Opinion
No. 11–P–2157.
2013-09-19
COMMONWEALTH v. Michael WILLIAMS.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth charged the defendant, Michael Williams, with seven crimes. A District Court judge submitted three to the jury: two counts of malicious destruction of property over the value of $250, in violation of G.L. c. 266, § 127, and one count of criminal harassment, in violation of G.L. c. 265, § 43A( a ). The jury found the defendant guilty of one count of the lesser included offense of malicious destruction of property under the value of $250. The judge sentenced him to twelve months of probation and ordered restitution in the amount of $1,500. We uphold the conviction but vacate and remand the order of restitution.
Background. The jury received the following evidence. The defendant and the victim, Michelle Colangelo, lived together as boyfriend and girlfriend in Gardner, Massachusetts, for about two years. Around Thanksgiving, 2009, their relationship deteriorated and Colangelo moved to an apartment a few blocks away. In the months prior to the breakup, the defendant threatened Colangelo that he would slash her tires if she ever left him. After Colangelo moved out, the tires of her car were slashed or flattened on December 16, December 24, December 28, and December 30, 2009, and January 2, 2010. Video surveillance captured the December 24 and January 2 slashings, and Colangelo identified the defendant as the perpetrator. On the evening of January 2, Colangelo was watching the surveillance video on her television. She saw a man, whom she recognized as the defendant, approach her car and slash the driver's side tires. She ran outside and yelled, “Michael Williams, I see you; you won't get away with this.” At this point, her friends the Jodoins drove up the road and identified the defendant from a few feet away. Roger Jodoin yelled, “I've caught you red-handed, Mike.” The defendant then ran away down the road.
Two Gardner police officers responded to the scene. They tracked footprints in the snow to the rear door of the home of the defendant's brother. The officers forcibly entered the home, and arrested the defendant.
They also seized various articles of clothing. This evidence was suppressed.
Prior to trial, a judge (other than the trial judge) granted the defendant's motion to suppress the evidence seized by the police in the home when they arrested the defendant.
At trial, and over objection, two officers testified about the defendant's location and his flushed and sweaty appearance in the home at the time of his arrest. Another officer testified about the defendant's appearance at the station soon after arrest. The Commonwealth also introduced two booking photos of the defendant.
See note 1, supra.
Discussion. 1. Admission of evidence of the defendant's appearance in the home and at the police station. A warrantless entry into a home is justified only if the Commonwealth proves “both probable cause to enter the dwelling and the existence of exigent circumstances.” Commonwealth v. Tyree, 455 Mass. 676, 684 (2010). Exigent circumstances require “a showing that it was impracticable for the police to obtain a warrant, and the standards as to exigency are strict.” Ibid., quoting from Commonwealth v. Forde, 367 Mass. 798, 800 (1975). We agree with the motion judge that exigent circumstances did not exist and that the entry was unlawful.
Here, although a few factors supporting an exigency did exist,
additional factors were absent. The Commonwealth has offered no evidence that the police could not have obtained a warrant before entering the home. See Commonwealth v. Huffman, 385 Mass. 122, 125 (1982) (no exigent circumstances where “the Commonwealth did not offer any evidence as to the time it would take to get a warrant, or indicate that it would be impractical to get one”); Commonwealth v. Tyree, 455 Mass. at 690. Similarly, there was little or no risk of destruction of evidence, of the suspect's escape, or of harm to the police or others. The officers had secured the home prior to entering, received no answer when they knocked on the front and back doors, and heard or observed no alarming signs inside the home. See Commonwealth v. Tyree, supra at 685–690; Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 723–724 (1995). In sum, the circumstances here are not analogous to those in which courts have found exigency. See Commonwealth v. DiGeronimo, supra at 725 n. 13, and cases cited.
There was some indication that the defendant was armed. The police likely had probable cause to believe that the suspect had committed a felony and strong reason to believe that he was in the home. See Commonwealth v. Forde, 367 Mass. at 807. These factors alone, however, are not sufficient to support a finding of exigent circumstances. Commonwealth v. Tyree, 455 Mass. at 684–685.
