Opinion
14-P-23
05-15-2015
COMMONWEALTH v. ROBERT MILLS.
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
The defendant, Robert Mills, appeals from his convictions on two counts of improper sale of a firearm, under G. L. c. 140, § 128. He contends that the trial judge committed prejudicial error by (1) admitting hearsay evidence, (2) excluding significant evidence regarding the defendant's Bowden defense, and (3) considering the penalty for an offense the defendant was not convicted of during sentencing.
1. Hearsay evidence. The defendant argues that Trooper Greg DesFosses' testimony regarding Linda Ricciardelli's statements about the defendant should not have been admitted under the joint venture exception to the hearsay rule because the statements were made after the joint venture had ended. The defendant properly preserved this issue by objecting to the admission of the evidence as inadmissible hearsay. See Commonwealth v. Carriere, 470 Mass. 1, 7-8 (2014). "Where the error was preserved, we review for prejudicial error and consider whether there is a reasonable possibility that the error might have contributed to the jury's verdict." Ibid. Reversal is not necessary if the error "did not influence the jury, or had but very slight effect." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
"Out-of-court statements by joint venturers are admissible against the others if the statements are made during the pendency of the criminal enterprise and in furtherance of it." Commonwealth v. Burton, 450 Mass. 55, 63 (2007). The inquiry to determine if a statement is made during the pendency of the joint venture "focuses not on whether the crime has been completed, but on whether a joint venture was continuing." Commonwealth v. Stewart, 454 Mass. 527, 537 (2009).
The judge did not abuse his discretion in determining that the statements concerned the furtherance of the joint venture. See Commonwealth v. Anderson, 445 Mass. 195, 211 (2005) (holding statements "planning the joint venture" as independently admissible). Two weeks prior to the statements, Ricciardelli sold a .45 caliber handgun to Trooper DesFosses, an undercover officer, for the recited purpose of robbing a drug dealer. The statements were made by Ricciardelli during the negotiations for a second firearm sale to Trooper DesFosses for a similar recited purpose. Trooper DesFosses testified that Ricciardelli stated that "her guy could not provide two firearms but . . . could provide one big one" and she "reassured" Trooper DesFosses that he "was in good hands in terms of purchasing the firearms from her through Bobby."
Thus, these statements are unequivocally a part of a continuing joint venture in which Ricciardelli would obtain guns from the defendant for sale to Trooper DesFosses. See ibid.; Stewart, 454 Mass. at 534-536. Moreover, even if the statements were improperly admitted, Trooper DesFosses testimony caused no prejudice because Ricciardelli's later testimony to substantially the same account rendered it to be duplicative. See Commonwealth v. O'Connor, 407 Mass. 663, 670 (1990) (no prejudicial error where hearsay statements were duplicative of testimony properly in evidence).
2. Bowden defense. The defendant further asserts that the trial judge improperly limited his defense under Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). "A defendant may invoke a Bowden defense to suggest that police failed to investigate other potential suspects and a third-party culprit defense to suggest that those other suspects actually committed the crime charged." Commonwealth v. Fitzpatrick, 463 Mass. 581, 597 (2012). A decision to exclude such evidence is reversed only for "palpable error." Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).
The judge in this case did not improperly preclude the defendant from introducing any evidence pursuant to a Bowden defense. The judge afforded defense counsel wide latitude to introduce third-party culprits and expose purported inadequacies in the police investigation. See Fitzpatrick, 463 Mass. at 597-598. The trial judge properly excluded the DEA investigation's operational plan because the evidence was hearsay and could not be verified by the author's personal knowledge. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 804 (2009) (properly excluding unknown informant's tip of possible third-party culprit in part because "the 'word on the street' carries no indicia of reliability by itself").
Moreover, the evidence had no bearing on identifying a third-party culprit as Ricciardelli's gun supplier, but rather identified another individual as a potential drug supplier, a charge of which the defendant was acquitted. See Commonwealth v. Bizanowicz, 459 Mass. 400, 418-19 (2011) (properly excluding evidence "not even close" to identifying a third-party culprit). We conclude that there was no abuse of discretion.
3. Sentencing. The defendant's final argument is that the trial judge improperly considered the statutory minimum sentence for unlawful possession of a firearm under G. L. c. 269, § 10(a) when the defendant was being sentenced on two counts of improper sale of a firearm. The trial judge noted that unlawful possession of a firearm carrying a lesser penalty than the improper sale of a firearm was a "real anomaly" in the law because an individual generally possesses a firearm before they sell it. This statement, however, did not impact the trial judge's ultimate determination regarding sentencing.
Before imposing the sentence, the trial judge stated that it was being made independent of the penalty for unlawful possession of a firearm. The trial judge properly imposed the sentence based on the defendant's extensive criminal record. See Commonwealth v. Morse, 402 Mass. 735, 739 (1988) (recognizing judge's consideration of defendant's criminal record at sentencing as appropriate). Thus, there was no error. See Commonwealth v. Jones, 71 Mass. App. Ct. 568, 576 (2008) (sentencing "rooted in appropriate factors" was not improper).
4. Conclusion. For the reasons articulated above, we affirm the defendant's convictions and sentences on the two counts of improper sale of a firearm.
Judgments affirmed.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 15, 2015.