Opinion
18-P-908
02-05-2020
COMMONWEALTH v. Charles NORMIL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Charles Normil, was convicted by a jury of home invasion, assault and battery by means of a dangerous weapon, and larceny over $250. See G. L. c. 265, § 18C ; G. L. c. 265, § 15A ; and G. L. c. 266, § 30, respectively. On appeal, the defendant contends that (1) the judge erroneously permitted the introduction of improper character evidence about unrelated crimes and the defendant's incarceration; (2) a detective's testimony identifying the defendant from surveillance video was improper; and (3) a detective's testimony that the defendant refused to go to the police station for an interview was impermissible refusal evidence. We affirm.
Background. On the morning of December 14, 2012, an intruder wearing a mask and holding a gun entered the victim's apartment in Methuen. When the victim got out of the shower, the intruder asked her "where the money was." The victim directed him to a drawer in the bedroom containing only a few dollars; the intruder said, "that can't be it," and hit her above her left eye with his gun. The blow blinded her in that eye. The intruder then took the victim to the living room where he stole several portable video game systems, roughly one-half ounce of marijuana, and about ten dollars in cash before leaving.
At trial, the Commonwealth offered testimony that the defendant told J.L. details of the home invasion later the same evening; that N.L. subsequently left two bags containing the video game systems stolen from the victim's apartment and several watches at J.L.'s house; and that, while incarcerated, the defendant told two other prisoners details of the home invasion. The Commonwealth introduced letters written by the defendant from jail, which mentioned the bags containing video games and watches.
The defense at trial was identity. The defendant also argued that J.L.'s account was uncorroborated and inadequately investigated, and that the two inmate witnesses fabricated stories about the defendant to curry favor with the Commonwealth.
Discussion. 1. Character evidence. a. Incarceration. The defendant contends that it was improper to admit evidence that the defendant made admissions to witnesses who either knew him from jail, or heard the defendant's statements while they were incarcerated together.
"Evidence of a defendant's prior incarceration may be admitted if it is offered for a relevant purpose other than to show the defendant's criminal propensity or bad character, and if the probative value of its relevant purpose outweighs the risk of unfair prejudice." Commonwealth v. Foxworth, 473 Mass. 149, 160 (2015), quoting Commonwealth v. Brown, 462 Mass. 620, 628 (2012). We review for an abuse of discretion. Foxworth, supra, citing Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009).
The first reference to jail was made by J.L., who gratuitously mentioned that he knew the defendant from "back around high school time" and from jail. He then went on to testify to admissions made by the defendant. The judge ruled that the reference to jail was improper, and instructed the jury to disregard it. He gave an instruction regarding the reasons why a defendant, through no fault or culpability, might be in jail. There was no objection to the instruction, nor was there a motion to strike the testimony. On appeal the defendant now contends that the instruction was harmful because it cast the defendant in a negative light. Viewing the instruction as a whole, it did not cast the defendant in a negative light, and the judge did not abuse his discretion in ruling the evidence inadmissible and giving a curative instruction.
The defendant moved for a mistrial. The judge denied the motion for mistrial on the grounds that the jury were going to learn that the defendant was in jail from other witnesses. The defendant has not appealed this ruling.
The judge gave the following instruction: "There are any number of reasons why someone might end up in jail. One of the reason[s] why, and I think you'll hear evidence later on, that's one of the reasons why this isn't that big a deal. You will hear evidence later on that the defendant was being held in jail pending these charges. That happens with some frequency with people who can't afford bail. You have a right under the United States Constitution to reasonable bail when you get charged with a crime. The judge sets bail to make sure you show up at trial. That's usually an amount of money you have to post with the court. A lot of people can't post that amount of money with the court. So instead of making bail so-called, they have to stay in jail. So that doesn't mean that they have done anything wrong. It just means they don't have the money to get out. So do not hold that against [the defendant] that he might be in jail."
