Opinion
10-P-2269
03-27-2012
COMMONWEALTH, v. DANIEL ESDALE.
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
The defendant appeals from his conviction, after a jury trial, of attempted breaking and entering in the daytime with the intent to commit a felony, in violation of G. L. c. 274, § 6. The charge arose out of an attempt by an unknown individual to gain entrance to a residence on Dix Street, in the Dorchester section of Boston, while the defendant and the codefendant, Deandre English, stood by in the yard next door. The defendant claims that his motion for a required finding of not guilty should have been allowed because the evidence was insufficient to prove that he was a joint venturer, and that the trial judge erred by allowing the prosecutor to examine a witness about threats made to him by a third party. We affirm.
The defendant was tried with codefendant Deandre English, who was convicted of the same crime as the defendant. English appealed, but the appeal was dismissed for failure to prosecute.
1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), there was ample evidence that the defendant was engaged in a joint venture. Under the legal principles applicable to this case, a '[j]oint venture is established if the Commonwealth proves beyond a reasonable doubt (1) that the defendant was present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary.' Commonwealth v. Silanskas, 433 Mass. 678, 689-690 (2001). See Commonwealth v. Caramanica, 49 Mass. App. Ct. 376, 381-382 (2000), and cases cited. '[T]he jury may infer the requisite mental state [for a joint venturer] from the defendant's knowledge of the circumstances and subsequent participation in the offense,' Commonwealth v. Reaves, 434 Mass. 383, 392 (2001), and 'inferences ' need only be reasonable and possible and need not be necessary or inescapable," Commonwealth v. Freeman, 442 Mass. 779, 783 n.4 (2004), quoting from Commonwealth v. Daughtry, 417 Mass. 136, 140 (1994).
Because the commencement of the defendant's trial predated the issuance of the rescript in Commonwealth v. Zanetti, 454 Mass. 449 (2009), it is governed by prior law. Id. at 467.
Here, the Commonwealth's evidence established that, two days before the crime, the defendant and English were seen walking past the residence several times. On the day before the crime, the defendant was seen sitting across the street from the residence, watching as the occupants loaded suitcases into their car and left on vacation. On the day of the crime, the defendant and English were seen on the property next door to the residence, looking around in different directions while an unknown third man positioned outside the residence stood on a bicycle and used a knife in an attempt to push an air conditioner into the residence through a window. While the third man was doing so, the defendant was conversing with him. When a neighbor began banging on his window and waving his arms at the three men, they fled at the same time and in the same direction. The defendant and English were apprehended by police shortly thereafter.
The third man was never found or identified.
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From this evidence, and substantially for the reasons and authorities relied upon in the Commonwealth's brief at pages 12 through 16, the jury were well entitled to conclude that, having surveilled the residence in advance and having acted as a lookout while the unknown third man tried to gain entrance, the defendant was engaged in a joint venture.
2. Testimony concerning witness intimidation. During direct examination by the Commonwealth, one of the witnesses who had observed the defendant, English, and the unknown third man at the scene of the crime testified that the defendant was texting or talking on his cellular telephone during the attempted breaking and entering. Previously, however, the witness had reported that the defendant was acting as a guard or a lookout for the unknown third man. As a result of this inconsistency, the judge allowed the prosecutor to conduct a voir dire. During the voir dire, the witness testified that after making the statement that the defendant was acting as a lookout, he was visited by an individual named 'Robertito,' who threatened him and told him not to go to court, or if he did, to lie about the defendant's role in the crime. The witness explained that he feared Robertito, thought he was 'crazy,' and was reluctant to testify.
After the voir dire, and over the defendant's objection, the judge allowed the witness to be questioned in front of the jury regarding his intimidation by Robertito. The prosecutor made no suggestion that the defendant, himself, had played any role in intimidating the witness; and the judge gave a limiting instruction informing the jury that the testimony was admitted solely on the issue of the witness's state of mind for the purpose of assessing his testimony, and for no other reason.
Against this backdrop, there is no merit to the defendant's claim of error. The judge properly exercised her discretion in allowing the questioning, and the questioning was not improper. See Commonwealth v. Fitzgerald, 376 Mass. 402, 412-413 (1978); Commonwealth v. Charles, 57 Mass. App. Ct. 595, 600 (2003). Furthermore, the limiting instruction (to which the defendant did not object) appropriately constrained the jury's consideration of the witness's testimony. Thus, without error, there was no substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Cohen, Brown & Fecteau, JJ.),