Opinion
19-P-1592
10-29-2020
COMMONWEALTH v. Luz FIGUEROA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Luz Figueroa, was convicted of breaking and entering a building during the daytime with intent to commit a felony, G. L. c. 266, § 18 ; larceny over $250, G. L. c. 266, § 30 ; and defacement of property, G. L. c. 266, § 126A. The defendant subsequently filed a motion for a new trial that was denied. We consolidated the appeals from her convictions and from the denial of her motion for a new trial. In her appeal, the defendant contends that (1) there was insufficient evidence that she had the requisite intent to aid and abet, (2) accusatory statements by the police and the victim were hearsay and created a substantial risk of a miscarriage of justice, and (3) the trial judge improperly denied her motion for a new trial on the grounds of ineffective assistance of counsel because her statements to the police were involuntary or coerced. We affirm.
The Commonwealth proceeded on a theory of aiding and abetting as an accessory before the fact, see G. L. c. 274, §§ 2, 3.
Discussion. 1. Sufficiency of the evidence. "We review the denial of a motion for a required finding of not guilty to determine ‘whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged.’ " Commonwealth v. Barry, 481 Mass. 388, 397-398 (2019), quoting Commonwealth v. Whitaker, 460 Mass. 409, 416 (2011).
The evidence, viewed in the light most favorable to the Commonwealth, established the following. On July 4, 2016, at around 11 A.M. , Stephen Molino left his apartment in Stoughton and locked the deadbolt to his door. Around noon, Molino called his friend Luz Figueroa, who lived in the apartment upstairs, to let her know that he would be back in about an hour. By the time he returned to his apartment an hour later, Molino's deadbolt was jammed with a key blank and $23,000 hidden behind a nightstand in his bedroom had been stolen. The money was in a black bag, which the perpetrator had left behind. The nightstand and a bureau had been moved and returned to their original position, but nothing else within the apartment had been disturbed and nothing except the money was missing.
Immediately after Molino discovered the theft, he went to Figueroa's apartment, calling the police on the way. Figueroa made a series of inconsistent statements that indicated consciousness of guilt. Figueroa told Molino and the police that she had seen two black men in a blue car. She then went to her apartment where she was questioned further. She said that she saw a black man and a white man in a car of unknown color, before stating again that it was two black men. The day after the theft, July 5, 2018, Figueroa went to the Stoughton police station to give elimination fingerprints. She met with Stoughton Police Officer Robert Kuhn, who interviewed her for over an hour about the theft, and who made it clear that she was a suspect. During the course of the interview, she told the police that she was uninvolved, this time stating that there were two black men and one white man outside the apartment. She told the police that she never told "anyone else about the money in the home."
The next day, in a series of text message conversations, Figueroa admitted to Molino that her uncle had stolen Molino's money. She wrote: "I told him were u have ur shit not a bank," and "I fucked up buddy i did." When Molino asked whether she had told her uncle that Molino's money was in his bedroom, Figueroa responded, "I admit to it and now im gonna do time so afraid im gonna lose it." In her next text, sent one minute later, she stated that "i will never do anything like this if i knew it would have never happened please."
In the text messages, Molino and Figueroa also discussed at length Figueroa's and her mother's attempts to recover the money from her uncle. Figueroa also asked Molino to lie to the police, that is, to tell them that his brother had taken the money. The evening of the theft, Figueroa and her boyfriend offered Molino a $5,000 loan, but she later told police that she was having money problems. Two days later she sent a text message to Molino in which she said she was "broke," by way of explanation as to why she could not come up with the missing money.
At the time of the theft, only Molino, Figueroa, and Molino's brother knew that Molino kept cash in his bedroom.
To prove that a defendant aided and abetted in the charged offenses, "[t]here is no requirement that the Commonwealth prove precisely what role the defendant played -- whether [s]he acted as a principal or an accomplice (or joint venturer)." Commonwealth v. Sifa Lee, 483 Mass. 531, 547 (2019), quoting Commonwealth v. Silva, 471 Mass. 610, 621 (2015). Instead, the Commonwealth must establish, "beyond a reasonable doubt, that the defendant ‘knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.’ " Silva, supra, quoting Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).
