Opinion
10-P-1227
01-13-2012
COMMONWEALTH v. DAVID McCUE (and three companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On December 18, 2008, the defendants, David McCue and Michael Stewart, were each convicted of breaking and entering a dwelling in the daytime with intent to commit a felony therein, in violation of G. L. c. 266, § 18, and larceny from a building, in violation of G. L. c. 266, § 20. McCue was convicted as the principal perpetrator and Stewart was convicted as a joint venturer. The convictions stemmed from evidence identifying the defendants as the perpetrators of a breaking and entering of a house in Manchester-by-the-Sea (Manchester) and the theft of various items therein.
Motions to suppress. McCue filed a motion to suppress physical evidence obtained as a result of the warrantless search of his motor vehicle on May 24, 2007, which was denied by the motion judge on February 11, 2008.
The same judge granted a motion by Stewart to suppress evidence that was obtained as a result of his warrantless arrest on May 24, 2007. This evidence included a booking photograph of Stewart taken after his arrest and a subsequent eyewitness identification initially believed to have been made using the same May 24 booking photograph. The Commonwealth did not appeal the allowance of Stewart's motion to suppress, but later filed a notice of intent to introduce in evidence the results of the eyewitness identification on the grounds that the photograph used in fact was not the one from Stewart's arrest, but rather was a booking photograph of Stewart from a prior incarceration. The Commonwealth also argued that the identification was made using information that was voluntarily given by Stewart to law enforcement prior to his arrest, specifically his own name, and that it therefore was not a fruit of the unlawful arrest. The judge reconsidered the motion to suppress the witness identification and allowed the Commonwealth to present evidence of the identification at trial.
Both defendants filed timely notices of appeal from their convictions. McCue argues that (1) physical evidence admitted at trial that was obtained from a warrantless search of his car constituted prejudicial error, (2) police testimony identifying McCue and Stewart from a videotape that was not entered in evidence constituted prejudicial error, and (3) defense counsel's failure to object to improper language used in a jury instruction on identification constituted ineffective assistance of counsel, and resulted in a substantial risk of a miscarriage of justice. McCue argues for reversal on all three grounds.
Stewart argues that (1) his identification by a neighbor who witnessed the break-in was the fruit of an unlawful arrest and should have been suppressed, (2) the trial judge, who was also the motion judge, should have allowed Stewart's motion for a required finding of not guilty, and (3) the judge's use of improper language in his jury instruction on assessing the eyewitness identification created a substantial risk of miscarriage of justice. Stewart argues for reversal on all three grounds.
We affirm the judgments as to both McCue and Stewart.
Discussion. As each defendant argues that both prejudicial error and a substantial risk of miscarriage of justice occurred at trial, we review both standards here and apply each where appropriate. ,
The test for prejudicial error has two parts: '(1) was there error; and (2) if so, was that error prejudicial. An error is not prejudicial if it ' did not influence the jury, or had but very slight effect'; however, if we cannot find 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,' then it is prejudicial.' Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
To determine whether a substantial risk of a miscarriage of justice has occurred, 'we consider the strength of the Commonwealth's case to determine whether the outcome of the trial might have been different had the error not been made.' Commonwealth v. King, 460 Mass. 80, 85 (2011) (quotation omitted). 'We ask whether there was error; whether the defendant was prejudiced thereby; whether, in the context of the entire trial, it is reasonable to conclude that the error materially affected the verdict; and [in the case of an ineffective assistance of counsel allegation] whether counsel's failure to object or raise a claim of error was a reasonable tactical decision.' Ibid. Relief on this standard requires an affirmative answer to each of these questions. Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).
McCue argues that the evidence obtained pursuant to the warrantless search of his vehicle was unconstitutional under the Fourth and Fourteenth Amendments to the United States Constitution and under art. 14 of the Massachusetts Declaration of Rights, and that the search constituted prejudicial error requiring reversal. We disagree because we have determined that the motion to suppress was properly denied.