Accordingly, we agree with the defendant that all evidence discovered and seized as a result of the entry into the home should have been suppressed as products of the unlawful entry. See Wong Sun v. United States, 371 U.S. 471, 487–488 (1963). This evidence included the observations of the defendant in the home, as well as the observations at the station and the booking photos.
See Commonwealth v. Tyree, 455 Mass. at 691–692 & n. 32 (testimony concerning the defendant's location and appearance at the time of arrest should have been suppressed); Commonwealth v. DiGeronimo, 38 Mass.App.Ct. at 730 (officer's observations of defendant's intoxicated state in the home and breathalyzer test results should have been suppressed).
The Supreme Judicial Court has held that, where the police have probable cause to arrest, statements made by a defendant outside the home after an unlawful warrantless entry into a home do not fall under the exclusionary rule. Commonwealth v. Marquez, 434 Mass. 370, 377–378 (2001). However, the court refused to extend this holding to physical evidence seized from a suspect at the station. Commonwealth v. Tyree, 455 Mass. at 698–700. Similarly, we do not believe that the holding in Marquez can be extended to evidence of a suspect's appearance outside the home shortly after an unlawful entry (here, the observations at the station and booking photos). Like physical evidence, a suspect's particular appearance “depend[s] directly on the time and place of the arrest.” Commonwealth v. Tyree, 455 Mass. at 699–700. Allowing the admission of such evidence would significantly undermine the warrant requirement's deterrent purpose. See ibid.
We now turn to the question of relief from the effect of evidence admitted in violation of a constitutional standard. Because defense counsel objected to the admission of testimony concerning the defendant's appearance inside the home,
we review to determine “whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the [jury] and did not contribute to the [jury's verdict].” Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010), quoting from Commonwealth v. Tyree, supra at 701. Under this standard, the Commonwealth must establish that the separate and properly admitted evidence of guilt was so “overwhelming” as to “nullify any effect” of the improperly admitted evidence upon the jury. Commonwealth v. Vasquez, supra at 362, quoting from Commonwealth v. Tyree, supra at 704 n. 44.
We are not persuaded by the Commonwealth's argument that the defendant consented to the admission of testimony about his appearance in the home. Review of the record on the whole shows that defense counsel clearly objected to this evidence, both prior to trial and at trial. To hold otherwise “would exalt form over substance.” Commonwealth v. Charles, 47 Mass.App.Ct. 191, 193 (1999).
We conclude that the untainted evidence of guilt was “overwhelming.” Colangelo testified that, when her relationship with the defendant deteriorated during October and November 2009, he specifically threatened to slash her tires if she ever left him. Further, after she moved out of the defendant's house, she received a series of unwanted calls and texts from the defendant. From December 16, 2009, to January 2, 2010, a series of consistent tire slashings occurred. Two of these incidents, December 24 and January 2, were captured on video. Colangelo testified that she could identify the defendant in each video, mainly from the gray “Life is Good” hooded sweatshirt which he typically wore. During the January 2 incident, Colangelo yelled at him by name. The Jodoins also positively identified the defendant from a short distance, and Roger Jodoin yelled, “I've caught you red-handed, Mike.” Finally, two officers testified that they followed footprints (one from the scene of the offense and the other from the nearby point of a witness's sighting of the suspect) to the rear of the defendant's brother's house.
Consequently, powerful circumstantial and percipient evidence supported a finding of guilt for at least the January 2 incident. See Commonwealth v. Graves, 363 Mass. 863, 869–872 (1973) (error in admitting defendant's pretrial statement harmless beyond a reasonable doubt where there was other overwhelming evidence that the defendant had not abandoned the criminal enterprise or submitted to arrest, consisting of testimony from four other eyewitnesses). Contrast Commonwealth v. Vasquez, 456 Mass. at 366–367 (erroneous admission of drug certificate not harmless beyond a reasonable doubt where it was the only direct evidence that the white powder was cocaine).
2. Refusal to permit cross-examination of Officer Wolski. The defendant claims that the judge violated his right of confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights by refusing to permit cross-examination of Officer Wolski about his prior hostility toward the defendant. Because the defendant preserved this issue by timely objection, we apply the standard of review of prejudicial error and ask whether the error, if any, had little or no effect upon the jury's verdict. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Commonwealth v. Graham, 431 Mass. 282, 288 (2000).