The defendant maintains that the evidence shows only that she told her uncle about the money, but does not support a finding that she intended that he break in and steal it. Viewed in the light most favorable to the Commonwealth, there was evidence from which a rational jury could infer that Figueroa knowingly participated in the charged offenses, with the intent necessary for each offense. See Zanetti, 454 Mass. at 468. In Figueroa's text messages to Molino she admitted she told her uncle about the money hidden in his bedroom. The text messages ("I admit to it and now im gonna do time") may also be read as a direct admission of guilt. While Figueroa also denied that she was involved several times during the text message exchange, it was for the jury to resolve any conflict in the evidence. See Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 804 (2020), citing Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Breaking and entering with intent to commit a felony requires that one "breaks and enters in the day time a building ... with intent to commit a felony." G. L. c. 266, § 18. The felony contemplated, larceny by stealing, requires evidence of "(1) the unlawful taking and (2) carrying away (asportation) (3) of personal property of another (4) with the specific intent to deprive the person of the property permanently." Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 27 (2003), citing G. L. c. 266, § 30. Commonwealth v. Mills, 436 Mass. 387, 394 (2002).
Notably, nothing else of value in Molino's apartment was taken or inspected by the culprit, who apparently went straight from the front door to Molino's bedroom and searched behind two pieces of furniture before taking the cash. The jury could reasonably infer that Figueroa did not merely let her uncle know that Molino kept cash in his apartment, but instead told him exactly where it was hidden because she intended that he use that information to enter the apartment and take the cash. The timing of her immediate offer to arrange to have her boyfriend loan him money, even though she was broke, was suspicious enough to permit a jury to find that she may have recently acquired ready access to cash.
In addition to this direct and circumstantial evidence, Figueroa's initial denials of any involvement, as well as her repeated attempts to deflect suspicion onto others reflects consciousness of guilt. See Commonwealth v. Vick, 454 Mass. 418, 424-425 (2009). She repeatedly told the officers during the police interview that she was uninvolved, only to ultimately admit to Molino that she was. She first attempted to blame either one or two black men she claims to have seen in the parking lot, and when that failed, told Molino to tell the police that he suspected his brother was the culprit. This case is therefore unlike those in which knowledge of a piece of the alleged joint venture is insufficient, by itself, to establish the shared intent to commit the underlying offense. See Commonwealth v. Mandile, 403 Mass. 93, 101 (1988) ("Mere knowledge that [joint venturer] was armed ... does not permit the inference of the critical element of intent" to kill). In addition to her admission, there was evidence that the defendant "intentionally assisted" her uncle in the theft by supplying the precise location of the money (citation omitted). Id. A reasonable jury could infer from the evidence that Figueroa intended for her uncle to steal the money.
We reject the defendant's contention that the Commonwealth improperly relied on evidence of "consciousness of guilt alone." See Commonwealth v. Vick, 454 Mass. 418, 424 (2009).
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Regarding the final charged offense, vandalism, "the intent required for wanton defacement of property under G. L. c. 266, § 126A, is general intent." Commonwealth v. McDowell, 62 Mass. App. Ct. 15, 24 (2004). "A defendant's intent, like other mens rea requirements, may be established circumstantially." Id., quoting Commonwealth v. Smith, 17 Mass. App. Ct. 918, 919 (1983). Molino's apartment door was locked. Figueroa did not have a key to the apartment door. Once the jury found that Figueroa told her uncle about the cash in the apartment so that he could steal it, the jury could also reasonably conclude that she had the general intent that the uncle break Molino's lock to accomplish that end.
The defendant's reliance on Commonwealth v. Redmond, 53 Mass. App. Ct. 1 (2001), for the proposition that the destruction of the deadbolt was collateral to the breaking and entering, and therefore could not be separately charged, is misplaced. Redmond addresses the requirement that proof of "wilful and malicious" destruction of property, a specific intent crime, include proof that such destruction was motivated by "cruelty, hostility or revenge." Id. at 4. See G. L. c. 266, § 127. The indictment in Redmond did not charge wanton conduct. See Redmond, supra at 8-9. Here the defendant was charged not only with "willful and malicious" conduct, but with "wanton" conduct under G. L. c. 266, § 126A, and the jury were instructed on each. The jury were permitted to convict on the basis of wanton conduct, a general intent crime. See McDowell, 62 Mass. App. Ct. at 22.
2. Hearsay. At trial a videotape of Figueroa's interrogation was played for the jury. Officer Kuhn repeatedly accused the defendant of participating in the crimes. In addition, Molino's text messages, which are largely comprised of accusations that Figueroa was involved in the theft and his attempts to recover the money from her, were admitted in evidence. Figueroa contends that evidence of both Officer Kuhn's and Molino's accusations against her should not have been admitted because they are hearsay. See Commonwealth v. Bonnett, 472 Mass. 827, 838 n.13 (2015), quoting Commonwealth v. Morse, 468 Mass. 360, 375 n.20 (2014) ("extrajudicial accusatory statements made in the presence of a defendant, which [she] has unequivocally denied, are [inadmissible] hearsay"). "As neither claim was preserved at trial, we consider error, if any, under the substantial risk of a miscarriage of justice standard." Commonwealth v. Pena, 96 Mass. App. Ct. 655, 658-659 (2019), citing Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We review a claim of error in the admission of evidence on hearsay grounds for an abuse of discretion. See Commonwealth v. Andre, 484 Mass. 403, 410 (2020). Although the defendant brought a motion in limine to exclude some of the statements in the videotaped interrogation, the defendant did not move to exclude the questions and answers of which she now complains. Similarly, she moved to exclude some of the text messages, but not the ones at issue.
