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Commonwealth v. Diaz

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 19, 2012
11-P-784 (Mass. Apr. 19, 2012)

Opinion

11-P-784

04-19-2012

COMMONWEALTH v. ANGEL L. DIAZ.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant, Angel L. Diaz, of (1) breaking and entering a vehicle in the daytime with the intent to commit a felony, G. L. c. 266, § 18; (2) larceny under $250, G. L. c. 266, § 30(1); and (3) malicious destruction of property in excess of $250, G. L. c. 266, § 127. We affirm in part and reverse in part.

On November 25, 2009, a witness called the police after witnessing a man on a bike break a car window and grab a backpack from the car before riding away. Shortly thereafter, police officers arrested the defendant in the vicinity, who matched the general description given by the witness. On the defendant, the officers found a cellular telephone belonging to the victim's father and shards of glass which appeared to come from the broken car window.

The witness was brought, in a police cruiser, to the defendant's location. The cruiser drove slowly by the defendant, who was surrounded by three to four police officers, one in uniform, the others in plain clothes, who helped him stand up as the cruiser passed. The witness recognized the defendant's clothing but was unable to identify the defendant with one hundred percent certainty.

Before trial, the defendant tendered a plea and a colloquy ensued. The judge rejected the sentencing recommendation of the parties, and the defendant opted to proceed to trial. Apparently, the matter was then moved to the trial session. At that point, counsel indicated that he had filed a motion to suppress the identification. The judge heard the parties and then denied the motion, without conducting an evidentiary hearing.

The judge also ruled that the defendant could not introduce in evidence a receipt for a window replacement, that counsel had apparently only received that morning. The defendant challenges this ruling. Even if error, which we need not decide, it was harmless given the strength of the Commonwealth's case.

On appeal, the defendant argues that the trial judge erred by (1) failing to conduct a hearing on his motion to suppress identification; (2) denying his motion for a required finding of not guilty; (3) failing sua sponte to instruct the jury on a lesser included offense; (4) excluding the receipt from evidence; and (5) proceeding on the larceny charge after the Commonwealth moved to dismiss it during the plea proceeding.

Failure to conduct hearing. The defendant claims that he was deprived of his due process rights when the judge failed to conduct a suppression hearing on the identification.

'Under the due process clause . . . an evidentiary hearing is not required whenever a defendant contends that an improper identification occurred. . . . [T]he defendant's affidavit [must establish] a triable issue of suggestiveness.' Commonwealth v. Walker, 421 Mass. 90, 94 (1995). For identification evidence to be inadmissible, it must be 'so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [him] due process of law.' Commonwealth v. Amaral, 81 Mass. App. Ct. 143, 148 (2012) (citation omitted). A defendant is not entitled to a hearing on his motion to suppress identification evidence when he fails to present circumstances of unnecessary suggestiveness. Commonwealth v. Powell, 72 Mass. App. Ct. 22, 25-26 (2008).

We start by noting that there was little to suppress as the witness could not make a definitive identification; the witness identified the clothing of the defendant. Indeed, there was no in-court identification of the defendant by the witness. Regardless, the judge acted within his discretion in ruling that the defendant's affidavit and the record did not support a claim of unnecessary suggestiveness. Even if we were to agree with the defendant, however, he would fare no better. At trial, the defendant had ample opportunity to thoroughly vet the identification and could not identify, either there or before us, any undue suggestiveness. Taken in totality, the judge's ruling was not erroneous.

We also reject the defendant's claim that the judge was biased against him. '[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. . . . [T]hey will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.' Litkey v. United States, 510 U.S. 540, 555 (1994). Here, the remarks in question, though made about the defendant, were actually made in reference to the prosecution's sentencing recommendation. During the course of the trial, the judge exhibited no bias against the defendant. Indeed, he allowed the defendant's motion for a required finding for receiving stolen property.

Denial of motion for finding of not guilty. The defendant also argues that he was entitled to a required finding of not guilty because the Commonwealth failed to present sufficient evidence to establish that he had the requisite intent under G. L. c. 266, § 18. He claims that because the crime is breaking and entering with the intent to commit a felony, the Commonwealth was required to prove the value of the stolen items and that he had the specific intent to commit a felonious larceny.

'The requisite felonious intent may be inferred from the actual commission of the felonious act, as well as from the circumstances attending the act, and from the conduct and declarations of the defendant.' Commonwealth v. Perron, 11 Mass. App. Ct. 915, 917 (1981) (citations and quotations omitted). A jury may infer intent from the evidence and circumstances disclosed at trial and may conclude that a defendant 'intended to steal whatever the [car] contained although its contents may have been unknown to him.' Commonwealth v. Schraffa, 2 Mass. App. Ct. 808, 809 (1974). Additionally, 'it was not necessary for the Commonwealth to present evidence of the value of the property actually stolen, or, in fact, that any property was actually stolen.' Commonwealth v. Hill, 57 Mass. App. Ct. 240, 247 (2003).

The evidence showed that the defendant repeatedly struck and then broke a car window and possessed the intent to steal. Afterwards, he disposed of the backpack he took with the books inside, keeping the cellular telephone. Sufficient evidence was presented to the jury and the motion for a required finding was appropriately denied. ,

The Commonwealth correctly concedes that there was insufficient evidence to sustain a conviction of malicious destruction of property over $250. Because the defendant was sentenced to one year for each count to be served concurrently, we need not remand for resentencing, as the vacated sentence will not materially alter the length of his sentence. See Commonwealth v. Johnson, 461 Mass. 44, 54 n.12 (2011).

The other claims of the defendant are also without merit. The theory of the defense was mistaken identity. Under the circumstances, the judge was not required to undercut that strategy by sua sponte giving a lesser included jury instruction. See Commonwealth v. Mills, 54 Mass. App. Ct. 552, 554 n.3 (2002). As for the defendant's claim that he was improperly tried for the larceny count which, in his view, had been dismissed, suffice it to say that the dismissal was predicated upon the plea being accepted; as the plea never materialized, neither did the dismissal of the charge. Indeed, the motion judge never ruled on the Commonwealth's request; nor did the defendant object to being tried on the count during trial.
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The judgments for breaking and entering and larceny are affirmed; the judgment for wilful and malicious destruction is reversed, the verdict is set aside, and judgment shall enter for the defendant on that count.

So ordered.

By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),


Summaries of

Commonwealth v. Diaz

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 19, 2012
11-P-784 (Mass. Apr. 19, 2012)
Case details for

Commonwealth v. Diaz

Case Details

Full title:COMMONWEALTH v. ANGEL L. DIAZ.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 19, 2012

Citations

11-P-784 (Mass. Apr. 19, 2012)