Opinion
No. 11–P–1876.
2012-06-27
COMMONWEALTH v. Corey THEALL.
By the Court (GRASSO, GREEN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Our review of the record satisfies us that the evidence presented by the Commonwealth at trial was sufficient to support the defendant's conviction on a charge of arson of a motor vehicle, G.L. c. 266, § 5, and that no substantial risk of a miscarriage of justice appears by reason of the other claims raised by the defendant for the first time on appeal. We accordingly affirm the judgment, addressing the defendant's claims in turn.
1. Sufficiency of the evidence. The evidence at trial, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), was sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that the defendant wilfully and maliciously burned or aided in burning so as to damage or destroy a motor vehicle belonging to another. The defendant's challenge to the sufficiency of the evidence is directed solely to the evidence of his identity as one of the two individuals recorded by a surveillance video camera while setting fire to the vehicle. For substantially the reasons set forth in the Commonwealth's brief at pages 11–21, we disagree with the defendant. When apprehended (at approximately 4:00 A. M.), the defendant and his companion, Smith (a pseudonym
), were wearing clothing that matched the description of the clothing worn by the two occupants of the vehicle when questioned by a mall security guard shortly before the vehicle was burned.
We use a pseudonym to refer to the defendant's companion, as it appears that the latter was a juvenile at the time of the incident.
As Sergeant Nasworthy testified, both had a “black sooty-type substance” on their hands and clothing.
While the description of the defendant's clothing included no clothing that was particularly unique or distinctive, it was considerably more detailed than the description of a puffy coat furnished in Commonwealth v. Cheek, 413 Mass. 492, 496 (1992). Moreover, Smith was wearing (among other described clothing) fingerless gloves. The defendant's presence with Smith on an otherwise deserted street in the very early morning hours served circumstantially to support the inference that he was the same person observed by the mall security guard in Smith's company immediately before the two individuals were recorded by video camera while setting fire to the vehicle.
The above-mentioned surveillance video recording showed two individuals walk to the back of the vehicle and remove its gas cap shortly before it became engulfed in flames. When apprehended, the defendant and Smith gave evasive responses to inquiries about where they had been, illustrating consciousness of guilt, and had a lighter and matches (but no cigarettes). For these and the other reasons summarized in the Commonwealth's brief, the evidence amply supported the inference that the defendant was present at the scene and participated with Smith in setting fire to the vehicle. 2. Instructions on joint venture. The judge's instructions on joint venture (to which the defendant did not object at trial) mirrored the instructions prescribed by the Supreme Judicial Court in Commonwealth v. Zanetti, 454 Mass. 449, 470 (2009). There was no error, and accordingly no substantial risk of a miscarriage of justice.
Articles of the clothing worn by Smith and the defendant, as well as photographs of their hands, were also put in evidence as exhibits. The defendant has not brought those exhibits before us. See Mass.R.A.P. 9(b), as amended, 378 Mass. 935 (1979).
3. Testimony concerning sooty substance on the defendant's hands and clothing. There is no merit to the defendant's contention, raised for the first time on appeal, that scientific or other expert testimony was required as a foundation to refer to the substance on the defendant's hands and clothes as “sooty.” The appearance of soot is within the common knowledge of an ordinary layperson. See, e.g., the authorities cited in the Commonwealth's brief at page 24.
4. Closing argument. Finally, the prosecutor's closing was not improper. The prosecutor's references to the defendant and Smith being “covered in soot” have not been shown to be beyond fair inference from all the evidence, including the exhibits (see note 3, supra ) and the testimony by Sergeant Nasworthy, to which there had been no objection, and which, as we have discussed, was properly admitted in any event. The other comments to which the defendant now objects were not improper, for the reasons explained in the Commonwealth's brief at pages 28–31.
Judgment affirmed.