'[W]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle.' Commonwealth v. Eggleston, 453 Mass. 554, 557 (2009), quoting from Commonwealth v. Motta, 424 Mass. 117, 124 (1997). See Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). '[T]his principle applies even when the police had ample opportunity to obtain a search warrant, provided that there has been no unreasonable delay.' Eggleston, supra at 554. Unreasonable delay may exist 'if the police as an objective matter have no reasonable basis to expect that delay would produce any additional benefit. On the other hand, a reasonable period to further the investigation may be permissible to corroborate information received; because of an expectation that additional evidence will subsequently be located in the automobile; or in anticipation that the suspect or another will commit additional criminal acts.' Id. at 559.
Here, the probable cause to search McCue's vehicle was obtained on May 21, 2007, when the Manchester police received a license plate number and a description of a 'blue Olds Alero' from Michael Marino, an eyewitness to the break-in. The information the Manchester police received from Marino on May 21 was enough to create 'probable cause to believe that the automobile seized was involved in the incident and therefore was likely to contain or otherwise provide evidence of the crimes.' Commonwealth v. Street, 56 Mass. App. Ct. 301, 304 (2002). The search was therefore permissible under the automobile exception. Furthermore, here there was no 'unreasonable delay' in the time between Marino's tip and the search of the car on May 24. Manchester police Sergeant Fitzgerald worked with the Boston police to intercept McCue during his visit to his probation officer on May 24 after obtaining highly reliable information that McCue would be in that specific place on that specific day. There is nothing in the record to suggest that McCue's scheduled visit to Boston was anything other than Fitzgerald's first and best opportunity to conduct the search of the Alero. There was no unreasonable delay here between the advent of probable cause and the search of the vehicle.
In Commonwealth v. Street, 56 Mass. App. Ct. at 304, no unreasonable delay was found when the search took place a full day after the police had located the vehicle and had probable cause to search it. In that case, as here, the car was searched on the third day after the crime was committed. Ibid.
Although the search here was permissible under the automobile exception, it would also be valid as an inventory search because 'there was no practical available alternative to towing,' Commonwealth v. Ellerbe, 430 Mass. 769, 772-777 (2000), and the officers conducted the inventory search pursuant to the Boston police inventory policy. An alternative disposition of the vehicle was not required where the car was illegally parked, where there was no evidence that McCue, who was under arrest at the time of the impoundment, requested an alternative disposition, and where the passenger, Stewart, told police that he did not have a driver's license. See id. at 770; Commonwealth v. Eddington, 459 Mass. 102, 108-111 (2011).
McCue argues that Fitzgerald's testimony at trial that he observed the defendants on a surveillance videotape he viewed at the Cash for Gold pawn shop was erroneously admitted. We agree and conclude that Fitzgerald's lay opinion testimony should not have been admitted where a copy of the videotape was not retained by the police, and where the videotape had been 'taped over' before the trial began.
Lay testimony from a police officer identifying a defendant from a videotape or photograph has been upheld as properly admitted in certain circumstances. See Commonwealth v. Vitello, 376 Mass. 426, 459-460 & n.29 (1978); Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 328-329 (2000). In each of these cases, however, the jury had the benefit of their own examination of the photographic document, and were able to weigh the lay identification testimony against their own interpretation of the images in evidence. In Pleas, supra at 329, an officer was permitted to testify to the identity of an individual appearing in admitted videotaped surveillance images because we held that the officer's 'testimony could be helpful to the jurors, who, of course, still had before them the videotape and the still prints made from it.' Pleas and Vitello do not stand for the proposition that a lay witness can properly testify to the identity of individuals in a videotape recording that is not accessible by the jury.
In Pleas, 49 Mass. App. Ct. at 328, the officer's testimony was 'helpful' in part because he 'had long familiarity with the defendant that enabled him to identify an indistinct picture of the defendant.' Similarly, in Vitello, 376 Mass. at 459-460, the testimony of a police officer that a photograph depicted the defendant was admissible because the officer was familiar with the defendant's appearance on the date of the offense.
