Opinion
18-P-607
04-23-2019
COMMONWEALTH v. LESLIE TORRES.
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, Leslie Torres, was found guilty of breaking and entering in the daytime with intent to commit a felony in violation of G. L. c. 266, § 18. On appeal, he argues that the evidence was insufficient to convict, that the jury instructions were incorrect and created a substantial risk of a miscarriage of justice, and that a prosecutor "misstated" the evidence so as to also create a substantial miscarriage of justice. We affirm.
Background. The victim, 101 year old Lawrence Steinfeld, resides at 48 Pine Street, a "six or seven story" apartment building in Waltham that hosts breakfasts for its residents on Saturday mornings. On February 11, 2017, Steinfeld went downstairs to get breakfast and bring it back to his apartment. As he left his unit he closed his door but did not lock it. Steinfeld returned to his apartment within ten minutes and when he opened the door, he saw a man with glasses, a hood, and a slight build "on the way out" of his unit. After confronting the intruder, the intruder stated, "Oh, I'm new in the building and I guess I got the wrong apartment." The interaction lasted "less than a minute." Once the man left, Steinfeld noticed that his winning lottery ticket worth one hundred dollars was missing from a drawer in his dresser. The ticket had a winning number of twelve with two matching twelves worth fifty dollars each. Steinfeld notified the building's staff of his interaction with the intruder and the theft of his winning lottery ticket, and the police were called soon thereafter.
Officer Thomas Bryant of the Waltham Police Department met Steinfeld at the apartment building between 8:30 and 8:45 A.M. After Steinfeld told Officer Bryant about the lottery ticket, Officer Bryant began an investigation by checking local convenience stores to see if anyone "had recently, within the last half hour, [forty-five] minutes, cashed a scratch-off ticket for [one hundred dollars]." After checking two other stores and receiving a negative response, Officer Bryant visited Cronin's Market, which was a block away from Steinfeld's apartment building. The cashier at Cronin's Market told the officer that someone had cashed a one hundred dollar ticket that morning. The ticket was cashed at 8:43 A.M. and had a winning number of twelve and two matching twelves, each worth fifty dollars.
Officer Bryant subsequently viewed Cronin's Market's security footage for "around the time" the ticket was cashed. After viewing the surveillance tape, he identified the individual cashing the lottery ticket as Leslie Torres, the defendant. The officer then went back to 48 Pine Street and arrested the defendant. At the police station, the defendant was read his Miranda rights and agreed to speak with Officer Bryant. He told Officer Bryant that he went to Cronin's Market to buy cigarettes and cash "a couple of lottery tickets" worth one hundred dollars. The defendant could not remember where he had acquired the lottery tickets or how long he had held them before cashing them.
The owner of Cronin's Market testified that the security video was shown to police the next day, while Officer Bryant implied that he viewed the tape immediately while he was on the scene.
Officer Bryant testified that he was "pretty sure, I knew who it was, yes," recognizing the person on the surveillance tape.
The record does not reflect how Officer Bryant knew the defendant or the defendant's address.
The defendant was charged with breaking and entering in the daytime with intent to commit a felony and putting the victim in fear in violation of G. L. c. 266, § 17. At trial, the defendant did not testify or put on evidence. The jury found the defendant guilty of the lesser included offense of breaking and entering in the daytime with intent to commit a felony. This appeal followed.
Discussion. On appeal, the defendant challenges the sufficiency of the evidence to sustain his conviction, argues that the judge erred in providing the jury with an identification instruction, and claims that the prosecutor mischaracterized the evidence in his opening and closing arguments. We review each claim in turn.
a. Sufficiency of the evidence. When addressing a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Evidence of a defendant's guilt "may be entirely circumstantial." Commonwealth v. Linton, 456 Mass. 534, 544 (2010). The inferences drawn by a jury "need only be reasonable and possible and need not be necessary or inescapable." Id., quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
Here we are satisfied that the Commonwealth met its burden and introduced sufficient evidence to support the defendant's conviction. The defendant matched Steinfeld's physical description of the intruder, and as a fellow resident of 48 Pine Street, the defendant had the opportunity to know that Steinfeld attended the weekly breakfast downstairs and would be absent from his room. From there, no logical leap is required to conclude that Steinfeld's ticket was the one cashed at Cronin's Market, given the proximity in time and place to the theft and the unique identifying numbers of the lottery ticket. The defendant himself admitted to cashing a lottery ticket or tickets worth one hundred dollars at Cronin's Market that morning. He was unable to specify where or how he acquired his tickets. Viewing the circumstantial evidence in the light most favorable to the Commonwealth, there was no error in denying the motion for a directed verdict.
