Opinion
No. 11–P–1126.
2013-01-29
COMMONWEALTH v. Jenny TORRES.
By the Court (BERRY, FECTEAU & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from her conviction, after a jury-waived trial in the District Court, for the wilful abandonment of a dog, in violation of the animal cruelty statute, G.L. c. 272, § 77. She complains of certain evidentiary errors that created a substantial risk of a miscarriage of justice and of the lack of sufficient evidence to support a finding of guilt. We reverse.
The Commonwealth presented its case through the testimony of Caroline Carlson, a civilian witness,
and Emmanuel Maciel, an animal control officer. To show the defendant's involvement with the alleged abandonment of the dog, the Commonwealth relied on testimony only from Maciel, which included statements given by two people, the first being Jimmy Correa, the passenger of the van that was sought in connection with the report from Carlson (see note 1, supra ).
The civilian testified that as she was walking on Anthony Street in New Bedford with her young daughter, she saw a white vehicle apparently about to turn onto the street but, being attentive to her daughter, she did not see the vehicle stop or drive by. Some moments later, she realized that a dog was sitting in the street but did not know how the dog got there. She did not observe the dog exit from the van, nor did she see the van's occupant(s); she noted the van's license plate number and called it into animal control some hours later.
Maciel testified that Correa told him that he was the cousin of the driver, the defendant, and that “they got rid of the dog.” He was arrested. Once at headquarters, Correa told the officer that the dog was not his, but instead was his cousin's, the driver of the van.
The second person whose statements were reported by the officer in his testimony was an unidentified stone mason who apparently saw the van at approximately the same time and place as Carlson and who identified the defendant as the driver, but he had not seen any dog.
The judge overruled the defendant's objection to the officer's testimony about Correa's statements that were inculpatory of the defendant. The judge ruled that the testimony was an “admission against interest.” The Commonwealth contends first that the admission of Correa's statements incriminating the defendant was proper under that exception to the hearsay rule. As was recently explained in Commonwealth v. Nutbrown, 81 Mass.App.Ct. 773, 776–777 (2012), quoting from Commonwealth v. Weichell, 446 Mass. 785, 802–803 (2006), there is a three-part test for admission of statements against penal interest: “[1] the declarant's testimony must be unavailable; [2] the statement must so far tend to subject the declarant to criminal liability ‘that a reasonable man in his position would not have made the statement unless he believed it to be true’; and [3] the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.” See Mass. G. Evid. § 804(b)(3)(2012).
Later, after she was arrested and Miranda warnings given, the defendant denied that the dog was hers, saying it was her cousin “Jimmy's,” the passenger of the van. When confronted with Jimmy's statement that it was her dog, she replied “fine, it's my dog. I'll just sign him over [to animal control].” She also complained that “this is ridiculous that, you know, that it was just a dog, ... [and] that this is all going on over a dog.”
We note additionally that a statement by a declarant that also incriminates a defendant must be corroborated, a requirement that “should not be applied with such leniency that the defendant's confrontation rights are violated.” Commonwealth v. Pope, 397 Mass. 275, 280 n. 7 (1986). See Commonwealth v. Charles, 428 Mass. 672, 679 n. 2 (1999).
The requirements for admission of Correa's declaration against penal interest were not met, in that, while Correa had been arrested, and theoretically qualified to claim a privilege against testifying, the Commonwealth never sought to demonstrate his actual unavailability. Indeed, as the case unfolded, Correa testified for the defendant, but only claimed his privilege not to answer certain questions during cross-examination. His statement was therefore inadmissible against the defendant as a statement against his penal interest.
As an alternative ground for the admissibility of Correa's statement, the Commonwealth contends that it was made during the course and in furtherance of a joint venture. However, since the statement was given by Correa—who was then under arrest and admitting his own involvement, as well as implicating the defendant—the criminal enterprise was clearly over and any claim that the statement furthered the venture is without merit. See Commonwealth v. Borgarzone, 390 Mass. 326, 340 (1983); Commonwealth v. Colon–Cruz, 408 Mass. 533, 543 (1990); Commonwealth v. Reaves, 434 Mass. 383, 388 (2001). Lastly, and most significantly, the joint nature of the enterprise must be proven by evidence independent of the statement at issue; here, however, the only evidence of joint involvement is Correa's statement. See Commonwealth v. Colon–Cruz, supra.
Similarly, the Commonwealth's reliance on nonhearsay purposes to justify the admission of the statement of the nontestifying stone mason is misplaced. At trial, the officer was permitted to testify that the mason “pointed out the driver's identity to us, which was the driver at Cumberland Farms.” The Commonwealth contends this information was admissible for the “nonhearsay” purpose of showing the investigative steps leading to the defendant. The Commonwealth was entitled to show the state of police knowledge that led, legitimately, to the defendant. However, we recently explained the parameters in Commonwealth v. McLaughlin, 79 Mass.App.Ct. 670, 679 (2011): “The prosecution may introduce ‘carefully circumscribed extrajudicial statements in criminal trials to explain the state of police knowledge....’ ‘However, even where properly constrained, testimony of this kind carries a high probability of misuse.’ “ (Citations omitted.) Such testimony “runs the risk of implicit communication to the jury of ‘incriminating statements that are otherwise inadmissible.’ “ Ibid., quoting from Commonwealth v. Tanner, 66 Mass.App.Ct. 432, 439 (2006). “Consequently, ‘even general evidence of extrajudicial conversations presented to show the state of police knowledge’ should come into evidence only if ‘(1) the evidence is presented by a police officer on the basis of his own personal knowledge; (2) the testimony is strictly limited to ‘facts required to establish the officer's state of knowledge’; and (3) the question of police knowledge is relevant and material to some live issue before the fact finder.' “ Ibid., quoting from Tanner, supra. See Commonwealth v. Rupp, 57 Mass.App.Ct. 377, 383 (2003).
The fundamental difference between a statement characterized as hearsay as opposed to one offered for nonhearsay purposes is that the latter is not offered for the truth of the matter asserted and thus, is admissible only for that limited nonhearsay purpose. See, e.g., Commonwealth v. Mullane, 445 Mass. 702, 710–711 (2006). Consequently, in the present case, the nonhearsay statement may not be considered to show, in fact, that the defendant was the driver of the white van at the relevant time, and implicitly a participant in the offense. Since the statements from the mason and Correa show or imply those facts, it was error for the judge to have relied upon them. While the officer saw the defendant emerge from the van's driver side at the convenience store some hours after the event in question, the only evidence that she was operating the van at the time the dog was apparently let out of the van came from the hearsay statements of Correa and the mason. The defendant was thereby harmed. While there may be evidence of the defendant's desire and intent to part with her dog, without the statements by Correa and the mason as reported by Maciel, there was no evidence of her presence and participation in the actual abandoning.
Given our decision, there is no need to address the defendant's final contention that the evidence was insufficient, other than to say that retrial is permissible. “If the evidence admitted at the trial was sufficient to send the case to the jury, but is insufficient to send the case to the jury if all improperly admitted evidence is disregarded, double jeopardy principles nevertheless do not bar a retrial.” Commonwealth v. Lester, 70 Mass.App.Ct. 55, 67 (2007), quoting from Kater v. Commonwealth, 421 Mass. 17, 18 (1995).
Consequently, whether the claims were preserved by objection or not, we conclude that this evidence “materially influenced” the trier of fact in finding the defendant guilty, a substantial risk of a miscarriage of justice was thus created and a new trial is required. See Commonwealth v. Freeman, 352 Mass. 556, 563–564 (1967); Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Judgment reversed.
Finding set aside.