Opinion
18-P-173
03-07-2019
COMMONWEALTH v. JUAN F. SHEPPARD.
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
The defendant was charged with assaulting and battering his stepson with a dangerous weapon (belt), G. L. c. 265, § 15A (b), and tried before a jury in the District Court. The sole witness was Tomas Caraballo, a school resource officer with the Lawrence Police Department. Caraballo testified that, on May 13, 2016, he was dispatched to the Guilmette School, an elementary school going up to the eighth grade, to investigate a domestic dispute. He made contact with a child at an office in the school, and observed injuries on the child that he described as "long bruises across his shoulder and down his arm." He also testified that the bruises were swollen. Photographs of the injuries were taken. Caraballo then proceeded to the defendant's home in Lawrence, where the defendant, after being Mirandized, confessed to hitting his stepson, whom he named, with a belt the previous evening. The defendant's highly capable counsel succeeded in excluding, on hearsay grounds, any statements by the child and school employees. Thus, other than the testimony as to the defendant's confession, the jury were not told the child's name, address, or relationship to the defendant. Defense counsel also succeeded in precluding Caraballo from opining that the child's injuries were consistent with being hit with a belt. The trial judge denied the defendant's motions for a required finding of not guilty, which he made after Caraballo's direct examination and after both the Commonwealth and defense rested. The jury acquitted the defendant of assault and battery by means of a dangerous weapon but convicted him of the lesser included offense of assault and battery, G. L. c. 265, § 13A (a). He subsequently filed a renewed motion for a required finding of not guilty, Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), which the judge denied. On appeal the defendant challenges the judgment, including the denial of his rule 25 (b) (2) motion and the motion judge's denial of his motion to suppress his confession.
Since Commonwealth v. Forde, 392 Mass. 453 (1984), our courts have held that an extrajudicial confession alone is insufficient evidence of a crime; there must be "some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary." Id. at 458. While, as always, the evidence as a whole must suffice to prove each element of the crime beyond a reasonable doubt, the corroborating evidence need not be sufficient, standing alone, to meet that threshold. See Commonwealth v. Costello, 411 Mass. 371, 375 (1991) ("[T]he corroboration rule does not require corroboration of each element of a crime . . ."). Rather, "[t]he requirement that the extrajudicial confession be corroborated requires only that there be some evidence in addition to the confession" (emphasis added). Commonwealth v. Jackson, 428 Mass. 455, 467 (1998).
The defendant argues that no evidence corroborates his confession because the jury did not hear anything to connect his stepson, whom he admitted to hitting with a belt, with the child at the school. We do not rely on what at first blush might seem the most obvious evidence of this connection -- Caraballo's decision to question the defendant -- because this evidence is probative only if one infers from it that the child or a school employee gave Caraballo truthful information linking the defendant to the crime, evidence the judge properly excluded on hearsay grounds. It is impermissible to indirectly infer inadmissible hearsay from conduct in this way. See Commonwealth v. Kirk, 39 Mass. App. Ct. 225, 229-230 (1995). Still, there was sufficient evidence apart from this to corroborate the defendant's confession. The defendant confessed to hitting his stepson the previous night, and the still-swollen nature of the child's wounds would have suggested to the jury that those wounds were fresh. Although Caraballo was not permitted to opine that the wounds were consistent with being hit with a belt, his description of them as "long bruises" supports an inference that the child was hit with a long object like a belt. And the jury could have used their common sense to conclude that it would be unlikely for two boys in the same school district to have been beaten at the same time in the same way. This is sufficient evidence to satisfy the corroboration requirement. The verdict was supported by sufficient evidence, and the defendant's rule 25 (b) (2) motion was properly denied.
The photographs are not part of the appellate record.
The defendant also challenges the verdict on the ground that the prosecutor's statement in closing that "I don't see the doubt" constituted prejudicial error. While this isolated statement was improper, read in context, and in light of the jury's acquittal of the defendant on the more serious charge, we conclude that it does not warrant reversal. See Commonwealth v. De Christoforo, 360 Mass. 531, 536-538 (1971) (prosecutor's expression of a "personal belief in the guilt of the accused," without more, insufficient to create prejudicial error).
The defendant also challenges the motion judge's denial of his pretrial motion to suppress his confession. He argues that he was subject to custodial interrogation and that there was insufficient evidence that he waived his Miranda rights prior to confessing. We need not reach the waiver issue because we agree with the motion judge that the defendant did not meet his burden of proving that he was in custody at the time of his confession. See Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). The ultimate question is "whether a reasonable person in the individual's position would feel free to leave." Commonwealth v. Simon, 456 Mass. 280, 287 (2010). Our inquiry focuses on the following factors:
"(1) the place of the interrogation; (2) whether the investigation has begun to focus on the suspect, including whether there is probable cause to arrest the suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the suspect; and (4) whether, at the time the incriminating statement was made, the suspect was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with the defendant's arrest."Commonwealth v. Bryant, 390 Mass. 729, 737 (1984).
The motion judge's findings of fact, none of which the defendant challenges as clearly erroneous, indicate the following. Caraballo and another officer, both in uniform, knocked on the defendant's door. The defendant answered, and Caraballo asked if he could speak with him. The defendant agreed. The defendant invited the officers in, and Caraballo immediately read the defendant his Miranda rights from a preprinted card. The defendant indicated that he wanted to speak with the officers. The interview was brief and occurred in the defendant's living room. The defendant was not handcuffed and his movement was not restricted. The officers did not tell the defendant that they intended to arrest him. The officers did not show the defendant the photographs of the child's injuries. After Caraballo told the defendant what the allegations were, the defendant confessed and was arrested.
A reasonable person in the defendant's position would have felt free to end the encounter and leave. The first Bryant factor favors the Commonwealth. The place of the interrogation was the defendant's living room. Although the defendant, citing Commonwealth v. Coleman, 49 Mass. App. Ct. 150 (2000), makes much of the alleged fact that the officers stood between him and the door, this was not a fact found by the judge. Regardless, the officers in Coleman had directed the defendant to a small bedroom where they effectively surrounded him, id. at 151, a much more coercive setup. The second factor favors the defendant, as the judge found that the officers told him of the allegations before he confessed; hence, he knew he was the suspect. However, this factor does not weigh heavily in favor of the defendant because, prior to the confession, the officers did not indicate that they intended to arrest him.
The third factor favors the Commonwealth. The interaction was brief, and nothing in the judge's findings suggests it was anything but informal. Indeed, it appears that the defendant confessed immediately after being told the allegations against him. Unlike in Coleman, supra at 151-152, the police did not tell the defendant that they believed the allegations against him or show him any purported physical evidence. The fourth factor also favors the Commonwealth. The officers arrested the defendant only after he made the incriminating statements at issue. At the time of his confession, his freedom of movement had not been impaired and the officers had said nothing to indicate that he was not free to end the interview, which is the critical issue. See Simon, 456 Mass. at 287. The defendant was not in custody and Miranda warnings were not required.
Judgment affirmed.
By the Court (Vuono, Meade & Rubin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 7, 2019.