Opinion
13-P-1132
08-25-2015
COMMONWEALTH v. SAHR JOSIAH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of armed robbery, armed assault with intent to murder, armed assault on a person sixty years of age or older, unlicensed possession of a firearm, assault and battery by means of a dangerous weapon, and two counts of assault by means of a dangerous weapon. He appeals, arguing that evidence was wrongly admitted, causing prejudicial error, and that the Commonwealth failed to meet its burden of proving the identity of the person who committed the crimes. We affirm.
Background. The jury could have found the following facts. On April 14, 2009, after calling Tommy's Taxi for a taxicab to be dispatched to a random address in Framingham, the defendant and another man robbed the responding taxi driver, Leon Wilson, at gunpoint, taking his keys, his cellular telephone (cell phone), and about fifty dollars in small bills. A third member of the group kept watch on the street corner a short distance away. Afterwards, the defendant and his companion ran away and the three reunited a distance away.
Police officers arrived at the scene in response to Wilson's emergency call; after speaking with Wilson, Officer John Norton transmitted on the police radio a description of the individuals involved in the robbery and the direction they were traveling. Officer Timothy O'Toole also spoke with Wilson at the scene, and based on the information he received, drove his police cruiser in pursuit of the suspects.
Norton broadcast the following description: "two black males, both between the ages of 18 and 22, approximately five foot eight to five foot ten inches tall, one of them wearing a gray, hoodie sweatshirt and the other one wearing a dark-colored, hoodie sweatshirt"; the suspects "were last seen crossing Irving Street turning onto South Street." While Norton was still at Alexander Street, a citizen witness, Claudiano Barreto, stopped and told Norton that he had seen the suspects on East Street crossing Blandin Avenue; Norton then relayed that information as well.
A short time later, O'Toole and Sergeant Philip Hurton, who also responded to the radio broadcast, came upon the defendant in a parking lot. They followed him for a distance and then stopped and chased him on foot down a dark, unpaved alley about 100 feet long. Hurton was approximately twenty feet behind the defendant; O'Toole was approximately ten to fifteen feet behind Hurton.
The alley was "extremely dark," and shortly after he entered it, O'Toole lost sight of Hurton and the defendant. He then heard two or three gunshots. Hurton had been following the defendant, yelling for him to stop and keeping him in view until the defendant ran around a corner. Hurton, whose weapon was not drawn, was negotiating his way through an obstruction on the ground when the defendant, whom he had been chasing, came back around the corner and shot at him from five to eight feet away. Hurton saw a muzzle flash, put his hands up to his face, and then felt pain in his face and hands. He couldn't say exactly how many shots were fired, but he knew it was "more than two." He then moved backwards and, bleeding and with gunshot wounds, went back in the direction he had come from, encountering O'Toole in the alley.
Both officers retreated to their parked cruisers. There was a great deal of blood, and because of the severity of Hurton's injuries, O'Toole requested a medical helicopter before attending to Hurton's injuries himself. Hurton told O'Toole that "he did not want to bleed out there" in the parking lot. In court, Hurton identified the defendant as the man who had shot him.
Afterwards, two other officers, Sergeant Richard Pomales and Officer Dinis Avila, saw the defendant in a truck parking lot. The defendant shot at the officers several times, breaking a window of their police cruiser; he was then able to escape. Officer John Tasker, along with his tracking dog, located the defendant's discarded clothing in a nearby parking lot. He also saw the defendant in the brush bordering the yard, wearing only a T-shirt and shorts; the defendant ran away again. After another chase, officers were able to surround the defendant and arrest him. They found Wilson's cell phone and a live round of ammunition in the defendant's pocket at the time of his arrest.
Officers found a gray hooded sweatshirt, jeans, and a black "do-rag"; inside the discarded clothing, police found fifty-one dollars in cash and a set of the defendant's keys.
The next day, while investigating the various crime scenes, officers discovered the defendant's Glock .40 caliber pistol and live ammunition hidden near where the defendant had been arrested. Empty .40 caliber cartridges were found in the areas where Hurton was shot and in the parking lot where the defendant had fired at Pomales and Avila. At trial, State police Sergeant David Cahill opined to a reasonable degree of ballistic certainty that the recovered discharged casings were fired from the defendant's gun. In addition, Adidas sneaker prints were found in the yard where the gun was found and in the alley where Hurton was shot; the defendant was wearing Adidas sneakers when he was arrested.
Discussion. Expert ballistics testimony. The defendant first contends that the judge erred in allowing Cahill's testimony that the various empty cartridges retrieved from the crime scene matched the two cartridge casings test-fired from the defendant's gun, arguing that adequate documentation of the findings or observations that supported Cahill's opinion was not provided.
Prior to its admission, the judge must "ensure that expert forensic ballistics testimony appropriately assists the jury in finding the facts but does not mislead by reaching beyond its scientific grasp." Commonwealth v. Pytou Heang, 458 Mass. 827, 846-847 (2011). To accomplish this, the proponent of the evidence must meet three specific criteria. When the criteria are met, "a jury will be assisted in reaching a verdict by having the benefit of the opinion, as well as the information needed to evaluate the limitations of such an opinion and the weight it deserves." Id. at 850.
"First, before trial, the examiner must adequately document the findings or observations that support the examiner's ultimate opinion, and this documentary evidence, whether in the form of measurements, notes, sketches, or photographs, shall be provided in discovery, so that defense counsel will have an adequate and informed basis to cross-examine the forensic ballistics expert at trial. . . . Second, before an opinion is offered at trial, a forensic ballistics expert should explain to the jury the theories and methodologies underlying the field of forensic ballistics. . . . Third, in the absence of special circumstances casting doubt on the reliability of an opinion, and once these two things have been done, a forensic ballistics expert may present an expert's opinion of the toolmarks found on projectiles and cartridge casings . . . . [T]he expert may offer that opinion to a 'reasonable degree of ballistic certainty.'" Commonwealth v. Pytou Heang, supra at 847-848.
