Opinion
11-P-1481
05-05-2017
COMMONWEALTH v. Adonys ESPINAL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Three men, two of them masked with bandanas, broke into a hotel room intending to rob its occupants of drugs and money. One of the intruders was armed with a .22 caliber handgun, and one was carrying a replica firearm. When fighting broke out between the occupants of the room and the intruders, one of the occupants was fatally shot.
The Commonwealth proceeded under the theory that the defendant, Adonys Espinal, masterminded the crime, carried the .22 caliber handgun, and fired the fatal shot. Unconvinced, the jury acquitted him of all charges but one: armed home invasion as a joint venturer. The defendant appeals from the judgment and from the denial of his motion for a new trial. We affirm.
The jury acquitted the defendant of charges of murder in the first and second degree, armed robbery while masked, armed assault with intent to murder, and possession of a firearm.
Discussion. Joint venture. Conceding that the evidence would have been sufficient to convict him as a principal, the defendant claims that the evidence was insufficient to prove that he participated in the hotel room invasion solely as a joint venturer. He reasons that because the jury must have disbelieved the evidence that the defendant himself was armed and fired the fatal shot, the conviction cannot be sustained without proof that someone other than the defendant was armed when the men entered the hotel room.
In the case of a defendant's conviction of a crime as a joint venturer, we "examine whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). When a defendant is charged as a joint venturer in a crime that includes possession of a weapon as an element, the Commonwealth must also show that the defendant "either was armed himself or knew that an accomplice was armed." Commonwealth v. Tejeda, 473 Mass. 269, 271 (2015). See Commonwealth v. Benitez, 464 Mass. 686, 689 n.4 (2013) ("It also was necessary for the Commonwealth to prove that the defendant was armed with a dangerous weapon or had knowledge that [an accomplice] was so armed"). We do not accept the premise of the defendant's argument: that he cannot be convicted as a joint venturer when the evidence strongly suggests that he was the principal perpetrator. See Commonwealth v. Netto, 438 Mass. 686, 700-701 (2003). "To meet the elements of joint venture the Commonwealth ‘need not prove that someone other than the defendant was the actual perpetrator.’ " Zanetti, supra at 460, quoting from Netto, supra at 701.
"We apply the principles clarified in Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009), to claims concerning the sufficiency of the evidence of joint venture, even though the trial preceded that decision." Commonwealth v. Benitez, 464 Mass. 686, 689 n.5 (2013). See Commonwealth v. Jansen, 459 Mass. 21, 28 n.20 (2011), citing Zanetti, supra at 467 & n.21 ("[T]he only prospective application of the principles announced in our Zanetti decision pertains to our recommended jury instruction. Sufficiency of the evidence claims regarding joint venture should be evaluated conformably with what we clarified in the Zanetti case").
The evidence was sufficient to show that the defendant knowingly participated in an armed home invasion with the requisite intent. "[T]he evidence in this case was sufficient to demonstrate that several men, at least one of whom was armed, were involved in the underlying home invasion during which the killing occurred, and that the defendant was a participant in that home invasion." Taylor v. Commonwealth, 447 Mass. 49, 54 (2006). Even if the jury rejected evidence that the defendant fired the fatal shot, or even possessed a firearm, "they still could have credited ... testimony to the effect that the defendant was a member of the group that committed the home invasion itself." Ibid.
To the extent that the jury, following the judge's instructions, could not find the defendant guilty as a joint venturer unless the Commonwealth proved that "another" intended to commit the crime and that the defendant knew "the other" possessed a weapon, we conclude that the evidence was sufficient as well. In Zanetti, supra at 456, the court found that if the defendant himself did not possess the gun that fired the fatal shot, he could not be convicted as a joint venturer because there was no evidence that he knew that his companion was armed or that he shared his companion's intent to use the gun. Here, by contrast, even if the jury believed that the defendant was not armed himself, there was evidence from which they could find that he knew one or two of his companions were.
This aspect of Zanetti has been limited to felony-murder cases, where the underlying felony requires possession of a weapon. See Commonwealth v. Britt, 465 Mass. 87, 99-100 & n.11 (2013).