It is evident that these choices were strategic. The defendant's defense at trial was that her uncle did it, and that while she may have mentioned the money to him, she never intended that he steal it. In her opening statement defense counsel told the jury to read the text messages carefully because they would show that the defendant was not involved. In closing argument defense counsel urged the jury to find that "the defendant was telling the truth when she denied involvement" despite multiple and persistent accusations by Officer Kuhn. She also told the jury that the "text messages are clear. She had no idea what her uncle intended."
These strategic decisions were for defense counsel to make. There was little likelihood of suppressing all of the text messages, particularly the text message "I admit it." See Bonnet, 472 Mass. at 838 n.13 ("Such accusatory statements shed their hearsay character when they are offered not for the truth of the matters asserted, but to provide context for admissible statements of the defendant"); Commonwealth v. Zagrodny, 443 Mass. 93, 99 (2004) ("an admission to a private citizen is admissible unless it is coerced"). Sophisticated trial counsel developed a coherent trial strategy relying on the defendant's stalwart denials. We do not impose on the trial judge an obligation to enforce evidentiary rules that defense counsel has made a strategic decision to forgo, or to interfere with a defendant's representation of her client by sua sponte excluding evidence to which defense counsel has, for evident strategic reasons, lodged no objection. Id. at 98-99.
3. Ineffective assistance of counsel. Figueroa maintains that her motion for a new trial should have been allowed, because her first trial counsel was ineffective for failing to move to suppress her statements as involuntary. "We review the denial of [a motion for a new trial] ‘for a significant error of law or other abuse of discretion.’ " Bonnett, 472 Mass. at 833, quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). "Where, as here, the motion judge was also the trial judge, ‘we give "special deference" to the judge's findings of fact and the ultimate decision on the motion.’ " Commonwealth v. Dowds, 483 Mass. 498, 503-504 (2019), quoting Commonwealth v. Kolenovic, 471 Mass. 664, 672-673 (2015), S.C., 478 Mass. 189 (2017).
Under the familiar Saferian standard, the defendant must show that the behavior of counsel fell "measurably below that which might be expected from an ordinary fallible lawyer," and thereby "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). An available ground of "defense is ‘substantial’ for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented." Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
Counsel's performance did not fall below that of ordinary fallible counsel because any argument that Figueroa's statements were involuntary would have been futile. "The test for voluntariness is ‘whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.’ " Commonwealth v. Lopez, 485 Mass. 471, 482 (2020), quoting Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011). "Relevant factors include, but are not limited to, ‘promises or other inducements, conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings.’ " Lopez, supra, quoting Commonwealth v. Magee, 423 Mass. 381, 388 (1996).
Our independent review of the video renders the claim of involuntariness untenable. The defendant presented as an alert and perspicacious adult who understood the nature of the interrogation and forcefully questioned the police immediately upon her arrival regarding the reasons for her presence. She gave clear answers to the questions asked, moved freely about the room, took phone calls, and made phone calls during the questioning. She stood her ground regarding her involvement in the theft, negotiated with the police regarding the search of her home, and refused to allow them to search her cell phone. She received Miranda warnings and signed a consent form. Although she cried at certain points in the interview, this display of emotion or discomfort did not render her statements involuntary. See generally Commonwealth v. Weidman, 485 Mass. 679, 688-689 (2020).
Figueroa further maintains that Officer Kuhn's statement that he would call the Department of Children and Families (DCF) to take her children if she were arrested, rendered the interview involuntary. See Commonwealth v. Monroe, 472 Mass. 461, 467-468 (2015). Although the officer's threats were not quite the " ‘barrage’ of references to the suspect's daughter in Monroe," Commonwealth v. Hammond, 477 Mass. 499, 503 (2017), quoting Monroe, 472 Mass. at 467, the repeated and gratuitous references to taking the defendant's children crossed the line. However, unlike Monroe, where "[w]ithin minutes of these repeated references ... the defendant made incriminating statements," see Monroe, supra, the defendant here pushed back against the officer, stating that her mother or the children's father would take them (to which the officer acceded), and did not make incriminating statements in response to the threats. The judge did not abuse his discretion in denying the defendant's motion for a new trial.
Judgments affirmed.
Order denying motion for new trial affirmed.