b. Identification instruction. The defendant next argues that it was error for the judge to state that Officer Bryant had identified the defendant and then give the jury an identification instruction, because Officer Bryant was only "pretty sure" that he recognized the man in the surveillance tape but never specifically identified that man as the defendant. Because the defendant did not object to the identification instruction at trial, and in fact was the party that requested that instruction, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Russell, 439 Mass. 340, 351 (2003).
We discern no error. The defendant's unsubstantiated argument seizes on Officer Bryant's uncertain phrasing. However, the ambiguous portion of Officer Bryant's answer was preceded by an affirmative "we were" and followed by a clear "yes." Although Officer Bryant did not explicitly say that the defendant was the man in the surveillance video, that conclusion was implicit in his testimony. Tellingly, Officer Bryant specifically sought out the defendant to speak with him after viewing the surveillance tape. The judge was well within his bounds to read the jury an identification instruction, which permitted the jury to reject Bryant's identification of the defendant, and thus we conclude no substantial risk of a miscarriage of justice occurred by his doing so.
The transcript reflects the following exchange: Prosecutor: "And did you -- at the time that you viewed them, were you able to recognize the individual in those photos?" Bryant: "We were -- I was pretty sure I knew who it was, yes."
c. Prosecutor's statements. Finally, the defendant claims that the prosecutor "misstated" evidence in his opening statement and closing argument. Specifically, he takes umbrage with the prosecutor saying the following in the opening statement:
"One of the officers watched [the security camera video]. An officer who's familiar with the building. And he saw someone. He saw someone cashing that ticket, and he recognized him. He recognized him as a man he knew from past encounters, Leslie Torres, the defendant before you today."The defendant echoes his concerns raised previously, asserting that Officer Bryant never identified the defendant, and that the prosecutor's characterization "taints" the defendant with prior bad act evidence. Additionally, the defendant challenges six separate statements in the prosecutor's summation.
He specifically argues that the prosecutor (1) stated that the manager of Cronin's Market showed the police the video "for the time period the police were looking for who cashed the ticket" when there was no evidence of the timing of the video; (2) stated that only one one hundred dollar ticket was cashed at Cronin's that morning, when the store manager did not specify how many tickets were cashed; (3) stated that the defendant told the police, "Yes, I cashed a [one hundred dollar] ticket" when the evidence was ambiguous as to the number and value of the tickets he cashed; (4) stated that Steinfeld left for breakfast sometime after 8 A.M., when there was no evidence as to when he left; (5) stated that Steinfeld had claimed the intruder had a beard, when Steinfeld's testimony was unsure; and (6) stated that Steinfeld saw the defendant in his room, when he never identified the defendant as the intruder.
Because the defendant failed to object to any of these statements at trial, we review to determine whether any of the claimed errors, if improper, created a substantial risk of a miscarriage of justice. See Commonwealth v. Veiovis, 477 Mass. 472, 488 (2017). We determine that no such risk existed here. As discussed above, a reasonable view of the evidence would allow the jury to conclude that Officer Bryant had identified the defendant as the individual in the video. Likewise, although the challenged portion of the prosecutor's opening was probably best left unsaid, a juror would be free to rationalize a number of noninculpatory reasons that Officer Bryant knew the defendant. If any of the statements from the closing argument were improper, their weight was insubstantial and did not materially affect the outcome of the trial.
The Commonwealth has the right, in its closing argument, to marshal evidence in its favor and to suggest reasonable inferences to the jury. See Commonwealth v. Brown, 477 Mass. 805, 821 n.7 (2017). We also note that the judge instructed the jury that closing arguments are not evidence. See Commonwealth v. Salazar, 481 Mass. 105, 117 (2018); Commonwealth v. Brown, 479 Mass. 600, 611 (2018).
Judgment affirmed.
By the Court (Massing, Desmond & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 23, 2019.