The evidence showed that three men—the defendant, Michael Appleton, and John Lendall—planned an armed robbery of the victim's hotel room. They rented the room across the hall and took a .22 caliber handgun, ammunition, and personal items into the room. They agreed that Lendall should get "another gun" from his house, a replica that "look[ed] like a real gun," with a clip, slide, and regular chamber, but was "a lot more intimidating." The victim was shot with a .22 caliber projectile. "Jurors, of course, are free to believe or disbelieve the testimony of each witness in whole or in part," Zanetti, supra at 457, so long as they do not "distort or mutilate any integral portion of the testimony to permit them to believe an unfounded hypothesis." Id. at 458, quoting from Commonwealth v. Perez, 390 Mass. 308, 314 (1983). Here, if the jury did not believe that the defendant carried the .22 caliber handgun into the victim's hotel room, they could rationally conclude that one of the others did.
manIndeed, the jury could have found the defendant guilty of armed home invasion as a joint venturer solely on the basis of Lendall's replica gun. "[A] replica or fake weapon is a dangerous weapon if the victim would, in all the surrounding circumstances, reasonably believe that the object was a real weapon." Commonwealth v. Powell, 433 Mass. 399, 402 (2001). See id. at 401 ("The standard definition of ‘dangerous weapon’ ... also includes items that are used or displayed in a way such that they reasonably appear capable of causing serious injury or death"). Here, with respect to armed home invasion, the judge instructed that "[a] dangerous weapon is any instrument that by nature of its construction or the manner of its use is capable of causing grievous bodily injury or death or would be perceived by a reasonable person as capable of such injury" (emphasis supplied). The jury would have been warranted in finding that Lendall's replica gun satisfied the definition of "dangerous weapon."
This instruction was consistent with the instruction approved with respect to a charge of armed robbery in Powell, supra at 402 n.2 ("A person who uses a toy gun or other fake weapon to commit a robbery may be convicted of an armed robbery if the victim reasonably took it to be a real gun or weapon which was capable of inflicting bodily injury"). Both the armed robbery statute and the armed home invasion statute require the Commonwealth to prove that the defendant was "armed with a dangerous weapon." Compare G. L. c. 265, § 17, as appearing in St. 1952, c. 406, § 1 ("Whoever, being armed with a dangerous weapon, assaults another and robs ..."), with G. L. c. 265, § 18C, as inserted by St. 1993, c. 333 ("Whoever knowingly enters the dwelling place of another ... while armed with a dangerous weapon ..."). In terms of proof of the nature of the weapon, nothing in the language of the home invasion statute differentiates it from armed robbery.
As we conclude that the evidence was sufficient to prove the defendant's guilt as a joint venturer, we reject the defendant's claim that the evidence did not warrant an instruction on joint venture liability.
Reconstruction of jury instructions. During the final charge, the stenographer's equipment malfunctioned. Although the judge learned of the problem soon enough to give counsel an opportunity to repeat their objections for the record, much of the charge itself had to be reconstructed afterwards. "[T]he fact that the transcript is unavailable through no fault of the parties does not warrant a new trial unless the trial proceedings cannot be reconstructed sufficiently to present the defendant's claims." Commonwealth v. Harris, 376 Mass. 74, 78 (1978). In this case, the record was easily reconstructed because the judge had provided the jury with an outline of the elements of the crimes and of joint venture liability, as well as a "copy of the instructions which were read verbatim to the jury." A judge may properly reconstruct a record based on her recollection of her customary practices. Compare Commonwealth v. Quinones, 414 Mass. 423, 432 (1993) ; Commonwealth v. Rzepphiewski, 431 Mass. 48, 54 (2000) ; Commonwealth v. Haskell, 76 Mass. App. Ct. 284, 290 (2010). Reconstruction based on the written copy of the instructions actually provided to the jury is a far more reliable method. We also reject the defendant's claims, raised for the first time on appeal, that the judge erred by failing to repeat the words "beyond a reasonable doubt" and "dangerous" in the joint venture instructions and by not referring to acquittal, burden of proof, or reasonable doubt in the outline of the charges. The reconstructed instructions on "home invasion with a dangerous weapon" (emphasis supplied) repeatedly used the word "dangerous" and defined "dangerous weapon." The judge gave complete, comprehensive instructions on the presumption of innocence and proof beyond a reasonable doubt (this part of the charge was transcribed and did not need to be reconstructed), and the reconstructed instructions repeatedly informed the jury that they were required to find the defendant "not guilty" if the Commonwealth failed to prove any element of any of the crimes. For example, the armed home invasion instruction ended with the sentence, "If, however, after your consideration of all the evidence you find that the Commonwealth has not proved any one of the four (4) elements beyond a reasonable doubt, you must find the defendant not guilty." The fact that the jury acquitted the defendant of every charge but one conclusively demonstrates that they received, understood, and followed these instructions. "Viewed as a whole, ‘we conclude that the instruction[s] correctly conveyed to the jury the level of proof required to convict the defendant.’ " Commonwealth v. Byers, 62 Mass. App. Ct. 148, 152 (2004), quoting from Commonwealth v. Gagliardi, 418 Mass. 562, 572 (1994), cert. denied, 513 U.S. 1091 (1995).
