Opinion
10-P-2188
04-04-2012
COMMONWEALTH v. ROBERT L. STEPHENS.
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
The defendant appeals from his convictions by a Superior Court jury of unarmed breaking and entering a dwelling house in the nighttime in violation of G. L. c. 266, § 15; receiving stolen property in violation of G. L. c. 266, § 60; and possession of burglarious tools in violation of G. L. c. 266, § 49.
Discussion. 1. In 1988, the defendant was charged with two counts of breaking and entering in the nighttime but, because the 'in the nighttime' element was dismissed, he was convicted of breaking and entering in the daytime. Here, during the cross-examination of the defendant, the prosecutor inaccurately referred to the 1988 convictions as including the dismissed 'in the nighttime' element. On appeal, the defendant argues that the trial judge erred by failing to act sua sponte to exclude the prosecutor's inaccurate reference to the dismissed 'in the night time' element of the defendant's 1988 convictions. Because the defendant did not object to the erroneous description of his 1988 convictions, we must determine if such an error created a substantial risk of a miscarriage of justice. See Commonwealth v. Little, 453 Mass. 766, 773 (2009).
The defendant challenged the admissibility of his prior 1993 robbery convictions in a motion in limine. He did not, however, raise any objections specifically regarding his 1988 convictions at that time. At no time did the Commonwealth or the defendant alert the trial judge to the fact that the defendant had entered guilty pleas to two counts of the lesser included offense. Even if the defendant had raised the 1988 convictions in his pretrial motion, this would have been insufficient to preserve his appellate rights without specific assurance from the motion judge that his appellate rights were preserved. See Commonwealth v. Little, 453 Mass. at 773; Commonwealth v. Aviles, 461 Mass. 60, 66 (2011).
A substantial risk of a miscarriage of justice exists if, among a number of factors, 'the judge's error, viewed in the context of the entire trial, influenced the ultimate verdict.' Commonwealth v. Randolph, 438 Mass. 290, 299 (2002). In other words, we must ask if the error was 'material' or 'outcome determinative.' Commonwealth v. Brazie, 66 Mass. App. Ct. 315, 319 (2006). The defendant claims that the similarity between the 1988 convictions and the crime for which he was on trial further increased the influence the reference to those convictions had on the verdict. He contends that since his 'credibility was critical' and the impeachment with inaccurate prior convictions directly affected that credibility assessment, the error here influenced the verdict and was outcome determinative.
'[T]he substantial similarity of the crimes is a factor to be considered in deciding whether evidence of a conviction of a prior crime should be admitted.' Commonwealth v. Maguire, 392 Mass. 466, 471 (1984). While 'the admission of a prior conviction substantially similar to that for which the defendant is on trial is [not] per se error,' Commonwealth v. Reid, 400 Mass. 534, 538 (1987), where the underlying crimes are similar, 'there is a higher attendant risk that [the defendant] might improperly be convicted based on his reputation or his propensity to commit a crime.' Commonwealth v. Little, 453 Mass. at 774. The evidence supporting the defendant's convictions was strong. That evidence included testimony that the defendant's clothing matched both Detective Norton's and homeowner Dominic Ottaviano's descriptions of that worn by the fleeing man they had observed ; the presence of the defendant's brother on the scene; the fact that, within minutes of Ottaviano's seeing the whistling accomplice flee, a trained tracking dog found the defendant near a shed in the woods underneath a pile of wood, dressed in dark clothing, and breathing hard; and the fact that the defendant gave a false name upon discovery. Moreover, we note that the admission of the 1988 convictions did not prevent the defendant from testifying. Indeed, he did testify and was found not credible. Contrast Commonwealth v. Little, 453 Mass. at 775 (where evidence was minimally sufficient, substantial risk of a miscarriage of justice existed because the admission of a substantially similar conviction 'effectively prevented [the defendant]' from testifying in his own defense). Had the jury heard that the prior offenses occurred in the daytime, not in the nighttime, there is no substantial risk that the jury's verdict would have been different. Given the evidence, we conclude that the misstated conviction did not materially influence the verdict. Commonwealth v. Brazie, 66 Mass. App. Ct. at 319. There was no substantial risk of a miscarriage of justice.
Detective Norton testified that he saw a dark-clothed man running along South Marble Street and into the woods along Meadow Street. Dominic Ottaviano testified that he saw a dark-clothed man who was crouched in a neighbor's driveway and was whistling, and that the man ran when he made eye contact with Ottaviano.
2. The defendant also claims as error the judge's allowance of the canine-tracking evidence. We disagree. First, the record simply does not support the defendant's claim that the scene was contaminated. Even had the scene been contaminated, the handler testified that he and his dog were trained for such situations. Moreover, as the trial judge noted, the canine evidence was corroborated by the descriptions and testimony of two witnesses who saw a man fleeing the area.
Canine-tracking evidence is admissible 'provided a proper foundation has been laid.' Commonwealth v. Hill, 52 Mass. App. Ct. 147, 153 (2001). A proper foundation consists of the 'qualifications of handlers and canines, their training, number of successful tracks, and behavior of the canines in directing the officers to the defendant[].' Commonwealth v. LaPlante, 416 Mass. 433, 440 n.10 (1993). At trial, the dog's handler testified extensively as to his and his dog's qualifications, training, and experience. A sufficient foundation for the introduction of canine evidence was laid here.
The defendant also argues that the handler's testimony regarding 'fear scent' amounted to an impermissible opinion of guilt. There was no objection to this testimony. Furthermore, the handler explained on cross-examination that he was not qualified to explain this phenomenon. The handler did testify that the dog is trained to track the freshest human scent. Under these circumstances, there is no likelihood that the jury could have understood the handler's testimony as an improper opinion about the defendant's guilt. Moreover, in view of the substantial amount of circumstantial evidence of the defendant's guilt, there is no risk that the testimony, even if it should not have been admitted, created a substantial risk of a miscarriage of justice.
We discern no merit in the contention that the judge was required to give jury instructions regarding how and when the jury may use canine tracking evidence. Quite apart from the fact that no such instruction was requested and Massachusetts case law does not require it, the judge's instructions on credibility and burden of proof were sufficient. United States v. McNiece, 558 F. Supp. 612, 613, 616 (E.D.N.Y. 1983), is not applicable because it was concerned with canine line-up identification evidence, not tracking evidence.
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Judgments affirmed.
By the Court (Katzmann, Sikora & Agnes, JJ.),