Opinion
No. 12–P–1794.
07-01-2016
COMMONWEALTH v. Carlos VALLEJO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After indictments related to an armed home invasion were returned against the defendant, Carlos Vallejo, a joint jury trial with the codefendant, Richard Melendez, commenced in the Superior Court. On the eighth day of trial, Melendez stood up and flipped the counsel table over, in front of the jury. After the Commonwealth rested the next day, the judge severed the defendant's trial from that of Melendez and declared a mistrial with respect to Melendez's case. The jury convicted the defendant on all counts: armed home invasion, aggravated rape, and four counts each (one per victim) of armed robbery, assault and battery by means of a dangerous weapon, and kidnapping.
On appeal, the defendant argues that (1) the admission of recordings of Melendez's telephone calls from jail to third persons including his sister violated the defendant's constitutional right to confrontation; (2) the recordings of telephone calls made by Melendez to the defendant from jail were not properly authenticated; (3) the Commonwealth's failure to provide an expert's report during discovery was prejudicial; and (4) the judge's failure to declare a mistrial in the defendant's case or to give an adequate curative instruction regarding the flipping of the table by Melendez created a substantial risk of a miscarriage of justice.
This is a consolidated appeal from the denial of the defendant's motion for new trial and from his convictions. The defendant has not, however, pursued the single issue raised in the motion for new trial, namely that his constitutional right to confrontation was violated when the deoxyribonucleic acid (DNA) analyst who testified to the DNA results had not, himself, conducted the analysis. The decision, confirmed by counsel at oral argument, not to raise the issue was prudent given that the evidence makes clear the testifying analyst had supervised the testing, had conducted his own independent review of the scientific data, and was presenting his own opinion at trial; thus, there was no confrontation clause violation. See Bullcoming v. New Mexico, 564 U.S. 647, 657–658 (2011) ; Commonwealth v. Munoz, 461 Mass. 126 (2011).
We summarize the Commonwealth's evidence together with the fair inferences that the jury could have drawn. On September 23, 2003, at about 1:30 A.M., the defendant, Melendez, and a third assailant broke into the first floor home of Rafael Herrera (Herrera) through a bathroom window and once in the house communicated with one another by “walkie-talkie.” The defendant and Melendez entered the bedroom where Herrera's son, Emilio Herrera Diaz (Emilio), was asleep with his girl friend, Elena, while the third assailant went into Herrera's bedroom where he was sleeping with his wife, Marina Diaz (Diaz). The intruders woke them and held them at gunpoint. The assailants took Emilio's clothes and tied up Elena, Emilio, and Herrera with telephone cables or wires from the house and held Diaz's hands behind her back. When they were unsuccessful in convincing Emilio to turn over his drugs, they ransacked the apartment, collecting jewelry, cash, checks, and cellular telephones (cell phones), and they demanded the keys to a motorcycle and a Mercedes automobile. Melendez went back and forth between the two bedrooms, while the defendant remained with Elena and the third assailant appeared to stay with Herrera and Diaz.
There was some evidence to suggest that another accomplice may have remained outside the home, presumably as a lookout.
A pseudonym.
The defendant began to touch Elena on her vagina and her “behind .” He held a gun to her eye and put his finger in her vagina. He also put his mouth on her breast and his mouth and tongue on her vagina and her anus. Elena saw the defendant stand up next to the bed and begin to masturbate, but she did not see him ejaculate. He was interrupted by Diaz, who had gotten up to go the bathroom, and the defendant ran to see what the noise was and then left. The assailants escaped with the bounty they had collected and the two vehicles.
Elena said the light from the bathroom was on during at least part of what she described as a thirty-minute assault, illuminating her attacker and Melendez's profile. While the evidence suggested that some if not all of the assailants entered the house with masks on, Elena testified that the defendant did not have a mask when he assaulted her. This testimony was also consistent with the fact that the described sexual assault would likely have been impeded by a mask.
