Opinion
No. 10–P–1492.
2012-10-26
COMMONWEALTH v. INNIS I., a juvenile.
By the Court (RAPOZA, CJ, MILLS & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a five-day jury trial at Lynn Juvenile Court, the juvenile was adjudicated delinquent on charges of assault and assault and battery in violation of G.L. c. 265, § 13A; aggravated assault and battery by means of a dangerous weapon causing serious bodily injury in violation of G.L. c. 265, § 15A( c ) and ( d ); and a civil rights violation under G.L. c. 265, § 37, not causing bodily injury. The juvenile appeals from those adjudications. Background. Considered in the light most favorable to the Commonwealth, the pertinent facts are as follows. On the afternoon of July 22, 2009, the juvenile, then thirteen, was at a skate park behind Lynn Vocational Technical High School, next to a ball field called McManus Field. He was with about ten other boys ranging in age from eleven to fifteen. One of the boys called out to the other boys: “let's go get that Guato,” “let's go beat up that Guato,” or “there's Guatos on the field.”
The boys understood this comment to refer to two men on an embankment next to the McManus Field baseball diamond who they believed to be Guatemalan. One of these men, the victim, Damian Merida, was lying on the ground. The principal aggressor began walking across the field toward the men, with the juvenile and the other boys following. The second man on the embankment noticed the boys and left the area. Merida remained lying face forward on his stomach on a piece of cardboard. There ensued a brutal beating of Merida, with the worst of the violence perpetrated by boys other than the juvenile in this appeal.
Three government witness against the juvenile each testified to slightly different variations of the statement.
The juvenile stood at the bottom of the embankment, about ten to fifteen feet from Merida, and had a handful of small rocks or pebbles, some of which he threw at the victim while the attack was ongoing. Forty-five minutes to one hour later, the juvenile and some of the other boys from the attack were involved in the harassment of another man on Western Avenue in Lynn (Western Avenue incident). The boys accosted the man because they thought he was Guatemalan. Lynn police Officer Ralph Sirois, alerted by two adult witnesses, questioned the boys and wrote down their names afterward.
Discussion. On appeal, the juvenile's primary claims of error, as pressed by his attorney at oral argument, are as follows. First, the admission of subsequent bad act evidence pertaining to the Western Avenue incident created a substantial risk of a miscarriage of justice. Second, there was insufficient evidence to support the juvenile's convictions. Third, the prosecutor improperly commented upon the juvenile's potential sentence during closing argument. The juvenile raises other claims of error that we address at the conclusion of this opinion. None of the juvenile's arguments are availing.
1. Evidence of the Western Avenue incident. The Commonwealth moved in limine on the first day of trial to admit in evidence subsequent bad acts on the part of the juvenile, who participated with six other boys in the harassment incident on Western Avenue. Defense counsel made no objection to the admission in evidence of this uncharged conduct, nor did he request a specific limiting instruction. We therefore review to determine whether admission of this evidence constituted error and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293–294, 296–298 & n. 11 (2002).
The Commonwealth was required to satisfy the judge, by a preponderance of the evidence, that the jury could reasonably conclude the Western Avenue incident occurred and that the juvenile participated in it. See Commonwealth v. Leonard, 428 Mass. 782, 785–786 (1999); Mass. G. Evid. § 104(b)(1) & note, at 11 (2012). To be admitted as subsequent bad acts, the evidence also must be probative of the juvenile's motive and intent at the time of Merida's beating. See Commonwealth v. Gollman, 51 Mass.App.Ct. 839, 845–846 (2001), S. C., 436 Mass. 111 (2002); Commonwealth v. Blackmer, 77 Mass.App.Ct. 474, 481 n. 12 (2010).
The juvenile contends that the Commonwealth did not meet this burden. We disagree. The Commonwealth offered direct testimony from one boy who was involved in the Western Avenue incident and another who witnessed it, both of whom described the juvenile as participating in the harassment. The evidence showed that the juvenile was part of a group of boys who participated in the attack on the victim, and who shortly thereafter engaged in the physical and verbal harassment of a man they believed to be Guatemalan. The juvenile was described as one of three boys who were “tormenting the man.” There was testimony from one of the other boys in the group that the juvenile actually “bumped into” the man during the incident. The evidence regarding the temporal proximity, location, and form of the conduct provided a sufficient basis for a reasonable jury to conclude that the juvenile actively took part in the Western Avenue incident and did so because of his own hostility to the victim's ethnic group. Cf. Commonwealth v. Gollman, supra at 845–846.