Even if the testimony should not have been admitted, Fitzgerald's testimony about what he saw on the surveillance tape ultimately did not unduly prejudice the defendants because we are able to conclude 'with fair assurance' that any error in its admission 'did not substantially sway' the jury to convict McCue and Stewart. Commonwealth v. Rodriguez, 457 Mass. 461, 477 (2010), quoting from Commonwealth v. Rosado, 428 Mass. 76, 80 (1980). Here, not only was there independent eyewitness testimony placing McCue and Stewart at the scene of the crime, the owner of the pawn shop himself testified at trial that McCue and Stewart were the men who sold him the items on May 21, 2007. 'Here, the ' overwhelming' strength of the independent, properly admitted evidence assures us that the guilty verdict in this case was not attributable to the error.' Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 710 (2011) (quotation omitted).
McCue next argues that defense counsel's failure to object to improper language used in the jury instruction on identification constituted ineffective assistance of counsel, and resulted in a substantial risk of a miscarriage of justice. Stewart's argument regarding the instruction is slightly different, in that he eschews the ineffectiveness angle and argues that the instruction itself created reversible error. The offending language was the judge's instruction that the jury could 'consider the length of time that elapsed between the occurrence of the crime and the next opportunity of the witness to see the defendant as a factor bearing on the reliability of the identification.' The instruction was indeed improper. See Commonwealth v. Hallet, 427 Mass. 552, 558 (1998). Although the instruction was incorrectly given, the 'use of the 'next opportunity' language [does] not alone create a substantial risk of a miscarriage of justice.' Ibid. For these and substantially the reasons set forth in the Commonwealth's brief at pages 43 through 45, we hold that no substantial risk of a miscarriage of justice resulted from the instruction, nor did a lack of an objection to the instruction as given constitute ineffective assistance of counsel.
The pretrial identification of Stewart by eyewitness Marino was not the product of Stewart's unlawful arrest, and was properly admitted. The judge was correct in allowing the initial motion to suppress the evidence collected after Stewart's arrest as fruit of the poisonous tree. See Commonwealth v. Marquez, 434 Mass. 370, 379 (2001). However, the judge was also correct in later admitting the identification evidence yielded from the photographic array shown to Marino, after it was revealed that Marino identified Stewart not by his booking photograph from the unlawful arrest, but rather by a photograph from Stewart's prior incarceration at Massachusetts Correctional Institution at Concord (Concord). Stewart argues that the identification stemming from the Concord photograph was itself inadmissible because the Manchester police did not learn Stewart's name until after the arrest. However, since (1) the Boston police had learned Stewart's name prior to his arrest, and (2) the Boston and Manchester police departments were 'engaged in a cooperative effort,' the doctrine of imputed knowledge treats the fact of Stewart's name as known to both departments. Commonwealth v. Ballou, 350 Mass. 751, 757 (1966). As a result, Marino's identification of Stewart was untainted by the unlawful arrest and was properly admitted.
Finally, we hold that the judge properly denied Stewart's motion for a required finding of not guilty on both offenses for which he was charged. There was ample evidence that Stewart was present at the scene of the crime and acted with knowledge and intent to assist in the commission of the crime. See Commonwealth v. Fuentes, 45 Mass. App. Ct. 934, 935 (1998); Commonwealth v. Batista, 53 Mass. App. Ct. 642, 646 (2002). Stewart's presence and position in the vehicle during the short window in which the crime occurred suggested that he 'was stationed in a position where he might render aid and encouragement, [or] as a lookout to give warning.' Commonwealth v. Pope, 15 Mass. App. Ct. 505, 510-511 (1983). Furthermore, compelling evidence of Stewart's efforts on May 21 to sell the items stolen earlier in the day constitutes a major 'plus factor' that cuts deeply against any theory that Stewart's involvement in the crime was one of 'presence alone.' Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 149 (1999). See Commonwealth v. Gonzalez, 452 Mass. 142, 147 (2008). The evidence here was sufficient to convict Stewart on both charges.
Judgments affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),