Identification issues. The defendant argues that the judge's failure to give any instructions on identification entitles him to a new trial. He also argues that certain witnesses were improperly permitted to identify him in court.
The defendant filed a request for instructions with respect to identification, including an instruction on honest but mistaken identification. See Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983). At the charge conference, defense counsel requested that the judge "give either my instruction or at least the model instruction on identification." The judge indicated that she would give the model instruction, including a Pressley instruction. However, the judge inexplicably omitted the promised instruction from her charge. This was error. Because the defendant did not object to the absence of the instruction, we review to determine whether the omission created a substantial risk of a miscarriage of justice. Commonwealth v. Arias, 84 Mass. App. Ct. 454, 463-464 (2013).
We reject the defendant's argument that he is entitled to a more favorable harmless error standard based on the transcription failure. As discussed above, the judge gave the parties an opportunity to repeat their objections to the charge, and the defendant responded with a litany of claims of error, none having to do with instructions on identification.
We are confident that the absence of the then-standard instruction on identification, see Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979), did not create a substantial risk of a misidentification. Although no instruction was given, defense counsel vigorously cross-examined Paul Barresi, Mary Smith, and Larry Antonetti regarding their drug use, their ability to see the defendant's face, and the weaknesses of their prior out-of-court identifications. More importantly, the defense was not that these witnesses mistakenly identified the defendant; rather, defense counsel argued that they falsely identified the defendant in exchange for the Commonwealth's promises of leniency. Finally, the Commonwealth's most important identification witnesses were not Barresi, Smith, and Antonetti, but rather were Lendall, the defendant's girl friend Danielle McManus, and his friends Benny Spinazzola and Anthony Lograsso, all of whom were involved to some extent in helping the defendant prepare for or conceal evidence of the crime, and to whom the defendant made incriminating statements. Identification was not an issue with respect to any of these witnesses.
The judge's instructions on evaluating the credibility of the witnesses allowed the jurors to focus on this defense. For example, the judge instructed, "You may consider a witness' character, appearance and demeanor on the witness stand, frankness or lack of frankness in testifying, whether the testimony is reasonable or unreasonable, probable or improbable. You may take into account how good an opportunity the witness had to observe the facts about which she testified, the degree of intelligence the person shows and whether the person's memory seems accurate. You may consider a person's motive for testifying, whether the person displays any bias in testifying and whether or not the person has any interest in the outcome of this case." Given that the judge's instructions directed the jury to the crux of the defense, it is understandable that the defendant did not object to the absence of the standard instruction on identification.
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Similarly, we discern no error in the admission of Barresi's, Smith's, and Antonetti's in-court identification of the witnesses. The trial was held in 2006, well before the decisions in Commonwealth v. Crayton, 470 Mass. 228 (2014), and Commonwealth v. Collins, 470 Mass. 255 (2014), which imposed supervisory rules for in-court identifications that do not apply retroactively. We agree with the judge who denied the motions to suppress the identifications and the judge who denied the motion for a new trial that the identifications were not the product of unduly suggestive procedures under then-prevailing case law and constitutional standards.
Other claims. The defendant raises a number of other claims, including issues concerning the use of DNA evidence at trial (the judge's denial of his request for a continuance to allow him to consult a DNA expert, the admissibility of the evidence, the propriety of the prosecutor's closing argument, and the denial of his right to confront certain forensic analysts), the Commonwealth's alleged withholding of exculpatory evidence, and limitations on the defendant's ability to cross-examine certain witnesses. The defendant also claims that the judge erred in denying his motion for a new trial without an evidentiary hearing. For the reasons set forth at pages twenty-eight through fifty of the Commonwealth's brief, we conclude that these claims lack merit.
Judgment affirmed.
Order denying motion for new trial affirmed.