Opinion
20-P-1243
04-27-2022
COMMONWEALTH v. Bruno LOPES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury found the defendant guilty of unlawful possession of a firearm, G. L. c. 269, § 10 (a ), and attempted assault and battery by discharging a firearm, G. L. c. 265, § 15F. The trial judge granted the defendant's postverdict motion for relief pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), finding that there was insufficient evidence that the defendant was one of two people captured on surveillance video footage shooting a firearm at a passing automobile. The Commonwealth appeals. We reverse the trial judge's order, reinstate the verdicts, and remand the case to the Superior Court where the original sentences are to be reinstated.
Background. We review the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Brennan, 74 Mass. App. Ct. 44, 44-45 (2009). On May 14, 2018, in the Temple Landing housing development in New Bedford, two pedestrians in a group of four shot firearms at a passing car. When police arrived at the scene, they found six spent .22 caliber shell casings. The police also retrieved surveillance video footage from Temple Landing.
The Temple Landing video footage of the shooting showed that each of the four men wore different clothing, though the faces of the men could not be identified in the video footage. The first shooter was wearing all black with white stripes running part way down his sweatpants. The second shooter was the only one of the four men wearing shorts. The second shooter was wearing a dark hooded sweatshirt (hoodie) with three white stripes running parallel down the sleeves and a white logo on the left breast (an Adidas jacket as one witness described it). The Commonwealth contends that the defendant was the second shooter. A third man in the group was wearing an orange shirt with ripped jeans. The fourth man was wearing a dark hoodie, a baseball cap, and either maroon or red sweatpants.
The investigation led to the police obtaining surveillance video footage from other area locations before the shooting. Video footage from 367 Rivet Street showed the same four men approach that address, enter the building, and then leave in a Bluebird taxicab. The face of the second shooter was sufficiently visible as he approached the building that the jury could see his complexion. The face of the first shooter was visible, as was the face of the third man, in the orange shirt. The face of the fourth man, in the maroon pants, was only partially visible as he was wearing a baseball cap and kept his hood raised. Still, the jury could see part of his face and his hands.
The taxicab driver testified that she could not remember what the four men were wearing. She did recall that the man who entered the front seat of her taxicab, who was dressed like the second shooter, was a dark-skinned male. His complexion was darker than the other three men. The man in the middle of the backseat was light skinned. The taxicab driver did not get a good look at the other two men in the backseat. She drove the four men to 78 Cedar Street, where all four men got out of the taxicab.
Video footage also showed the four men emerging from 78 Cedar Street shortly before the shooting and walking toward Middle Street. After viewing this video footage, a detective went to 78 Cedar Street and spoke to Miriam Oliveira. She testified that the defendant, who was her friend, and other men visited her home prior to the shooting. She testified that she did not remember what the defendant was wearing and that all the visitors were wearing black on the day of the shooting.
When the police questioned the defendant, he admitted to being at the scene of the shooting but denied being one of the shooters.
The jury found the defendant guilty on both counts. As indicated, after trial, the trial judge allowed the defendant's rule 25 motion and entered required findings of not guilty on both counts. In allowing the defendant's motion, the trial judge noted that there was no testimony at trial identifying the defendant as one of the men in the Rivet Street video footage, nor was there testimony identifying the defendant as one of the shooters in the Temple Landing video footage. The trial judge noted that there was no evidence of motive or intent, no recovered gun or forensic evidence, no evidence that the defendant owned the clothes depicted in any of the video footage or that anyone had seen him in those clothes on the day of the shooting, and no evidence of consciousness of guilt. The trial judge concluded that the Commonwealth's evidence at trial required the impermissible "inference piled upon an inference" to link the defendant to the shooting.
The defendant also moved for a required finding of not guilty at the close of the Commonwealth's case, which the trial judge denied. The defendant called one witness, rested, and renewed the motion, which the trial judge also denied.
Discussion. The Commonwealth argues that there was sufficient evidence adduced at trial to identify the defendant as the second shooter, where the evidence established that (1) he was one of a group of four men captured on video footage shooting at a car and (2) that he must have been the second shooter because he could not have been any of the other three men in the group. We agree.
In reviewing a ruling on a motion for a required finding of not guilty, we analyze the evidence in the light most favorable to the Commonwealth to determine whether sufficient evidence has been presented to permit the jury to find the existence of the essential elements of the crime charged beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). A conviction may be based entirely on circumstantial evidence as long as the inferences drawn are reasonable and possible. See Commonwealth v. Rakes, 478 Mass. 22, 32 (2017). The inferences permitted to be drawn from the evidence "must be ‘of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt’ " (citation omitted). Latimore, supra at 677. Evidence is not sufficient if it requires piling inference upon inference or requires conjecture and speculation. See Rakes, supra.
The defendant admitted that he was present at the scene of the shooting; thus, the question was whether the Commonwealth proved which of the four men he was. Based on the video footage and still photograph exhibits (visual evidence), the jury could compare the defendant's appearance in the courtroom and the appearance of the second shooter and consider that they were consistent. See Commonwealth v. Hobbs, 482 Mass. 538, 555 (2019) (recognizing that jury may be "capable of ‘viewing [a] videotape and drawing their own conclusions regarding whether the [individual] in the videotape was the defendant’ " [citation omitted]). Significantly, the jury also could compare the defendant's appearance with the other three men depicted in the visual evidence and exclude the possibility that the defendant was the first shooter, the man in the orange shirt, or the man in the maroon pants. In addition to what the jury could see, the jury could also have relied on the taxicab driver's testimony that the defendant's skin tone was darker than that of the other three men. Using this process of elimination, the jury could have found that the defendant was the man in the dark shorts and striped hoodie and therefore the second shooter. See Commonwealth v. Robinson, 30 Mass. App. Ct. 62, 72 (1991) ("the evidence was enough at the close of the Commonwealth's case so that the jury were not left to speculate as to the defendant's guilt" when process of elimination pointed to defendant as source of toxic amount of salt found in child's formula). Thus, while "there was no direct evidence of identification[,] ... the evidence was legally sufficient to permit the jury to infer that the defendant" was the second shooter. Commonwealth v. Brennan, 74 Mass. App. Ct. 44, 47-48 (2009).
The order allowing the defendant's motion for a required finding of not guilty is reversed, and the verdicts are reinstated. The case is remanded to the Superior Court where the original sentences are to be reinstated.
So ordered.
reversed and remanded