Two other witnesses (inmate witnesses) testified over objection that they met the defendant while incarcerated, and that he made admissions to them. The judge allowed the evidence, reinstructed the jury during the testimony of the first inmate witness, and reminded the jury of his previous instruction during the testimony of the second inmate witness.
The defendant admitted to the inmate witnesses that he had "stolen stuff." The defendant also tried to hire the inmate witnesses to have the "witnesses taken care of," which the inmate witnesses interpreted as "murder[ing]" J.L. or N.L. so they would not testify against the defendant.
The evidence regarding the defendant's incarceration was admitted not to prove criminal propensity, but to establish identity. Although the inmate witnesses "could have testified to [their] familiarity with the defendant without identifying its source, [their] claim of familiarity is far more persuasive where it is corroborated by evidence that [they] and the defendant served time in the same unit when they were incarcerated." Brown, 462 Mass. at 628. Moreover, the judge took affirmative steps to avoid undue prejudice. The judge provided several "limiting instruction[s], which forbade the jury from considering this evidence for any [improper] purpose." Id. "The jury are presumed to have followed these instructions and disregarded any biases or prejudice that may have arisen from the references to his inmate status." Commonwealth v. Tarjick, 87 Mass. App. Ct. 374, 381 (2015). The judge did not abuse his discretion in admitting evidence of the defendant's prior incarceration. See Foxworth, 473 Mass. at 161.
The references to the defendant's incarceration the Commonwealth made in its opening statement "were necessary to place in context the evidence that the Commonwealth reasonably expected to produce at trial. They were neither unfairly prejudicial nor impermissibly reflective of bad character." Tarjick, 87 Mass. App. Ct. at 381, citing Brown, 462 Mass. at 628.
The Commonwealth also introduced one of the letters written by the defendant while he was in jail through the testimony of J.G., who was the correction officer who intercepted the letter. J.G. was not identified by his job title, and testified only that one of his job duties "was to review outgoing mail"; he did not say where he worked. The judge ordered the return address on the envelope containing the letter to be redacted. We see no merit to the defendant's argument that J.G.'s testimony "prejudiced [him] by showing that he was in prison." The judge did not abuse his discretion in allowing J.G. to testify. As previously discussed, the fact of the defendant's incarceration was already properly before the jury.
b. Uncharged crimes. The defendant further contends that the judge should have excluded evidence that the bags left by N.L. at J.L.'s house contained watches obtained from uncharged crimes in addition to video games taken from the victim's house. Evidence of crimes, wrongs, or other acts is generally not admissible to prove a defendant's character to show that on a particular occasion the person acted in accordance with that character. Mass. G. Evid. § 404(b)(1) (2019). "This rule stems from the belief that such evidence forces the defendant to answer accusations not set forth in the indictment, confuses his defense, diverts the attention of the jury, and may create undue prejudice against him." Commonwealth v. Clifford, 374 Mass. 293, 298 (1978). See Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986). Such evidence may be admitted, however, for other purposes, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Mass. G. Evid. § 404(b)(2) (2019).
The defendant's letter to N.L. referred to several items in the bags, including "the watches, which I have still put away." A detective testified that the bags found at J.L.'s home had both video games with the victim's boyfriend's nickname on them, and watches. The judge mitigated the risk of unfair prejudice to the defendant by ruling that the prosecutor could not inquire into the number or brands of watches, in order to avoid making the defendant "look like some major thief." The prosecutor was permitted to elicit only that there were "a number of watches," some of which "were rather valuable."
The judge excluded evidence that there was also jewelry in the bags, because the defendant did not mention jewelry in his letter.
The presence of watches in the bags, to which the defendant referred in his letter, was probative of the defendant's identity as the perpetrator of the home invasion. The judge did not abuse his discretion in admitting the evidence. See Commonwealth v. Rutherford, 476 Mass. 639, 648-649 (2017).
2. Identification. The defendant maintains that it was error for the judge to admit testimony from Methuen Police Detectives Frost and DeJesus that they had distributed a "still photograph" from security camera footage at the victim's apartment building and that the Lawrence Police Department had called to report that the defendant might be the person in the photograph.
