Opinion
14-P-1091
05-11-2015
COMMONWEALTH v. RUBEN MULLER.
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
After a jury trial in Superior Court, the defendant was convicted of armed robbery. On appeal, we affirm.
Shortly after midnight on April 7, 2011, a man wielding a knife robbed a convenience store at a Sunoco gas station in Webster. The Commonwealth's key witness linking the defendant to the robbery was Rebecca Anthony, who lived at the North Village Apartments not far from the Sunoco station. At the time of the robbery, Anthony was the girlfriend of the defendant's cousin, Ruben Hernandez. According to Anthony, the defendant -- after arriving at her apartment at approximately 12:30 midnight "out of breath from running" -- told her that "he had just robbed the Sunoco station up at the top of the street." In her testimony, Anthony provided various details about what the defendant was wearing (e.g., a black, puffy coat), the knife and denominations of cash he had on him, and what he did after Hernandez returned (off to buy crack cocaine). Anthony acknowledged that her initial motivation for contacting the police was to try to curry favor with them with respect to getting Hernandez released from incarceration for a parole violation. She also acknowledged that she came forward only after viewing a police web site, which set forth some of the details regarding the robbery.
Hernandez fled to Maine to try to avoid arrest on an unrelated probation violation, but was captured and incarcerated there while awaiting extradition. It was during that period that Anthony told police that the defendant had robbed the Sunoco station.
Impeachment of defense witness. Hernandez testified that Anthony simply fabricated her story about the defendant's being involved in the robbery (as part of her effort to secure favorable treatment for him). On cross-examination, the prosecutor pursued a brief line of questioning that highlighted Hernandez's failure to come forward sooner to dispute Anthony's claims. At the very beginning of this line of questioning, the defendant posed a general objection, which was overruled. No further objections were lodged, and the defendant never explained why he initially had objected. The defendant's claim that this form of impeachment was improper was not adequately preserved. See Commonwealth v. Bonds, 445 Mass. 821, 828 (2006). See also Mass. G. Evid. § 103(a)(1) (2014) (noting that parties should state the basis for an objection with specificity).
In any event, the Commonwealth had laid the three-part foundation required to be able to assert that it "would have been natural" for Hernandez to have come forward sooner. Commonwealth v. Brown, 11 Mass. App. Ct. 288, 295 (1981). See Commonwealth v. Horne, 466 Mass. 440, 447-448 (2013). The fact that Hernandez himself was originally a suspect in the robbery does not aid the defendant's cause, as Hernandez's coming forward at an earlier point to rebut Anthony's claims would not have implicated Hernandez. Contrast Commonwealth v. Rivers, 21 Mass. App. Ct. 645, 648-649 (1986). We discern no error, much less a substantial risk of a miscarriage of justice.
We note that when the police sought to interview Hernandez while he was incarcerated on the parole violation, he agreed to speak with them.
Dog evidence. There was unobjected-to testimony regarding a human scent trail that a trained police dog had detected some twenty minutes after the robbery. According to this testimony, the trail ran from a restaurant parking lot across the street from the Sunoco station (the location that the dog's handler had been informed was where the robber last had been observed) to a location near the North Village Apartments where Anthony lived (and where the defendant had been staying). On appeal, the defendant argues that the dog evidence was irrelevant and therefore never should have been admitted, and that it nevertheless could have unduly swayed the jury by giving an aura of scientific certainty to the police investigation.
As the defendant highlights, it was never firmly established that the scent that the dog picked up was that of the robber's and, in any event, it was uncontested that hundreds of people lived in the North Village Apartments (an area that a police witness acknowledged was a hotbed of criminal activity). Such facts meant that the dog evidence provided limited inculpatory value. However, the inconclusiveness of the dog evidence went to its weight, not its admissibility. See Commonwealth v. O'Laughlin, 446 Mass. 188, 208 (2006) ("Evidence is not rendered prejudicial merely because it is inconclusive [and] it is for the jury to determine the probative value to be accorded relevant evidence" [quotations omitted]).
The defendant took the opportunity to denigrate the weight of the dog evidence, even suggesting that it supported his innocence (e.g., by pointing out that the scent trail ended before the apartment complex). At no point did the prosecutor misstate the import of the evidence; in fact, his sole mention of it in his summation was: "[a]nd you heard from [the dog's handler] that his dog tracked up toward where the Village was." We discern no error, much less a substantial risk of a miscarriage of justice, regarding the admission or use of the dog evidence.
Police identification. The cashier at the convenience store could see the clothes that the robber was wearing (including a black, puffy jacket), but she was unable to see his facial features, which were covered. However, she was able to hear the robber speak, and she told the police that she recognized his voice as someone she recently had encountered. Specifically, she informed the police that she believed the robber may have been a particular customer who had caused a disruption at her store a couple of days before. The lead detective obtained a security videotape from the convenience store from April 5, 2011, which showed the man who had caused the disruption (dressed in a black, puffy jacket similar to that worn by the robber and similar to the one eventually found in the defendant's girlfriend's apartment where he stayed). The detective also obtained a second April 5th security videotape from a nearby business that showed a far more distinct image of the man. From the second videotape, the detective himself identified the man as the defendant (as he recounted at trial without objection).
The cashier told police that the robber's pants looked like those worn by employees at McDonald's restaurants, and it appears that the cashier may have been suggesting that the robber may have been a particular McDonald's employee as an alternative to the man who had caused the disruption on April 5.
The Sunoco cashier recounted that the man who had caused the disruption on April 5, told her that he had just been at this other business.
The defendant argues for the first time on appeal that the officer should not have been allowed to offer his lay opinion that the person on the videotape was the defendant. See Commonwealth v. Anderson, 19 Mass. App. Ct. 968, 969 (1985). Even if the admission of this testimony was error, see Commonwealth v. Vacher, 469 Mass. 425, 441 (2014), its admission did not cause a substantial risk of a miscarriage of justice. In this regard, we note that the defendant from the start effectively conceded that he was the man in the videotape, and sought to use this fact as part of his explanation of how he unfairly was caught up in the police investigation. In addition, little prejudice could have inured to the defendant if it would have been obvious to the jury that he was the one shown in the videotape (still photographs from which were admitted). Given how clear the second videotape images were, we have no basis for concluding that the jury on their own would not have identified the man in the videotape as the defendant.
For example, in his opening statement, defense counsel stated "[w]hen [the detective] pulls that video from the Sunoco station from the 5th, he takes a look at it . . . and he realizes that he knows that man to be [the defendant]."
Judgment affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 11, 2015.