Opinion
09-P-798
12-28-2012
COMMONWEALTH v. RICHARD MELENDEZ.
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
This appeal concerns the convictions of the defendant after his third trial. Following an in-court disruption at the first, the defendant was declared not competent to stand trial. At the second trial, a jury found the defendant guilty of receiving a stolen motor vehicle, G. L. c. 266, § 28(a), but were unable to reach a verdict on the remaining thirteen counts. The judge declared a mistrial as to those thirteen charges. At the third trial, the defendant was convicted on the remaining thirteen charges. The defendant now appeals from those latter convictions.
Four counts of kidnapping, G. L. c. 265, § 26; four counts of armed robbery, G. L. c. 265, § 17; four counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b); and one count of home invasion, G. L. c. 265, § 18C.
The defendant did not file a notice of appeal from the conviction of receiving a stolen motor vehicle.
Discussion. 1. Jury questioning. The defendant first argues that jurors should have been questioned as to their potential bias or prejudice regarding rape. The defendant was not charged with rape but, because his codefendant was, evidence of the rape surfaced at trial to connect the defendant to the crime scene. 'The scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous.' Commonwealth v. Lopes, 440 Mass. 731, 736 (2004). In Lopes, the defendant was charged with a violent murder, yet the judge did not ask the prospective jurors whether they, or close family members, had been victims of violent crimes. Id. at 735. Although it 'would have been preferable had the judge asked the venire' such a question, '[t]here [was] nothing . . . to suggest that the judge committed reversible error by refusing to ask the requested question.' Id. at 737-738. Here, the evidence of rape was used solely to help identify the defendant as one of the intruders, and the judge informed the jury of this fact during his instructions. It was left to the judge's sound discretion whether to ask questions assessing the prejudice or bias of the potential jurors. Id. at 736. We cannot say the judge abused that discretion.
Jury questioning regarding some crimes is taken out of the judge's discretion. The Supreme Judicial Court has interpreted G. L. c. 234, § 28, to mandate that questions about bias or prejudice be asked in cases involving interracial murder, interracial rape, sexual offenses against minors, and use of the insanity defense. See Lopes, 440 Mass. at 737. Here, the rape by Carlos Vallejo was not interracial, so we do not concern ourselves with the mandate of G. L. c. 234, § 28.
2. Duplicative nature of assault and battery by means of a dangerous weapon and armed robbery. The defendant relied on Commonwealth v. Santos, 440 Mass. 281, 292-294 (2003), to argue that the underlying conduct of each crime was so inextricably linked that he could not be convicted of both crimes. After the briefs were filed, Santos was overruled by Commonwealth v. Anderson, 461 Mass. 616, 633 (2012). Therefore, because each crime required proof of an element the other did not, assault and battery by means of a dangerous weapon and armed robbery are not duplicative. See Commonwealth v. Wolinski, 431 Mass. 228, 238 (2000).
3. Double jeopardy and collateral estoppel. The defendant asserts that his conviction of receiving stolen property -- the Mercedes sport utility vehicle (SUV) -- at the second trial precluded the third trial altogether, based on the doctrines of double jeopardy and collateral estoppel. 'Massachusetts courts have, for well over a century, adhered to the principle that a defendant may not be tried and punished for both stealing and receiving the same property because convictions for stealing and receiving the same property would constitute legally inconsistent verdicts.' Commonwealth v. Gardner, 67 Mass. App. Ct. 744, 745-746 (2006) (prior conviction of receiving stolen property judicially estopped Commonwealth from prosecuting defendant for larceny of same property). Here, the defendant was charged with -- and convicted of -- receiving the stolen Mercedes in the second trial. But he was never charged with armed robbery as to the Mercedes SUV. The judge made this distinction clear at the second trial, instructing that the 'subject property with respect to the four armed robbery charges is not the black Mercedes SUV.' Rather, the four armed robbery charges, as indicated in the indictments, stemmed from the defendant's theft of money and jewelry from the four victims. Therefore, the conviction of receiving the stolen Mercedes is not 'legally inconsistent' with the convictions of armed robbery. Gardner, 67 Mass. App. Ct. at 746.
Furthermore, the defendant, relying on Ashe v. Swenson, 397 U.S. 436, 443 (1970), argues that the Commonwealth, in pursuing the third trial, was collaterally estopped by the second trial because the jury had already adjudicated the relevant facts. In Ashe, the Court held that '[o]nce a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the [defendant] was one of the robbers, the State could not present the same or different identification evidence in a second prosecution [involving any victim in the same incident] in the hope that a different jury might find that evidence more convincing.' Id. at 446. In Ashe, however, the defendant had been previously acquitted by a jury. Ibid. In this case, the judge declared a mistrial because the second trial jury were hung on the remaining thirteen charges. 'The jury's failure to reach a unanimous verdict is an example of manifest necessity.' Choy v. Commonwealth, 456 Mass. 146, 149 (2010). Double jeopardy does not result where the previous trial 'terminates in a mistrial due to 'manifest necessity." Ibid. Therefore, the third trial was not barred by the principles of collateral estoppel or double jeopardy.
