimum sentence of five years in State prison.
The defendant's failure to raise this argument in the trial court is fatal to this facet of his appeal. Even assuming, for the sake of argument, that the plea judge failed to advise the defendant of the mandatory sentencing parameters to which he could be subject if he violated the terms of his probation on the armed robbery conviction, see Mass. R. Crim. P. 12 (c) (3), that omission alone would not automatically entitle the defendant to withdraw his guilty plea. See Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 580 (2001), quoting Commonwealth v. Johnson, 11 Mass. App. Ct. 835, 841 (1981) ("'While compliance with the procedures set out in rule 12[c] is mandatory, adherence to or departure from them is but one factor to be considered in resolving' whether a plea was knowingly and voluntarily made"). The defendant's entitlement to relief from his plea turns on his showing that the plea was made without actual knowledge of its consequences. See Commonwealth v. Najjar, 96 Mass. App. Ct. 569, 576 (2019). That determination requires factual findings that an appellate court is not in a position to make. The defendant's avenue for relief from an unknowing or involuntary plea is through a motion to withdraw the plea brought in the trial court. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See also Commonwealth v. Furr, 454 Mass. 101, 106 (2009).
Judgments affirmed.
By the Court (Sullivan, Henry & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 11, 2020.