Here, there is no dispute that defense counsel was provided with adequate documentation during discovery and prior to trial. Part of that discovery was a photograph taken by Sergeant Cahill during the ballistic examination that depicts the microscopic comparison of one of the seven cartridge casings found at the crime scene, and one of the two cartridges test-fired from the defendant's gun. That photograph was admitted as an exhibit at trial.
At trial, Cahill testified at length regarding the methodology underlying the field of forensic ballistics and the differences between the separate classes of characteristic toolmarks on bullet casings. He also testified that, following protocol, he took only one photograph of the microscopic comparison of the cartridges, but in fact, each of the remaining six cartridges were likewise examined under the microscope and compared with the test-fired cartridge; during that examination, Cahill observed that each of those six cartridges "possessed the same class or individual characteristics" as those depicted in the photograph admitted as an exhibit. He then opined to a "[d]egree of ballistic certainty that those cartridge cases were fired by the recovered Glock, Model 22, semiautomatic pistol" based on "[t]he toolmarks left behind on the evidence versus the toolmarks from the test fires." That testimony, taken as a whole, clearly met the criteria outlined in Pytou Heang and, as a result, the judge did not abuse her discretion in permitting Cahill to testify to his opinion. See Commonwealth v. Pytou Heang, supra.
Admissibility of other evidence. The defendant next argues that the judge erred in allowing, over objection, O'Toole to testify about Hurton's statement, after he was shot, that he "did not want to bleed out" at the scene. The defendant contends that the statement was not relevant to the case, and prejudicial to the defendant.
The judge excluded testimony about Hurton's further request to tell his wife that he loved her.
"The weighing of probative value versus prejudicial effect of evidence in the context of a trial is an issue left particularly to the discretion of the trial judge." Commonwealth v. Rosa, 468 Mass. 231, 242 (2014). That determination is "not disturbed absent palpable error." Commonwealth v. Spencer, 465 Mass. 32, 48 (2013), quoting from Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010).
In this case, the defendant was being tried for, among other things, armed assault on Hurton with intent to murder him. For the Commonwealth to prove that the defendant committed this offense, it was required to prove "that the defendant possessed the specific actual intent to cause the death of Officer Hurton." See Model Jury Instructions for Use in the District Court, Instructions 3.120 (specific intent); 6.120 (assault); 7.680 (carrying dangerous weapon) (2009).
Hurton's statement that he "did not want to bleed out there" had some probative value, indicating the seriousness of his injuries. O'Toole's testimony as to how he tended to Hurton's wounds and his request for a medical helicopter also illustrated the officers' concern about the severity of Hurton's injuries, further supporting the allegation that the defendant intended to murder him. "Taking all relevant factors into account, the judge could permissibly deem [O'Toole]'s testimony repeating [Hurton]'s statement admissible." Commonwealth v. Whitney, 63 Mass. App. Ct. 351, 360 (2005). In addition, the judge gave a limiting instruction immediately prior to O'Toole's testimony, cautioning the jurors to "put aside any feelings of sympathy or any other feelings or emotions" and to "decide the case solely based on the evidence." Finally, even if it were error to admit the statement, which we do not decide, any error was harmless.
Motion for required findings of not guilty. The defendant also argues that the judge erred when she denied his motion for required findings of not guilty. In his view, the Commonwealth failed to present sufficient evidence of the defendant's identity as the person who committed each and every offense.
"In reviewing the denial of a motion for required finding of not guilty, we examine the evidence presented by the Commonwealth and consider whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Oyewole, 84 Mass. App. Ct. 669, 672 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Here, the eyewitness and circumstantial evidence combined to present strong evidence that the defendant committed the crimes charged.
First, the witnesses gave consistent descriptions of the defendant throughout -- a black male, approximately five feet, ten inches tall, wearing a gray hooded sweatshirt and blue jeans. Wilson gave that description to the police immediately after the robbery and it was broadcast over the police radio. Hurton was only from five to eight feet away from the defendant when he was shot, and he testified that the defendant was wearing the clothing described; he also identified the defendant as the man who had shot him. Pomales testified that he identified the defendant in a truck lot before the defendant shot several times at Aviles's cruiser. A discarded gray hooded sweatshirt and jeans, with fifty-one dollars and the defendant's keys in the pocket, were found by the tracking dog near where the defendant was seen wearing only a T-shirt and shorts. At the time of the defendant was arrested, a .40 caliber bullet was found in the defendant's pocket, along with Wilson's cell phone. There also was gunpowder residue on the defendant's hands.
The defendant also fails to acknowledge the testimony of Emanuel Aguilar, the defendant's accomplice in some of the crimes. Aguilar testified as to the defendant's possession of a firearm and his actions prior to the robbery and subsequent shootings; this was corroborated by Aguilar's girl friend, a neighbor, and several others with whom the defendant had interacted prior to the incident. Viewing the evidence in the light most favorable to the Commonwealth, and all permissible inferences drawn therefrom, and taking into account "that the 'weight and credibility of the evidence is the province of the jury,'" we are satisfied that the evidence that identified the defendant as the perpetrator of all of the crimes charged was sufficient to sustain the convictions. Commonwealth v. Sylvia, 456 Mass. at 191, quoting from Commonwealth v. Gomez, 450 Mass. 704, 711 (2008).
Aguilar testified pursuant to a plea agreement.
Judgments affirmed.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 25, 2015.