To the extent the juvenile contends that if the Commonwealth met its burden, it did so by relying on “inadmissible hearsay,” we disagree. The three pieces of unobjected-to evidence to which he refers include: (1) Officer Sirois's testimony that he was alerted to the Western Avenue incident by two men, one of whom said “my friend was just attacked by those guys up there;” (2) the testimony of one of the other boys involved recounting statements made by Sirois when he encountered the group on the street; and (3) a statement by Detective Steven Pohle that the juvenile was identified as being amongst a group of “kids” who threw rocks at a Guatemalan man, presumably on Western Avenue.
Pohle made the statement to the juvenile's mother during an interview with the juvenile at the Lynn police station. An audiovisual recording of this interview was played for the jury.
The bulk of the statements in issue explain why Sirois approached and detained both the juvenile and the other boys, and why Pohle was later interviewing the juvenile. As such, the statements were admissible for nonhearsay purposes. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting from McCormick, Evidence § 249, at 734 (3d. ed. 1984) (“[A]n arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct”). Even if hearsay, the testimony in question was cumulative of properly admitted evidence and hence not unduly prejudicial. See Commonwealth v. Dingle, 73 Mass.App.Ct. 274, 283–285 (2008). Moreover, the prosecutor made no mention of these statements in his closing argument.
Finally, the judge properly instructed the jury on use of the Western Avenue evidence, curing any undue prejudice that may have accrued. See Commonwealth v. Cutts, 444 Mass. 821, 834–835 (2005). Indeed, the judge informed the jury that, “[s]pecifically, you may not use it to conclude that if the defendant committed a subsequent act, he must also have committed these charges.” Moreover, the jury's verdicts belie the juvenile's contention that the Western Avenue evidence overwhelmed their deliberations. The jury acquitted the juvenile of the three most serious charges against him and convicted him of lesser included offenses on two other delinquency complaints. The results of their deliberations thus indicate that the juvenile was not unduly prejudiced by the evidence to which he objects for the first time on appeal. Cf. Commonwealth v. Doyle, 73 Mass.App.Ct. 304, 308 (2008) (“[A]cquittals tend to confirm that the jurors did not allow their verdicts to be based on sympathy”). In sum, even if some of the testimony the juvenile now challenges contained hearsay, its admission did not create a substantial risk of a miscarriage of justice.
2. Sufficiency of the evidence. The complaints against the juvenile were issued in relation to his own act of throwing rocks and his participation in the attack with other boys who beat the victim with a bottle, a stick, and a shod foot. The juvenile argues that the Commonwealth failed to produce sufficient evidence to show either that he threw rocks at Merida or shared the intent of Merida's attackers. We view the evidence in the light most favorable to the Commonwealth to determine whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 433 U.S. 307, 319 (1979). We conclude that, viewed in this light, there was sufficient evidence to support the juvenile's adjudications.
Seven delinquency complaints went to the jury: three counts of armed assault with intent to murder; four counts of assault and battery by means of a dangerous weapon, causing serious bodily injury; and one count of violating a person's civil rights, causing bodily injury. The jury acquitted on all armed assault with intent to murder charges. The juvenile was adjudicated delinquent of assault and battery by means of a dangerous weapon for the use of a bottle and stick on Merida, adjudicated delinquent of the lesser included offense of assault and battery for the attack with a shod foot, and adjudicated delinquent of the lesser included offense of assault for his act of throwing rocks. The jury adjudicated him delinquent on the complaint charging him with a civil rights violation, but concluded that the violation did not cause injury.
The jury evidently concluded that the juvenile threw rocks at the victim but that none of those rocks struck him. This view was supported by the evidence and provided a sufficient basis for the juvenile's conviction for assault. See Commonwealth v. Kivlehan, 57 Mass.App.Ct. 793, 797 (2003). As to the jury's adjudications of delinquency on the complaints charging the juvenile with assault and battery by means of a dangerous weapon as a joint venturer, the evidence was sufficient to indicate that the juvenile “knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). Finally, the jury could have concluded that the juvenile's participation in the attack was motivated by Merida's ethnicity and that the juvenile willfully chose to participate. This is sufficient to support his adjudication of delinquency for a civil rights violation. See Commonwealth v. Stephens, 25 Mass.App.Ct. 117, 123–124 (1987).
