Opinion
19-P-1576
11-04-2020
COMMONWEALTH v. Shane O'DONNELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Shane O'Donnell, was convicted of one count of receiving stolen property under $250, second or subsequent offense, see G. L. c. 266, § 60, and three counts of credit card fraud over $250, see G. L. c. 266, § 37C (e ). On appeal, the defendant contends that the prosecutor and police witnesses were erroneously permitted to identify the woman seen in surveillance video footage accompanying the man whom the Commonwealth claimed to be the defendant, and that the judge erred by permitting the Commonwealth to introduce evidence of the woman's address as shown in her registry of motor vehicles (RMV) records. We affirm.
The defendant was indicted in 2014. In 2018, the Legislature amended G. L. c. 266, § 60, to raise the amount that distinguishes between the misdemeanor and the felony of receiving stolen property from $250 to $1,200. See St. 2018, c. 69, § 146. Likewise, the Legislature increased to $1,200 the amount that distinguishes between misdemeanor credit card fraud, G. L. c. 266, § 37B, and felony credit card fraud, G. L. c. 266, § 37C. See St. 2018, c. 69, §§ 141, 143.
Background. This case arises from two incidents, in July and August of 2013, in which two different victims' credit cards were stolen and subsequently used at stores, restaurants, and gas stations. Police obtained surveillance video recordings from the locations the credit cards were used and, by comparing the footage to RMV photographs of the defendant and Sarah Gordon -- and noting that the defendant's residential address was the same as Gordon's mailing address -- charged the defendant and Gordon with the crimes. The trial involved only the charges against the defendant, Gordon having pleaded guilty (a fact that was not disclosed to the jury).
Discussion. 1. References to Gordon. The defendant argues that the prosecutor improperly "identified" Gordon in his opening statement, that two police officers improperly identified Gordon in their testimony, and that the prosecutor relied on improper identifications of Gordon in his summation. Because defense counsel did not object to any of these references to Gordon at trial, we review these claims to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 324-325 (2016) ; Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 868-869 (2007). We discern no error.
a. Prosecutor's opening statement. During the prosecutor's opening statement, he referred to Gordon by name several times: "You'll see surveillance video depicting this Defendant in that video, in Shaw's, using the cards, with Sarah Gordon"; "And then you'll see evidence of Ms. Gordon doing another transaction, right -- standing right next to him at the same cash register"; "You'll see surveillance video of the female in the store, making that purchase. You'll have her Registry of Motor Vehicles photograph of Ms. Sarah Gordon to compare with that surveillance video"; "And you'll see him, along with a female in that video, which you'll also be able to compare with Sarah Gordon, again, in the CVS." The defendant raised no objection.
"The prosecutor in a criminal action in general may state in his opening anything that he ... expects to be able to prove by evidence. Although the expected testimony or other evidence that the prosecutor alluded to in his opening may not materialize during trial, it will not be presumed that the prosecutor acted in bad faith" (citations omitted). Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). See Mass. G. Evid. § 1113(a)(1) (2020). The prosecutor reasonably anticipated that the evidence would show that Gordon was the woman in the surveillance video, and, as the prosecutor stated, the jurors indeed received the opportunity to compare the surveillance video footage with Gordon's RMV photograph. Moreover, at the time of the opening statement, the prosecutor had a good faith belief that Detective Robert Gallagher would be permitted to identify Gordon as the woman in the video footage and the defendant as the man with her. The defendant identifies nothing improper in the opening statement.
b. Police officer testimony. On the second day of trial, the judge denied the Commonwealth's request to permit Gallagher to testify, thus excluding any testimony identifying the defendant and Gordon as the man and women seen using the stolen credit cards in the video recordings. The judge reasoned that Gallagher was no more capable than the jurors of comparing the video footage to the RMV photographs. See Commonwealth v. Wardsworth, 482 Mass. 454, 476 (2019) ; Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 323-329 (2000).
During direct examination of Detective Kristopher Maxant, RMV photographs of the defendant and Gordon were admitted in evidence and marked as exhibits, without objection. The prosecutor then asked Maxant, "With regard to the image of Ms. Sarah Gordon, you -- the Registry of Motor Vehicles picture, did you identify that to -- I mean, not identify. Did you compare that with any image from the Shaw's?" Maxant answered, "Yes." A copy of Gordon's RMV photograph, displayed alongside still images taken from the Shaw's video footage, was marked as an exhibit. Similarly, when asked by the prosecution, Detective Matthew Heslam testified that he compared the RMV photograph of Gordon to still images from the CVS and Target video recordings. Heslam further testified, when asked why he chose not to process one victim's stolen car for fingerprints, that the video evidence "was really good."
Defense counsel reserved the defendant's rights with respect to "sanitization" of the RMV certificates accompanying the photographs.
