Opinion
No. 11–P–1559.
2012-11-7
COMMONWEALTH v. Shauna HUBERT.
By the Court (BERRY, GREEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Our review of the record satisfies us that the motion judge's findings of fact concerning the defendant's waiver of her Miranda rights and the voluntariness of her statements during subsequent questioning by police are not clearly erroneous, and that his legal conclusion that the defendant's waiver and subsequent statements were voluntary is supported by those findings.
The judge was entitled to take judicial notice of the defendant's criminal record. See Commonwealth v. Thurston, 53 Mass.App.Ct. 548, 554 (2002).
Our view of the case does not require us to consider or resolve the parties' dispute concerning whether the defendant was in custody during her questioning.
There was likewise no error in the trial judge's denial of the defendant's motion for a required finding of not guilty, because the defendant's admissions were supported by adequate independent corroboration. As the defendant acknowledges, the “corroboration doctrine” requires only that there be “some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary.” Commonwealth v. Leonard, 401 Mass. 470, 473 (1988), quoting from Commonwealth v. Forde, 392 Mass. 453, 458 (1984). “The corroborating evidence need not point to the accused's identity as the doer of the crime.” Commonwealth v. Forde, supra. In the present case, there was ample corroboration of the proposition that the gun existed and was not imaginary. Contrary to the defendant's contention, Commonwealth v. Hubbard, 69 Mass.App.Ct. 232, 236 (2007), erects no requirement that the element of possession by a particular person be corroborated. In any event, LaRose's statement that he placed the handgun in the defendant's purse corroborated her admission that she possessed it.
In addition to Lawrie's testimony that she heard a “pow” immediately before coming into the kitchen (where she saw LaRose holding a handgun), the evidence included accounts of a bullet protruding from the side of Spencer's head.
Likewise inapposite is the defendant's reliance, at oral argument, on Commonwealth v. Leonard, supra at 472 & n. 1. In that case the court pointedly observed that there was no evidence that the defendant's wife had consumed alcohol. Accordingly, unless the defendant in that case had operated the motor vehicle, there had been no crime.
For purposes of testing the sufficiency of the evidence, it is unnecessary to credit LaRose's statement that the defendant was unaware of its presence in her purse.
Judgment affirmed.