Opinion
16-P-733
08-08-2017
COMMONWEALTH v. John DOUCETTE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of two counts of armed robbery while masked following the robbery of a gasoline station in Peabody. On appeal, he contends that the judge abused his discretion by (1) admitting voice identification testimony without first conducting a voir dire to determine the reliability of the identification; (2) permitting the use of a chalk created by the Commonwealth that depicted surveillance video recordings of the defendant and the masked robber side-by-side; and (3) not giving a requested jury instruction regarding voice identifications. The defendant also claims that the evidence was insufficient to identify him as the perpetrator. We affirm.
Background. We summarize the facts the jury could have found. On April 9, 2013, Sean McGlone and Jacob Blake were working the evening shift at the Holden Oil gasoline station on Lynnfield Street when they were robbed at gunpoint. At about 9:00 P.M. , the defendant, who was a regular customer, purchased ten dollars' worth of gasoline from McGlone. The defendant was wearing jeans and a T-shirt. Ten minutes later, a man entered the store wearing jeans, a sweatshirt, and a face mask. The man, subsequently identified as the defendant, pointed a gun at McGlone and told him to "[g]et the money." He then pointed the gun at Blake and told him to walk around the counter to where McGlone was standing. McGlone opened the register and gave the defendant the cash that was in the drawer. Blake recognized the robber by his voice and identified him to police as the defendant. The entire episode was recorded by surveillance cameras. The jury saw a video recording of the robbery and a video recording of the defendant purchasing gasoline shortly before the robbery occurred. The defendant and the robber were of similar height and weight, and they appeared to be wearing the same jeans and shoes.
Discussion. 1. Voice identification. Prior to trial, defense counsel filed a motion in limine in which he requested a voir dire to determine the reliability of Blake's voice identification. The judge held a hearing on the motion, at which defense counsel acknowledged that there had been no specific identification procedures employed in this case. As a result, the defendant's motion was directed to the reliability of Blake's voice identification. Defense counsel argued that the identification was unreliable and thus inadmissible at trial because Blake had testified at a prior hearing that he was not sure about his identification. After a lengthy discussion and a review of Blake's prior testimony, the judge concluded otherwise. He ruled that a voir dire was unnecessary and that the identification was admissible, reasoning that it "is a jury issue to determine whether credit should be given to the voice identification."
Defense counsel also asked that the identification not be admitted at trial.
Shortly after the robbery, Blake testified at a dangerousness hearing pursuant to G. L. c. 276, § 58A.
The judge, who had the benefit of reviewing the transcript of the dangerousness hearing, noted that "in effect we've had a little voir dire here[;] we haven't had evidence but we've had an offer of proof with respect to the evidence and I don't see any need for a court action on [this] point[ ]."
On the basis of Blake's prior testimony, the judge was entitled to conclude that Blake's testimony at trial would "provide enough information to allow the jury to conduct an independent assessment of the accuracy and reliability of his identification[ ]." Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 593 (2017). Accordingly, the judge did not abuse his discretion in ruling that the voice identification was admissible. See Commonwealth v. Johnson, 473 Mass. 594, 602 (2016). There was likewise no abuse of discretion in the determination that a voir dire was unnecessary, as it was not apparent what additional information of value could have been gained. See Commonwealth v. McLeod, 394 Mass. 727, 742 (1985). Indeed, as defense counsel later indicated, the judge "got all the information that would be included" in a voir dire from reviewing the transcript of Blake's prior testimony.
2. Use of the chalk. The Commonwealth introduced in evidence a compact disc containing surveillance video recordings that depict the defendant purchasing gasoline and the robbery (exhibit 5). There was no objection to its admission. Later, the Commonwealth presented a compilation video recording it had created, with two frames that played the surveillance video recordings side-by-side. Defense counsel objected to the new recording, which was marked for identification as a "chalk." After the chalk was played, the judge instructed the jury that it "is not an original tape" but is "two purportedly original tapes put together side by side, not meant to persuade you in any way, but just to enable you to look at them together at the same time." Although the chalk was not introduced as an exhibit, the prosecutor was permitted to use it during her closing argument, and the judge allowed the jury to have it during deliberations.
In marking the compilation video recording, the judge noted that the two frames accurately reflect the selected recordings and reasoned that, "if we had still photographs a jury would be able to hold those two photographs side by side and look at them in a jury room for as long as they want. You can't really do that with these clips unless it's done for them in advance."
We agree with the judge's analysis in every respect. Juries are instructed to use deductive reasoning and to make logical conclusions in their deliberations. Specifically, juries are permitted to conduct visual comparisons of evidence and courts have determined them competent to do so. See, e.g., Commonwealth v. Austin, 421 Mass. 357, 364-365 (1995) (juries allowed to compare photographs to persons photographs purport to depict); Commonwealth v. Guy, 454 Mass. 440, 446 (2009) (summaries of testimony admissible, provided that underlying records have been admitted in evidence and summaries accurately reflect records). Here, the surveillance video recordings were jointly introduced in evidence on a single compact disc. As the judge observed, the jury would not have the independent technical ability to view the two video recordings side-by-side. That the Commonwealth effectively used the surveillance evidence by creating the chalk is not a basis for reversing the judgments.
Commonwealth v. Wood, 90 Mass. App. Ct. 271 (2016), does not require a different result. Unlike in that case, where we concluded that introduction in evidence of a compilation was error because it was "not merely a neutral summary," id. at 277, the chalk in this case was not introduced as an exhibit.
3. Requested identification instruction. At the charge conference, defense counsel requested that the judge provide a jury instruction regarding "earwitness" identification, which essentially tracks the jury instruction regarding eyewitness identification to be given, where appropriate, in trials following the Supreme Judicial Court decision in Commonwealth v. Gomes, 470 Mass. 352, 359 (2015). The judge declined to do so.
We conclude that the judge did not abuse his discretion in declining to give the requested instruction because this case was tried before the Supreme Judicial Court issued its decision in Gomes. See Commonwealth v. Bastaldo, 472 Mass. 16, 18 (2015). Moreover, the judge's instruction regarding Blake's identification, to which there was no objection, was consistent with the so-called Rodriguez instruction, see Commonwealth v Rodriguez, 378 Mass. 296, 310-311 (1979), and accurately informed the jury about the various factors that can affect the reliability of a voice identification. In these circumstances, we discern no abuse of discretion.
The judge instructed the jury to consider Blake's capacity and opportunity to observe the defendant, whether Blake previously knew the defendant, the circumstances in which Blake made the identification, whether Blake had any motive to lie, and whether Blake's identification could have been honest but mistaken.
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4. Sufficiency of the evidence. Finally, the defendant argues that his motion for required findings of not guilty should have been allowed because there was insufficient evidence identifying him as the robber. There is no merit to this claim. Blake testified that he recognized the perpetrator's voice as that of the defendant and, as we have discussed, the surveillance video recordings provided a basis from which the jury could reasonably conclude beyond a reasonable doubt that the defendant committed the offenses. Viewing this evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the judge correctly denied the defendant's motion for required findings of not guilty.
Judgments affirmed.