Once the culprits were out of the home, Elena freed herself and called 911. Police arrived and an ambulance was called. A medic began attending to Elena. Police issued a broadcast to be on the lookout for three Hispanic assailants and the Mercedes, including its registration number.
A Mercedes matching the description was stopped by police at about 2:24 A.M. and Melendez was identified as the driver and only occupant in the vehicle. Police conducted a show-up identification while Elena was still in the ambulance and she identified Melendez as the one who had taken the Mercedes keys. Melendez was arrested, and the cell phone recovered from him during booking was the one belonging to Herrera.
After Elena identified Melendez, she was transported to the hospital where a nurse conducted a “rape kit” examination. The material collected included swabs of the victim's right breast, and of her genital and anal area. The rape kit was sent to the Boston crime laboratory where preliminary tests of the breast and genital swabs indicated they were positive for amylase, an enzyme found in saliva. Those samples were submitted for DNA testing.
The records for Herrera's cell phone discovered on Melendez during booking revealed that six calls had been made on that phone immediately after the crime, including two calls to Melendez's sister; two calls to a number Melendez later used in jail to contact an individual named “Carlitos”; and one call to the cell phone used by the defendant's girl friend.
Because Melendez was held in jail pending trial, police obtained the inmate telephone call records held by the Department of Correction for the six-month period following his arrest. They discovered the recordings of six telephone calls Melendez placed to his sister and other third parties, and one recording of a call Melendez made to “Carlitos” twelve days after the crime. The calls to third parties included statements by Melendez that inculpated Carlitos, and the call with Carlitos included Carlitos's own statements that implicated him in the crime.
Transcripts of the recordings, parts of which had to be translated from Spanish, were provided to the jury when the recordings were played, and were then collected. During a call to his sister, Melendez said that “Carlitos was the one that ... [d]id that shit to her, man,” and that Carlitos “approved the move, ... [i]f he wouldn't approved the move, I would've never jumped in the fucking truck.... Let's split the money up. Let's keep it real.... Carlitos ... [h]e's the motherfucker got a hundred thousand dollars in property.... I'm gonna call him. [Tell him] to get me a lawyer....” The statements by Carlitos are outlined separately in our discussion of that issue.
Police eventually located the defendant and obtained a buccal swab from him. DNA testing revealed that characteristics at sixteen locations detected in the DNA sample from the victim's breast swab were identical to characteristics found at the same sixteen locations on the defendant's DNA. Testimony further indicated that only one in 2.9 billion individuals are expected to have characteristics consistent with the profile detected on the breast swab. The genital swab revealed a partial DNA profile of six characteristics of the possible sixteen characteristics used by the laboratory. Of those six, all were consistent with the defendant's DNA profile at the same six locations.
Elena identified the defendant in court as the assailant who had sexually assaulted her. She also identified Melendez as one of the other intruders. None of the other victims could identify the intruders.
The record reflects that Elena made an extrajudicial identification of the defendant in April, 2004. The police showed her a number of photographs, one at a time, from which Elena identified the photograph depicting the defendant as a person who looked like her assailant, but she indicated that “she would have to see height, size and facial hair.” The judge, somewhat inexplicably, excluded this evidence on the basis of the defendant's objection that he had not previously been provided the photographs by the Commonwealth despite the prosecutor making clear that the identification evidence had been presented to the grand jury and the photographs introduced as an exhibit. See, e.g., Commonwealth v. Montez, 450 Mass. 736, 757 (2008) (such extrajudicial identification is admissible as substantive evidence); Commonwealth v. Ferreira, 77 Mass.App.Ct. 675, 678 (2010) (where victim said he was eighty percent sure of his choice of photograph of defendant, any inconsistencies or contradictions in identification would affect weight and credibility of evidence, not its admissibility). Cf. Commonwealth v. Collins, 470 Mass. 255, 261–262 (2014) (outlining prospective requirement that where an eyewitness has not participated before trial in a nonsuggestive identification procedure, or has participated but did not make an unequivocal identification of the defendant, the in-court identification may only be admitted where there is a good reason for its admission).
