Opinion
19-P-218
05-20-2020
COMMONWEALTH v. JOSE MELO.
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
Following a jury trial in the Superior Court, the defendant, Jose Melo, was convicted of two counts of aggravated statutory rape of a child. On appeal, he contends that the evidence was insufficient to sustain his convictions, and that the judge abused his discretion in admitting DNA evidence at trial. We affirm.
The jury found the defendant not guilty on a third count of aggravated statutory rape of a child.
Background. The defendant was the landlord of the one-bedroom apartment rented by the victim's mother, a Sudanese immigrant. The victim, who was in sixth grade and was eleven years old at the time of trial, also lived in the apartment. The lease, which was admitted in evidence, listed the landlord as "Joe Melo," and also listed a telephone number for him. The lease also stated, in relevant part, "[f]or other maintenance or repair of the premises, the TENANT shall notify LANDLORD or Joe Melo," and then repeated the same telephone number. The victim's mother identified the landlord, who came to their apartment to fix things, as "Joe" and as "Joe Melo."
At trial, the victim described three incidents that occurred when she was between six and eight years old. The first incident occurred in the basement in the landlord's workshop. The victim detailed how the landlord had been in the apartment where she lived to repair a drawer. The defendant then brought her to the basement, placed her on a couch, pulled down her underwear, lifted her legs, and licked the "place" that she used "to pee." After the landlord stopped, he gave the victim five dollars, some highlighters, and some paper, and he brought her back upstairs. The victim noticed afterwards that the back of her underpants was "wet." The victim's mother testified that the victim told her what the landlord had done, and that he "had peed on [her] from the back." The victim's mother recognized the wet substance on the victim's underpants as semen. She testified that she did not go to the police because in her "traditions in Sudan, this has to be kept secret. And this is a scandal."
The victim also detailed the second and third incidents. The second incident occurred on Halloween in the bedroom the victim and her mother shared, and again involved the landlord licking the victim's private "area." The third incident, an anal rape, occurred the following year in a vacant apartment in the building. The victim's mother testified that the victim had disclosed these rapes to her as well. Once again, the victim's mother testified that she did not tell the police about the incidents because she viewed it as a scandal and due to her fear of the government. Subsequently, however, police officers were dispatched to the apartment, at which time the victim told an officer about the rapes. At trial, neither the victim nor her mother made an in-court identification of the defendant.
The defendant was acquitted of the aggravated statutory rape charge arising out of this incident.
Discussion. 1. Sufficiency of the evidence. In evaluating whether a motion for a required finding of not guilty was properly denied, the reviewing court "must consider whether, viewing the evidence in the light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "Circumstantial evidence is sufficient to find someone guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence need only be reasonable and possible; it need not be necessary or inescapable" (quotation and citation omitted). Commonwealth v. Grandison, 433 Mass. 135, 141 (2001).
Here, the defendant predicates his sufficiency challenge on the victim's failure to identify the defendant in the court room at trial. "The Commonwealth was required to prove that the defendant . . . was the same ['Joe' or landlord] named by [the victim] as her assailant." Commonwealth v. Coates, 89 Mass. App. Ct. 728, 731 (2016). See Commonwealth v. Koney, 421 Mass. 295, 301-302 (1995). "[B]ald identity of name without confirmatory facts or circumstances is insufficient to prove identity of person." Commonwealth v. Doe, 8 Mass. App. Ct. 297, 299 (1979). "It is not necessary that any one witness should distinctly swear that the defendant was the man, if the result of all the testimony, on comparison of all its details and particulars, should identify him as the offender." Id. at 300, quoting Commonwealth v. Cavanaugh, 7 Mass. App. Ct. 33, 36 (1979). See Coates, supra, quoting Lodge v. Congress Taxi Ass'n, 340 Mass. 570, 575 (1960) ("Although very slight evidence might have been enough, at least something more than identity of names was necessary").
