Opinion
20-P-1084
02-01-2022
COMMONWEALTH v. Edgar RODRIGUES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Boston Municipal Court, the defendant was convicted of larceny from a person and assault and battery on an elder or disabled person. The defendant moved, unsuccessfully, for required findings of not guilty at the close of the Commonwealth's case and again at the close of all the evidence. On appeal, the defendant challenges the sufficiency of the evidence proving that he was the perpetrator of the crimes and contends that he is entitled to have the judgments against him vacated based on the prosecutor's improper closing argument. We affirm.
Facts. Given the defendant's challenge to the sufficiency of the evidence, we summarize the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). At approximately 5 P.M. on September 14, 2017, the victim, then ninety-two years old, was about to enter a synagogue at 283 Shirley Street in Winthrop when his wallet was yanked from his pocket with such force that he fell the two steps onto the sidewalk and his pants were pulled nearly off. As the victim fell, he saw the perpetrator running away down Shirley Street, and saw a bystander run after him. The victim described the thief as having "[c]urly hair, somewhat flat-ish nose, dark skin. Not too dark, just brown-ish. And wearing work clothes."
A passenger on a bus driving on Shirley Street saw the victim fall, and a "[s]lender build" man with long "dreaded" hair and dark skin run away. She chased the man, but could not catch him. Video recordings taken from the bus depict the passenger running after a man wearing a brown long-sleeved top spotted with white paint and grey sweatpants, and with long hair under a slouchy, black knit hat. The man turned left off Shirley Street into an alley or passage between "Mally's [H]air [E]xpressions" and another building, then passed out of view of the camera.
We understand this term to describe hair worn in dreadlocks.
Although the victim described the bystander who chased the perpetrator as a man, the jury could have found that in the fracas, it was, in fact, the bus passenger -- wearing short hair, jeans, and a T-shirt -- whom the victim saw running after the thief.
Winthrop Police Officer Giulio Bonavita responded to the Shirley Street location of the crime. He was unable to speak to the victim, who was injured and "dazed," but obtained a description of the attacker from bystanders as a man with "dreadlocks, gray sweatshirt, gray sweatpants, possible green writing on the shirt with paint marks, and bushy hair with a possible bushy beard." The police did not immediately find anyone matching the description given to them. At approximately 6:45 P.M. , however, after an identified caller informed the police that he recalled seeing "a black male with dreadlocks" painting an apartment at 270 Shirley Street, across the street from the synagogue, Bonavita went to that address and found the defendant at work with his uncle and several other members of a painting crew. The defendant allowed the police to photograph him. In the photograph, taken within three hours of the attack, the defendant is wearing a paint-covered gray short-sleeved shirt with green lettering on the front. He has brown skin, long dreadlocks and a beard, and is wearing a slouchy, black knit hat.
He was later diagnosed with a subdural hematoma as a result of the fall he suffered from the synagogue steps.
The victim's stolen wallet, minus the cash and blank checks it had contained when it was taken from the victim, was later recovered in an alleyway off Shirley Street and behind Mally's hair salon, close to the location of the synagogue.
Discussion. 1. Sufficiency of the evidence. In reviewing a challenge to the denial of a motion for a required finding of not guilty, we "consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). See Latimore, 378 Mass. at 676-677. In doing so, we do not weigh the supporting evidence against conflicting evidence. Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
The evidence presented at trial was sufficient to permit the jury to find beyond a reasonable doubt that the defendant was the man who stole the victim's wallet and yanked him down the steps of the synagogue. The jury could have inferred that the defendant was the person described by the victim and the bus passenger at trial, depicted on the video recorded from the bus, and ultimately photographed by the police three hours after the attack. See Corson v. Commonwealth, 428 Mass. 193, 196-197 (1998). To do so did not, as the defendant suggests, require the jury to resort to speculation or conjecture. That the jury could have drawn other inferences from the evidence or made different credibility assessments than the ones that led to the defendant's conviction does not alter our conclusion. See Commonwealth v. Martinez, 487 Mass. 265, 276 (2021), quoting Commonwealth v. Platt, 440 Mass. 396, 401 (2003) ("where ‘the evidence lends itself to several conflicting interpretations, it is the province of the jury to resolve the discrepancy and "determine where the truth lies" ’ "); Commonwealth v. Mejia, 461 Mass. 384, 392 (2012) (Commonwealth may rely entirely on circumstantial evidence, so long as inferences drawn from it are reasonable and possible); Commonwealth v. Merry, 453 Mass. 653, 660-661 (2009) ("The jury [were] free to believe or disbelieve any or all of the evidence they hear[d]").
