Opinion
18-P-659
05-24-2019
COMMONWEALTH v. TYRONE SHORTER.
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
After a jury trial, the defendant was convicted of armed robbery while masked and unlawful possession of a firearm. On appeal, he claims that there was insufficient evidence to support his convictions, and that the judge abused her discretion by not giving an instruction pursuant to Commonwealth v. Bowden, 379 Mass. 472 (1980). We affirm.
The defendant was found not guilty of witness intimidation.
1. Sufficiency of the evidence. The defendant claims that there was insufficient evidence to identify him as one of the masked armed robbers. We disagree. The gravamen of the defendant's argument rests on the lack of direct evidence of identification. However, proof of identity need not be established directly and it may properly be constructed from circumstantial evidence, as was the case here. See Commonwealth v. Jones, 477 Mass. 307, 316-318 (2017); Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 483 (2010).
Here, on the night in question, a Randolph store was robbed by three masked men who arrived at, and escaped, the scene in a gray Jeep Grand Cherokee sports utility vehicle (SUV). Within minutes of the crime, Randolph Police Sergeant Michael O'Neill received a dispatch reporting the crime and a description of the Jeep. When O'Neill saw a gray SUV pass him, he turned around and followed it. Soon after turning on to a dead-end street, the SUV stopped and O'Neill saw two men jump out and flee the scene. O'Neill identified the defendant as one of the men based on his red shorts and black T-shirt, which the storekeeper had reported as the attire worn by one of the assailants.
The operator of the Jeep was arrested. Pursuant to a search warrant, police officers found in the map pocket on the back of the front passenger seat $1,280 in cash. Three white T-shirts were found on the floor behind the front passenger seat. Underneath the T-shirts, a loaded .380 caliber firearm was found. The white T-shirts, thought to be the masks used in the robbery, were submitted to the State police crime laboratory; no deoxyribonucleic acid testing of the T-shirts was conducted.
Roughly one mile away from the robbery scene, Officer Kevin Gilbert received O'Neill's broadcast regarding his following the gray SUV, and the fleeing men, including one wearing red shorts and a black T-shirt. Within thirty seconds of O'Neill's broadcast, Gilbert saw a male, wearing red shorts and a black T-shirt, running out from behind Lafayette Street. The man was sweating and breathing heavily, and Gilbert identified him as the defendant. Upon being stopped, the defendant told Gilbert an unsubstantiated story about being robbed at gunpoint during a drug deal.
To the extent the defendant claims that after Commonwealth v. Crayton, 470 Mass. 228 (2014), the jury could not consider in-court identification of the defendant by the police officers, the claim is without merit. The requirements governing in-court identification set out in Crayton do not apply to police witnesses who testify to their observations of the defendant after the commission of a crime. Id. at 242. In any event, the "constitutional sufficiency of the evidence under Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), is to be measured upon that which was admitted in evidence without regard to the propriety of the admission." Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010). See Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014).
The following day, prior to the defendant's arraignment, a deputy sheriff recovered eight one hundred dollar bills from the defendant's sock. The denomination and manner in which the bills were folded were consistent with the storekeeper's testimony regarding one particular portion of the cash that was stolen during the robbery.
As we must view this evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), there was more than ample evidence to support the jury's conclusion that the defendant was one of the armed robbers. That is, the defendant matched the description of one of the gunmen, was identified as one of the suspects running from the area of the Jeep minutes after the robbery, exhibited consciousness of guilt by his flight from the area of the Jeep as well as his lying to Gilbert about being robbed, and possessed a large amount of cash that was similar in denomination and folding to that which had been stolen. This was sufficient to establish identity. That the evidence did not require the jury to draw the inference that the defendant was one of the robbers does not make its choice to do so unreasonable. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ("inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable").
The defendant's reliance on Commonwealth v. Warren, 475 Mass. 530 (2016), to somehow mitigate or negate the inference of guilt from his flight, is misplaced. In Warren, the Supreme Judicial Court held, in the context of a stop or seizure, that a description of the suspects as "two black males" wearing "dark clothing" and "one black male" wearing a "red hoodie," without any information as to other physical characteristics, lacked sufficient detail to constitute particularized reasonable suspicion to justify a stop. Id. at 535. Putting aside the factual differences between that case and the instant matter, here we must address the defendant's flight in the context of whether there was sufficient evidence to support his convictions. In so doing, we must discount any inference adverse to the defendant's guilt, such as whether there existed some innocent reason for his flight from the area of the crime. See Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981), quoting Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978) ("To the extent that conflicting inferences are possible from the evidence, 'it is for the jury to determine where the truth lies'"). In the end, the evidence was more than sufficient even if we choose not to consider the defendant's flight as part of the equation.
2. Bowden instruction. The defendant also claims that the judge abused her discretion by declining to give a Bowden instruction. 379 Mass. at 485-486. We disagree. Bowden's only mandate is that a judge may not prevent a defendant from arguing a defense based on the inadequacy of the police investigation. Id. Trial judges are not required to give Bowden instructions. Commonwealth v. Daye, 411 Mass. 719, 740-741 (1992). See Commonwealth v. Lao, 460 Mass. 12, 23 (2011).
Here, while the judge declined to give the requested instruction, she expressly told defense counsel that he was free to argue the matter to the jury, which he later did. Also, contrary to the defendant's claim, the judge's final instructions did not unfairly limit the jury's consideration of his Bowden argument. See Commonwealth v. Alvarez, 480 Mass. 299, 318 (2018). There was neither error, nor an abuse of discretion.
Judgments affirmed.
By the Court (Green, C.J., Meade & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 24, 2019.