Contrary to the defendant's claim, the evidence viewed in the light most favorable to the Commonwealth was sufficient to withstand a motion for a required finding of not guilty. At trial, the victim identified the perpetrator as "the landlord," whom she further described and identified as "Joe Melo." She also testified that she told her mother what had happened, and that it was the landlord who had raped her. The victim told the police that the landlord had raped her. Furthermore, the defendant admitted to the police that he was "Joe Melo," was the landlord, and was the person who had performed repairs at the victim's apartment, and that the basement workshop was his. During the investigation, the victim's mother directed an officer to a telephone list bearing the name "Joe," and the same telephone number listed in the lease appeared next to his name.
That the victim's mother did not recall showing the telephone list to the officer does not aid the defendant's cause. "To the extent that conflicting inferences may be drawn from the evidence, it is for the jury to decide which version to credit." Commonwealth v. Miranda, 458 Mass. 110, 113 (2010), cert. denied, 565 U.S. 1013 (2011).
In short, the evidence showed that the defendant, "Joe Melo," was the landlord of the apartment where the victim lived with her mother; that he fixed things in their apartment; and that he fixed a drawer in their apartment and lured the victim to his workshop in the basement. The defendant admitted and acknowledged that he was the landlord during the period of the alleged abuse, and his admissions corroborated certain details of the victim's and her mother's testimony. Finally, the presence of seminal fluid on the couch, identified by the victim as the location of the first rape, further corroborated the defendant's identity as the perpetrator. Accordingly, the jurors heard confirmatory facts and circumstances that established the identity of the defendant as the landlord, "Joe Melo," who committed the crimes. See Coates, 89 Mass. App. Ct. at 732 ("Presented with this circumstantial evidence, the jury could draw the inferences necessary to determine the identity of the defendant beyond a reasonable doubt"). See also Doe, 8 Mass. App. Ct. at 299-300.
Even without the admission of the DNA evidence taken from the seminal fluid found on the couch cushion, our conclusion would nevertheless be the same given the evidence identifying the defendant as the perpetrator of the crimes.
We note that the judge instructed the jury, in part, that "[i]n your evaluation of the evidence, you are entitled to consider the witness' failure to identify Mr. Melo as the alleged defendant."
2. DNA evidence. The judge did not abuse his discretion in admitting evidence that seminal fluid matching the defendant's DNA was found on a couch cushion in the defendant's workshop. As discussed above, the victim stated that the first rape occurred on the couch in the defendant's basement workshop. She further testified that after the incident, she felt something "wet" on her back. The victim's mother identified the wet substance as "semen." In light of this evidence, the presence of the defendant's semen on the couch cushion, at the location where the rape was alleged to have occurred, was relevant. See Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989). See also Commonwealth v. Sicari, 434 Mass. 732, 751 (2001) ("Such evidence connects him with the place, which in turn connects him to the crime that occurred there"). That the semen could have been deposited at a different time was a question of weight, not admissibility. See id. ("The probative value of the evidence is for the jury to decide after listening to cross-examination and the closing arguments of counsel").
Here, the judge heard arguments from both parties outside the presence of the jury, carefully balanced the probative value against the risk of prejudice, and ultimately determined that the probative value outweighed any prejudice. The judge noted that not only did the DNA evidence corroborate the victim's testimony, but "it also goes to the issue of identification, which has been and will continue to be an issue in this case." In addition, the defendant pursued a Bowden defense at trial, and argued that the Commonwealth rushed to judgment and failed to conduct a full and fair investigation. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Indeed, defense counsel focused his closing argument on this theme, and also sought and received a Bowden instruction from the judge. Therefore, the defendant's DNA match was also relevant to rebut the Bowden defense, and demonstrates that the Commonwealth did conduct a fair investigation, which included evidence retrieval and examination, followed by scientific testing. For all of these reasons, the judge did not abuse his discretion in admitting evidence of the DNA testing results. See Sicari, 434 Mass. at 752 ("In weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge's decision in this area unless it is palpably wrong").
We further note that the jury acquitted the defendant on one of the three counts of aggravated statutory rape. See Commonwealth v. Butler, 445 Mass. 568, 576 (2005).
In view of the testimony and corroborative information admitted at trial, apart from the DNA evidence, the defendant's reliance on Commonwealth v. Anitus, 93 Mass. App. Ct. 104, 107-109 (2018), is misplaced and unpersuasive.
Judgments affirmed.
By the Court (Green, C.J., Hanlon & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 20, 2020.