3. Prosecutor's closing argument. The juvenile also contends that a remark by the prosecutor during his closing argument improperly served to minimize the juvenile's potential punishment, making conviction more likely. We conclude that the juvenile misconstrues the prosecutor's remark, which drew no objection from trial counsel.
While it is improper to inform a jury of the sentencing consequences of its verdicts, Commonwealth v. Sanchez, 70 Mass.App.Ct. 699, 701–702 (2007), S.C. 450 Mass. 1108 (2008), that did not occur here. The prosecutor, while telling the jury not to consider the punishment the juvenile faced if convicted, acknowledged that the different boys involved in the attack on Merida could face different punishments. Even if better left unsaid, the remark was an aside during a discussion of an essential component of the Commonwealth's case: the legal rule that a joint venturer is equally culpable with his confederates regardless of the extent of his participation in the enterprise. The prosecutor did not say what punishment the other boys did or would receive, and he did not misstate the juvenile's potential punishment. Cf. id. at 702.
Further, the judge specifically told the jurors in his preliminary instruction not to concern themselves with what punishment the juvenile might receive if convicted, and repeated that admonition in his charge right after the closing arguments. The judge also instructed the jury, before trial and in his final charge, that closing arguments are not evidence. “We presume that a jury follow all instructions given to it.” Commonwealth v. Watkins, 425 Mass. 830, 840 (1997).
4. Remaining claims. The juvenile also argues that: (1) the judge admitted other hearsay evidence in violation of the juvenile's constitutional confrontation rights; (2) the judge abused his discretion by refusing to admit reputation evidence that favored the juvenile; (3) the statute underlying the juvenile's conviction for a civil rights violation is unconstitutionally vague; (4) the trial judge improperly relied on the Western Avenue evidence at sentencing; and (5) the juvenile is entitled to a new trial on the basis of cumulative error. We reject these claims as well.
First, the juvenile challenges Detective Pohle's testimony concerning why the juvenile was charged after the police investigation. The testimony, however, was a general summary of Pohle's investigation and provided background information, such as the number of persons interviewed. In any case, rather than describe the evidence against the juvenile, Pohle simply indicated that he brought the charges against him based on “[a]ll the witness statements and all the statements from some of the other suspects, too.” This does not constitute hearsay evidence. Commonwealth v.. Cohen, 412 Mass. at 393;Commonwealth v. Philyaw, 55 Mass.App.Ct. 730, 732–733 (2002).
Second, the trial judge did not abuse his discretion in excluding the juvenile's proffered reputation evidence. He did so, properly we conclude, on the grounds that it did not reflect the juvenile's general reputation for peacefulness in the community because the sample size of the group said to be familiar with that reputation was too small. See Commonwealth v. Belton, 352 Mass. 263, 268–269 (1967); Commonwealth v. Arthur, 31 Mass.App.Ct. 178, 179–181 (1991).
Third, G.L. c. 265, § 37, is not unconstitutionally vague. See Commonwealth v. Stephens, 25 Mass.App.Ct. at 120–123. To the extent that the juvenile argues that the statute is overbroad, we conclude that it is not as applied to his case. In any event, the juvenile raises this claim for the first time on appeal. Cf. Commonwealth v. Bibby, 35 Mass.App.Ct. 938, 941–942 (1993), S.C. 417 Mass. 1101 (1994) (“We do not consider on appeal an issue which has not been put to the trial judge”).
Fourth, in our view, the judge's remarks indicate that the juvenile's sentence was a product of the nature of the offense and the circumstances of its commission, especially its viciousness and its effect on the victim. To the extent that the judge referred to the Western Avenue evidence, his doing so was not inappropriate. While a judge may not punish a defendant for uncharged misconduct, the sentence he imposes may take such conduct into account to the extent it bears on a defendant's character, behavior, background, and amenability to rehabilitation. Commonwealth v. Goodwin, 414 Mass. 88, 92–93 (1993); Commonwealth v. Keon K., 70 Mass.App.Ct. 568, 571–572 (2007). That is what happened here.
Finally, the juvenile's cumulative error argument is inapplicable in light of our conclusions above. Thus, there was no substantial risk of a miscarriage of justice. Contrast Commonwealth v. Cancel, 394 Mass. 567, 576 (1985) (unpreserved claims of error, although individually insufficient to require reversal of conviction, collectively operated to create substantial risk of miscarriage of justice).
Judgments affirmed.