The defendant argues for the first time on appeal that the officers impermissibly "back-door[ed]" in the identification of Gordon by placing Gordon's RMV photograph next to stills taken from the surveillance video footage and testifying that they "compared" them, notwithstanding the judge's ruling that Gallagher was not permitted to identify Gordon or the defendant. Again, we discern no error.
In general, police officers are allowed to provide some explanation of their actions. "[A]n arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct." See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting McCormick, Evidence § 249, at 734 (3d ed. 1984). The investigation showed that a woman who resembled Gordon worked in tandem with a man to obtain money and goods with the stolen credit cards. Without some explanation of the steps the investigators took, the jury would be left to speculate why they were presented with photographs of Gordon.
Moreover, the defense at trial was, in part, that the police rushed to judgment that the defendant and Gordon were the culprits and, therefore, did not conduct tests and procedures, such as dusting the victims' cars for fingerprints or using a "photo lineup" for identification, to corroborate their suspicions. "Where a defendant raises a Bowden [ ] defense, the Commonwealth may offer 'testimony about why the investigators chose the particular investigative path they did,' in order to rebut that defense." Wardsworth, 482 Mass. at 478, quoting Commonwealth v. Avila, 454 Mass. 744, 755 (2009). The police officers permissibly explained their investigative process, including that they "compared" photographs, but their testimony did not go so far as to usurp the jury's function to determine whether Gordon was the woman in the video footage.
The judge denied defense counsel's request for an instruction pursuant to Commonwealth v. Bowden, 379 Mass. 472 (1980), but made it clear that counsel could argue the inadequacy of the police investigation in summation. The defendant raises no claim of error regarding the denial of the Bowden instruction.
Similarly, the defendant claims that Heslam improperly identified Gordon when he testified that the video evidence "was really good." Taken in context, this testimony was a rejoinder to the defense charge that the police did not thoroughly investigate the crime, and any undue prejudice was cured by the judge's very specific limiting instructions at the conclusion of Heslam's testimony.
The judge instructed the jury, "During the course of cross-examination, the witness expressed ... confidence in the quality of a video, of video evidence, and confidence concerning matters related to identification. I want to stress to all of you that the issue here of identity of the perpetrator of the crime is for you to determine; it is not for anybody else. It's for you to decide the identity. That evidence was admitted only concerning the investigatory steps that Detective Heslam took, the -- and the reasonableness or unreasonableness of the steps that he took or did not take during the course of the investigation, and was admitted for that purpose only." The judge repeated a variation of this instruction during the final jury charge.
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c. Closing argument. Finally, the defendant argues -- again, for the first time on appeal -- that the prosecutor's references to Gordon in summation were improper. The prosecutor argued consistently that Sarah Gordon was the woman in the surveillance video footage, that the footage showed Gordon using the stolen credit cards with the defendant, that the RMV records showed that Gordon shared an address with the defendant, and that both the defendant and Gordon knew they needed to use the stolen credit cards "right away." The argument was proper.
Counsel are permitted to argue from the evidence and fair inferences therefrom. See Commonwealth v. Murchison, 418 Mass. 58, 59 (1994) ; Commonwealth v. Earltop, 372 Mass. 199, 205 (1977) (Hennessey, C.J., concurring). The Commonwealth proceeded on the theory that the defendant committed the crimes as a joint venturer with Gordon. The surveillance video footage, still images, and RMV photographs were all admitted as evidence. Counsel is allowed some latitude in argument, and jurors are assumed to have a measure of sophistication in their ability to sort out excessive claims from counsel and draw their own inferences. Murchison, supra at 60. Further, any potential harm was cured by the jury instructions, which made clear not only that the statements of counsel were not evidence, but also that the jury had to make their assessment of the Commonwealth's allegations that the defendant and Gordon were the people depicted in the video footage. See Commonwealth v. Miranda, 458 Mass. 100, 117 (2010).
2. Shared address evidence. Defense counsel moved to sanitize the RMV certificate associated with Gordon's photograph, objecting to the admission of her mailing address on the ground that it was irrelevant, hearsay, "very prejudicial," and "basically testimony." The judge determined the address was admissible as a business record of the RMV and relevant to the Commonwealth's joint venture argument because it suggested that the defendant knew Gordon through their shared address. There was no error.
RMV records are not testimonial and are admissible as ordinary business records under G. L. c. 233, §§ 76 and 78. See Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 335-336 (2011). "Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not [to be] disturbed absent palpable error." Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001).
The decision to admit the shared address evidence was within the trial judge's broad discretion. The fact that the defendant's residential address on his RMV records matched Gordon's mailing address on hers was highly relevant and probative of the Commonwealth's joint venture theory. "By design, all evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided." Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188 (2013), quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). We detect no error in the admission of Gordon's address.
Judgments affirmed.