Initially, we find no error. Although a trial judge has no discretion to “bar all inquiry” into a witness's bias or prejudice in a criminal case, “[a] judge does have discretion to limit cross-examination concerning possible bias when further questioning would be redundant.” Commonwealth v. Ahart, 464 Mass. 437, 441 (2013), quoting from Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). Here, the trial judge acted within his discretion. Defense counsel had already questioned Wolski extensively on the issue of bias,
so further questioning would have been redundant and potentially confusing to the jury. See Commonwealth v. Ahart, supra (no error in limiting cross-examination where the questions “were cumulative of earlier, numerous questions put to [the witness] on the issue of bias”).
The defendant cross-examined Wolski about (i) facts which he omitted from his initial report, (ii) inconsistencies in his testimony concerning damage to the basement door of the brother's house, and (iii) whether Wolski had gotten mad at the defendant's brother when the brother had indicated his refusal to pursue charges against the defendant.
Even if there were error, the defendant did not suffer any prejudice. Any prior hostility between the defendant and Officer Wolski was of little relevance to the case. Further, in light of the extensive attacks already launched on Wolski's credibility, we cannot say that the jury's verdict would have been affected if they had heard evidence of Wolski's animus toward the defendant. See Commonwealth v. Flebotte, supra.
3. Judge's comments to the jury about a potential celebrity and references to Alvin Notice during trial. First, the defendant's claim that the judge's remarks to the jury pool about possibly meeting someone “famous” violated his right to be present at all critical stages of the proceeding is without merit. The reference apparently alluded to Alvin Notice, a victim's rights advocate whose organization had furnished the home surveillance camera to Colangelo. The comment was not prejudicial.
See Commonwealth v. Owens, 414 Mass. 595, 602–603 (1993). There is no indication that the judge's brief comments had any effect on the jury. In fact, the jury ultimately acquitted the defendant of all but one misdemeanor offense despite strong evidence of guilt. Likewise, there is no indication that the defendant suffered any prejudice by the victim's reference to Notice and his foundation during trial.
The judge also informed the parties of his remark to the jury pool before empanelment and the defendant did not object. As a result, the issue is waived. See Commonwealth v. Owens, 414 Mass. 595, 604–605 (1993).
The defendant claims that the judge committed structural error by failing to fully uphold the parties' pretrial evidentiary stipulation to exclude any reference to Notice during Colangelo's testimony. Structural error has been recognized only where a judge denies a defendant the ability to ensure an impartial jury. See, e.g., Commonwealth v. Soares, 377 Mass. 461, 492 (1979); Commonwealth v. Wood, 389 Mass. 552, 560–564 (1983). Here, there was no denial of that ability by the judge. The defendant made a tactical decision not to question the jurors about Notice after the judge accepted the parties' agreement. In fact, the defendant participated in the empanelment process and was satisfied with the jurors seated.
4. Restitution order. While a judge has the power to order restitution, “[i]f the record reveals an arbitrary method of determining the amount of restitution, the order cannot stand.” Commonwealth v. Nawn, 394 Mass. 1, 7 (1985). Further, the restitution must be “limited to economic losses caused by the defendant's conduct and documented by the victim” and “bear a causal connection to the defendant's crime.” Commonwealth v. McIntyre, 436 Mass. 829, 834 (2002). Here, as the Commonwealth concedes, the $1,500 restitution order was not “limited to economic losses caused by the defendant's conduct and documented by the victim.”
Ibid. Accordingly, we vacate the restitution order and remand for a hearing to determine the proper amount of restitution, limited to the value of the tires slashed in the incident for which the defendant was convicted.
The defendant was convicted of only one count of malicious destruction of property under $250. Nonetheless, the judge ordered restitution in the amount of $1,500, seemingly upon the imputation to the defendant of responsibility for all the slashings and the victim's claims of aggregate expenditures for replacement of the damaged tires.
The verdict is to stand, the judgment is vacated, and the matter is remanded to the trial judge for a hearing to determine the proper amount of restitution and for corresponding resentencing consistent with this memorandum and order.