Opinion
10-P-366
02-10-2012
COMMONWEALTH v. ERIC ROBINSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant was convicted of breaking and entering in the daytime with the intent to commit a felony, G. L. c. 266, § 18. On appeal, the defendant challenges the sufficiency of the evidence on the element of 'breaking.' He also contends that certain remarks made by the prosecutor in his closing arguments created a substantial risk of a miscarriage of justice. We affirm.
Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found the following facts. On October 9, 2008, at about 9:30 in the morning, the victim left her apartment to go to work. She locked the front door as she was leaving, but forgot to close and lock her bedroom window. The apartment was located on the first floor and the bedroom window was approximately seven feet above ground. A few hours later, the resident custodian of the apartment complex was assisting the mailman at the victim's front door when he heard music coming from within the apartment. The custodian checked the back of the building and saw two men, whom he recognized, inside the apartment looking at him through the window. One of the two men was the defendant. The custodian hid in a nearby alley and then returned to the area in time to see the defendant and his accomplice jump out of the victim's bedroom window and run away.
The police arrived and the custodian described the intruders, explaining that both men also lived in the apartment complex. The police found two bags, a knapsack that belonged to the victim's son and another bag, filled with the victim's possessions (Play Station, Wii game console, cellular telephone, DVD player, and jewelry) in the victim's bathroom. The victim testified that she did not know the defendant and did not give him permission to be in her apartment.
The defendant contends that the Commonwealth failed to prove beyond a reasonable doubt the element of 'breaking' where, as here, the entry was through an open window. This argument is controlled by the Supreme Judicial Court's decision in Commonwealth v. Tilley, 355 Mass. 507, 509 (1969). In that case, the Supreme Judicial Court stated: 'we think that entry through an open window not apparently intended, or usable in due course, as a means of entry is within the intent of [G. L. c. 266, § 18].' See Commonwealth v. Hall, 48 Mass. App. Ct. 727, 731 (2000) (entry through an open window that was not intended as an entrance would be a 'breaking'). As there was ample evidence that the defendant had gained entrance through the open bedroom window without permission, his motion for a required finding of not guilty was properly denied.
Prosecutor's closing argument. There was nothing unduly prejudicial about the prosecutor's use of the phrase 'virtual lineup' in describing the custodian's identification of the defendant. Even if we were persuaded that the comment was improper, there was no risk of a substantial miscarriage of justice when the comment is viewed in the context of the entire argument. Furthermore, as the Commonwealth notes in its brief, the judge's instructions at the beginning and at the end of the trial advising the jury that closing arguments are not evidence were sufficient to cure any prejudice from the prosecutor's remark. Commonwealth v. Choeurn, 446 Mass. 510, 523 (2006).
Judgment affirmed.
By the Court (Green, Vuono & Milkey, JJ.),