The cases cited by the defendant do not persuade us otherwise. Unlike Commonwealth v. Tam, 49 Mass. App. Ct. 31, 38 (2000), the identification evidence included specific detail about the perpetrator's appearance and other links to the crime. See Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 162-164 (2019) (circumstantial evidence buttressing and supplementing eyewitness identification evidence). Cf. Tam, supra (no probable cause to believe defendants were involved in altercation where witnesses unable to describe assailants other than as "Asian" and within certain height range); Commonwealth v. Calixte, 93 Mass. App. Ct. 1105 (2018) (identification evidence insufficient where none of the details of witnesses' descriptions of assailant matched).
As to the defendant's argument that the identification evidence here is less definitive than in other cases in which the evidence of identity was deemed sufficient, the defendant's focus is misplaced. The question is not how the facts of this case compare to those of other cases, but whether the evidence here satisfies the Latimore standard.
Likewise, that the police could have taken other steps to confirm the defendant's identity is of no moment. See Commonwealth v. Mejia, 461 Mass. 384, 392 (2012) (Commonwealth may rely entirely on circumstantial evidence, so long as inferences drawn from it are reasonable and possible).
2. Prosecutor's closing argument. The defendant contends that he is entitled to have his convictions vacated based on the prosecutor's misstatement of the evidence at two points during his closing argument. First, when the prosecutor argued that the defendant was motivated to steal the victim's wallet because he was "unable to make ends meet by painting houses in Winthrop"; and second, when he argued that "[t]he descriptions [of the perpetrator] that Officer [Bonavita] got from ... witnesses [at the scene] essentially described the suspect in the same way that [the victim] and [the bus passenger] described [him].... [T]hat the person was wearing a sweatshirt with a [T]-shirt underneath that had green ... lettering on it[.]" "We consider statements made during closing argument ‘in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.’ " Commonwealth v. Lester, 486 Mass. 239, 247–248 (2020), quoting Commonwealth v. Felder, 455 Mass. 359, 368 (2009). Because the defendant objected to only the second of these points, to the extent that we discern error in the argument, we review the first statement to see if it created a substantial risk of a miscarriage of justice, see Commonwealth v. Kozubal, 488 Mass. 575, 590 (2021), but the second for prejudicial error. See Commonwealth v. Alvarez, 480 Mass. 299, 305, S.C., 480 Mass. 1015 (2018).
The prosecutor's argument that the defendant seized the opportunity to steal the victim's wallet because "[he] was unable to make ends meet" had, at most, scant support in the record. It was quite arguably too great an inferential leap from the only evidence of the defendant's financial circumstances -- the fact that he was available to do short-notice painting work at a rate of $140 per day -- to the prosecutor's conclusion. As we have noted, the defendant did not object to this statement. Nevertheless, guided by the test applicable to preserved errors in closing arguments, see Commonwealth v. Silva-Santiago, 453 Mass. 782, 807 (2009), we conclude that any error did not create a risk of a miscarriage of justice. See Commonwealth v. Payne, 426 Mass. 692, 697 (1998). The improper statement focused on the perpetrator's motive, which was a collateral issue in the case. See Commonwealth v. Perez, 444 Mass. 143, 152-153 (2005). Although a specific curative instruction may have been appropriate had a request for one been made, see Commonwealth v. Kozec, 399 Mass. 514, 522-523 (1987), the judge did correctly instruct the jury on their obligation to find facts based solely on the evidence in the case, and on the distinction between evidence and argument. Finally, the error was limited to a single reference in an argument spanning some ten pages of transcript. See Lester, 486 Mass. at 249. We are not persuaded that the statement created a substantial risk of a miscarriage of justice.
In applying that test,
"[w]e consider four factors in determining whether an error made during closing argument is prejudicial: ‘(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions.’ "
Alvarez, 480 Mass. at 306, quoting Commonwealth v. Silva-Santiago, 453 Mass. 782, 807 (2009).
As to the second point, we discern no error. Bonavita testified that the people he interviewed at the scene of the crime described the perpetrator as a person with "dreadlocks, gray sweatshirt, gray sweatpants, possible green writing on the shirt with paint marks[.]" The bus passenger described the person she chased as he ran from the scene as "male, long-haired, dreaded and [with] dark skin"; she did not describe his clothing. The victim described the perpetrator as having "brown-ish" skin, "curly hair," and "wearing work clothes." The photograph of the defendant taken on the day of the attack and introduced into evidence at trial depicts him with paint on his clothing and with his hair worn in dreadlocks. The prosecutor's argument to the effect that the descriptions all fit the defendant was not a misstatement of the evidence.
Judgments affirmed.