Because this argument involves out-of-court statements made by the Lawrence police, not in-court lay opinion, the defendant's reliance on Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 323-328 (2000), is inapposite. We have considered the defendant's arguments referencing Commonwealth v. Choeurn, 446 Mass. 510, 519-520 (2006), and Commonwealth v. Austin, 421 Mass. 357, 365-366 (1995), and find them to be without merit.
Over objection, Detective Frost testified that the Lawrence Police Department "gave [Frost] the name of [the defendant] as a suspect." Later, however, when Detective DeJesus testified that the Lawrence Police Department said that the photograph "resembled" the defendant, the judge sustained the objection and instructed the jury that they could only consider the hearsay evidence for the limited purpose of assessing the adequacy of the police investigation. See generally Commonwealth v. Wardsworth, 482 Mass. 454, 477-478 (2019). He repeated the instruction in his final instructions to the jury. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). The evidence was properly admitted for this purpose. Any prejudice occasioned by the initial receipt of Frost's testimony without a limiting instruction was cured by the subsequent limiting instruction and the final instructions to the jury.
The defendant also takes issue with the testimony of J.L., who told the jury that the defendant had come to his house the day of the home invasion, and informed him that "a job ... went wrong," and that the police were now looking for him at his house. J.L. testified that the defendant showed him a YouTube video the Methuen police had uploaded and asked if it looked like him. J.L. said it did. We see no error in the admission of this testimony.
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3. Refusal evidence. The defendant contends that remarks contained in the Commonwealth's opening statement, and in Methuen Police Detective DeLeon's testimony, violated his right under art. 12 of the Massachusetts Declaration of Rights not to "be compelled to accuse, or furnish evidence against himself," because they referenced the defendant's failure to meet with police for several days after stating that he would do so.
In his opening statement, the prosecutor summarized the evidence he expected to provide, including that "[t]he police start investigating this defendant. They call him on the phone. He says, yeah, I'll come down talk to you. He doesn't. He does that twice." No objection was made to this portion of the Commonwealth's opening statement.
DeLeon testified that he reached the defendant twice on the defendant's cell phone on Friday, December 14, 2012, and that the defendant stated that he would come to the Methuen police station to speak; that the defendant did not come to the police station; and that when he called the defendant again on Saturday, December 15, 2012, the defendant's number had been disconnected. There was no objection to the testimony, and DeLeon ultimately testified that the defendant "did come in" "Monday morning."
Because defense counsel did not object at trial, we review to determine whether these references, taken together, were error that amounted to a substantial risk of a miscarriage of justice. Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 654 (2008), citing Commonwealth v. Alphas, 430 Mass. 8, 17 (1999). " ‘[E]vidence of a defendant's refusal to comply with a police request’ is inadmissible ‘because in so refusing a defendant furnishes evidence against himself, and admission of that evidence would violate art. 12.’ " Id. at 651, quoting Commonwealth v. Conkey, 430 Mass. 139, 141 (1999). This line of questioning and the reference to it in the prosecutor's opening statement was improper because a person's refusal to cooperate in a police investigation is not consciousness of guilt. See Mass. G. Evid. § 511(a)(2)(A) (2019). However, there was no substantial risk of a miscarriage of justice. The brief reference to the defendant's failure to go to the police station on Friday was almost immediately countered by testimony that he did go to the police station on Monday. Unlike Irwin, this was not a "case [that] turned largely on ... credibility," because here there was substantial corroborating evidence of guilt. 72 Mass. App. Ct. at 654. Several witnesses testified to the defendant's admissions of guilt, the jury saw the surveillance video from the victim's apartment building, and the defendant's own letters tied him to the crime. The judge provided a jury instruction on the limited use of consciousness of guilt evidence, and no reference to this evidence was made by the prosecutor in his closing argument. It is unlikely that any risk of a miscarriage of justice resulted from a brief reference to refusal evidence under such circumstances.
Judgments affirmed.