4. Recorded telephone calls from prison. The defendant next contends that the judge committed prejudicial error by admitting long segments of the recorded telephone calls from prison in evidence. In a recent case, In the Matter of a Grand Jury Subpoena, 454 Mass. 685, 688 (2009), the Supreme Judicial Court concluded that 'where the sheriff's policy of monitoring and recording detainees' and inmates' telephone calls is preceded by notice to all parties and, further, where the recording and monitoring is justified by legitimate penological interests, no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.' Here, each telephone call placed by the defendant from MCI-Concord was preceded by a message informing all parties that the call was being recorded. The defendant did not have an expectation of privacy in the telephone calls, and his constitutional rights were not violated.
Nor was the defendant unduly prejudiced by the contents of the recordings. The defendant argues that the admission of the recorded calls had no probative value and served only to paint the defendant in a poor light because of the profane language and the constant reminder that the defendant was in prison. But the recordings had significant probative value. The Commonwealth offered the recordings to show the defendant's consciousness of guilt and to link the defendant to Carlos Vallejo. Thus, we conclude that the judge did not abuse his discretion in admitting the recorded calls. See Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998).
5. Show-up identification. The defendant claims that, contrary to the conclusion of the judge who heard his motion to suppress, the show-up identification was impermissibly suggestive because a police officer first informed the victim that the defendant was found in the stolen Mercedes. 'One-on-one identifications are generally disfavored because they are viewed as inherently suggestive.' Commonwealth v. Martin, 447 Mass. 274, 279 (2006). A one-on-one show-up identification, however, 'raises no due process concerns unless it is determined to be unnecessarily suggestive.' Commonwealth v. Austin, 421 Mass. 357, 361 (1995). The burden is on the defendant to show by a preponderance of evidence that the identification procedure was unnecessarily or impermissibly suggestive. Martin, supra at 279-280. In making such a determination, the court may consider 'whether good reason exists for the police to use a one-on-one identification procedure.' Austin, supra at 361.
Austin identified several factors where good reason might exist. They include 'the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track.' Id. at 362. These factors weigh against the defendant here. First, the police were investigating violent crimes of home invasion, armed robbery, assault and battery by means of a dangerous weapon, kidnapping, and rape, prompting a strong concern for public safety. See Commonwealth v. Phillips, 452 Mass. 617, 629 (2008). Next, the short duration between the crime and the identification allowed for efficient police investigation and prompt confirmation of the identity of the suspect. See ibid. A 'prompt confrontation yielding a negative result, besides freeing the innocent, informs the police that a possible predisposition on their part is or may be in error and releases them quickly to follow another track.' Commonwealth v. Barnett, 371 Mass. 87, 92 (1976), cert. denied, 429 U.S. 1049 (1977). In recognition of the importance of the above factors, '[s]howups of suspects to eyewitnesses of crimes have been regularly held permissible when conducted by the police promptly after the criminal event.' Commonwealth v. Bowden, 379 Mass. 472, 479 (1980) (upholding show-up identification conducted within two hours of crime), quoting from Barnett, supra. See Commonwealth v. Thompson, 427 Mass. 729, 735, cert. denied, 525 U.S. 1008 (1998) (show-up within one hour of crime upheld).
Although each case is fact-specific, see Austin, supra at 362, our courts have also upheld show-up identifications under similar circumstances. See Commonwealth v. Williams, 399 Mass. 60, 67 (1987) (police statement, 'I think we got the guys,' not impermissibly suggestive); Phillips, supra at 628-629 (detention of defendant in police wagon, handcuffed, and flanked by officers not unnecessarily suggestive). See also Commonwealth v. Leonardi, 413 Mass. 757, 762 (1992) (citing long list of Massachusetts cases with similar facts). 'A witness ordinarily expects to be asked to make an identification of someone who either fits the description of a suspect or is suspected to have been involved in the reported crime.' Phillips, supra at 628. Thus, the police officer informing the victim here that the defendant was found in the Mercedes did not make the identification unnecessarily suggestive. The motion judge did not err in denying the defendant's motion to suppress.
The defendant points to the judge's conclusion in the endorsement denying his motion to suppress: 'Although it would have been better if [the victim] were not advised that [the] defendant was arrested in the Mercedes [], this does not require suppression.' But the question is not whether a better avenue existed; the question is 'whether the police acted permissibly. The answer is not governed by the availability of another approach.' Martin, 447 Mass. at 280. See Leonardi, 413 Mass. at 761.
6. Identification instruction. The defendant's next argument contests the judge's instruction to the jury regarding identification of the defendant. The defendant did not object to the instructions at trial, so we review for a substantial risk of miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 293-295 (2002). The Supreme Judicial Court provided model instructions on identification in the appendix to Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979), but 'adherence to Rodriguez . . . need not be slavish.' Commonwealth v. Brewster, 46 Mass. App. Ct. 746, 751 n.4 (1999). As long as the jury charge, 'as a whole, adequately covers the issue,' failing to strictly follow the model instructions is not error. Commonwealth v. Cruz, 445 Mass. 589, 597 (2005), quoting from Commonwealth v. Daye, 411 Mass. 719, 739 (1992).
On reviewing the record, we conclude that the jury instructions 'adequately cover[ed] the issue.' Ibid. The judge twice informed the jury of the Commonwealth's burden to prove beyond a reasonable doubt that the defendant was the person who committed the offense. See Rodriguez, supra at 310. The judge also instructed the jury that one-on-one identifications must be scrutinized more carefully than group identifications. See id. at 311. He also listed several factors for the jury to consider in weighing the identification. See id. at 310. The judge instructed the jury that a witness's identification could be honest, but mistaken. See Commonwealth v. Pires, 453 Mass. 66, 71 (2009). Furthermore, the judge's instructions, by pointing to other evidence that may assist the jury in assessing the identification, did not constitute an 'improper incursion into the jury's role as sole arbiter of credibility.' Commonwealth v. Caramanica, 49 Mass. App. Ct. 376, 379-380 (2000). In sum, the jury instructions 'adequately cover[ed]' the identification issue, and any departures from the model instructions (in Rodriguez) did not create a substantial risk of miscarriage of justice.
These factors included the lighting conditions, the time elapsed between the crime and identification, the identifying witness's opportunity and capacity to view the defendant, and whether the identification stemmed from the witness's own memory.
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7. Hearsay and right to confrontation. Finally, the defendant claims that the admission of hearsay statements, including cellular telephone records, G. L. c. 209A documents, business certificates, and their accompanying affidavits, must lead to our granting a new trial. First, relying on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the defendant argues that cellular telephone records from Nextel and Verizon, as well as G. L. c. 209A documents and the business certificate, violated his right to confrontation. We disagree. 'Business and public records are generally admissible absent confrontation . . . because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial.' Melendez-Diaz, supra at 324. Moreover, 'a 's affidavit authenticating an official record is not testimonial for purposes of the confrontation clause.' Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904 (2010). The records questioned by the defendant fall squarely within either the public records exception or the business records exception to the hearsay rule. See G. L. c. 233, §§ 76, 78. Because they were not created 'for the purpose of establishing or proving some fact at trial,' they were not testimonial, and thus do not invoke the right to confrontation. Melendez-Diaz, supra.
Second, the defendant asserts that the only evidence linking the defendant to the codefendant was inadmissible hearsay. This evidence includes cellular telephone records showing calls placed by the defendant from the victim's telephone, a 'reverse look-up' of those phone numbers, a business certificate for Carlos Vallejo's company, the visitors' log at the house of correction, probation records of Carlos Vallejo, and the 'Inmate Calling List' from MCI- Concord. At trial, the detective testified how each piece of the above-listed evidence formed a link to the next, ultimately leading to the connection between the defendant and Carlos Vallejo. Relying on Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982) ('[E]vidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule'), the defendant argues that if one link in the chain was inadmissible hearsay, the connection to the codefendant fails. But the 'chain' referred to in Wingate refers to the chain of statements in totem pole hearsay, as evidenced by the citation to Fed. R. Evid. 805, concerning hearsay within hearsay. The 'chain' does not refer to the leads that the detective followed to form the link between the defendant and Carlos Vallejo. Therefore, the improper admission of one of the above-listed items would not invalidate the admissibility of the rest or eviscerate the link between the defendant and Carlos Vallejo.
In analyzing the admitted statements, we conclude that all were admissible through exceptions to the hearsay rule, with a single exception. The cellular telephone records are business records. The business certificate is a public record, and the town clerk has a statutory duty to index those records. See G. L. c. 110, § 5. Likewise, the visitors' log at the house of correction, the probation records, and the inmate calling list from MCI-Concord fall within the public records exception. Admission of testimony regarding the reverse phone number look-up was not covered by any exception to the hearsay rule. As discussed above, however, the improper admission of this testimony does not cause all the links in the chain between the defendant and Carlos Vallejo to fall with it. The properly admitted evidence still linked the defendant to Carlos Vallejo, and the improperly admitted evidence of a single link was ultimately of little significance.
In any event, even if the hearsay evidence had been of some significance, it would still have been harmless because of the other overwhelming evidence against the defendant. See Commonwealth v. Lodge, 431 Mass. 461, 471 (2000); Commonwealth v. Perez, 460 Mass. 683, 694-695 (2011); Commonwealth v. Blake, 52 Mass. App. Ct. 526, 528-529 (2001). Specifically, the defendant was arrested in the stolen Mercedes SUV while in possession of a victim's cellular telephone, and the defendant was identified by another victim soon after the crime. Such strong evidence renders any potential minor error insubstantial.
Judgments affirmed.
By the Court (Kafker, Cohen & Trainor, JJ.), Clerk