The defendant called no witnesses and presented his case through cross-examination and argument. The thrust of the defense was that the case was built on guesswork and speculation. Specifically, the defense maintained that Carlitos was never identified as the defendant; that Elena only identified the defendant in court, where it was easy to point him out; and that her identification was unreliable because the evidence showed that each intruder was wearing a mask. The defense claimed that Melendez is an angry, “loose cannon,” who does not know what he is saying. Finally, the defense suggested that the DNA evidence was unreliable because there was no proof that the testing had been done properly or the samples properly stored, and counsel argued, “what we do know is that the [defendant's] DNA profile is not on the genital swab” (emphases added).
Although the Commonwealth did not object, the assertion by the defendant that the victim had only identified the defendant once, in court, is inaccurate, see note 6, supra, as is the suggestion that the evidence shows the defendant's DNA was not on the genital swab. See Commonwealth v. Carroll, 439 Mass. 547, 555 (2003) (prosecutor cannot “exploit the absence of evidence that had been excluded at his request”). Contrast Commonwealth v. Cole, 473 Mass. 317, 333 (2015) (prosecutor drew fair inference from DNA evidence).
--------
Discussion. 1. Jail calls to third parties. We agree with the defendant that the admission of the recordings of Melendez's telephone calls to third parties while he was in jail violated the defendant's confrontation rights and that it was error for the prosecutor to have relied on these calls to argue that there was a “strong connection” between these two men. We conclude, however, that the error was harmless beyond a reasonable doubt. See Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010). Proof of the defendant's guilt was overwhelming where the evidence showed that the rape victim identified the defendant in court as the assailant who put his mouth on her breast and that the probability of the DNA swabbed from her breast being that of some person other than the defendant was one in 2.9 billion.
2. Jail call to Carlitos. The defendant argues that the call and transcripts of the call between Melendez and Carlitos should not have been admitted because the voice of Carlitos was not authenticated as that of the defendant. In addition to the speaker being identified as Carlitos, a name very similar to the defendant's first name, Carlos, other confirming circumstances tended to authenticate the identity of the individual as the defendant, particularly his comment about the rape. See, e.g., Commonwealth v.. Howard, 42 Mass.App.Ct. 322, 325 (1997) (when voice is not recognized by witness as that of defendant, authentication must derive from other confirming circumstances); Commonwealth v. Wojcik, 43 Mass.App.Ct. 595, 606–607 (1997) (same); Commonwealth v. Oppenheim, 86 Mass.App.Ct. 359, 367–368 (2014) (apart from self-identification, authentication by additional confirming circumstances must be shown by preponderance of evidence). For example, when Melendez told Carlitos that detectives had come to see him, Carlitos told him, “Don't get into trouble because ... you're making trouble,” and then said, “all you did was, look, ... that you found the car.... You took the car.” He admonished Melendez not to “get desperate,” that “I'm here ... for you.” Carlitos told Melendez, “I'm selling the motorcycle. Whoever gives me ten thousand pesos for it, to, to get you the lawyer....” In response to a discussion about what happened “[t]hat night,” Carlitos indicated that “the first one who wanted to leave the house was him” and then told Melendez, “Let's not talk about anything else, it's all right.” Carlitos rebuffed Melendez's concern that “[t]hey got me [Melendez] with rape” by telling him, “That's a lie.”
The details articulated by Carlitos in this conversation plainly suggest that he was a participant in the home invasion with Melendez, including being aware that Melendez could not have raped the victim because he did, as well as knowing Melendez took the car and that a motorcycle was stolen. Consequently, there is sufficient evidence to support a determination that Carlitos is the defendant, and even if he is not, that he was a coventurer with Melendez in the joint criminal enterprise and was instructing Melendez not to cooperate. As such the statements were properly admitted as a party-opponent admission and in furtherance of a joint venture. See, e.g., Commonwealth v. Beckett, 373 Mass. 329, 340 (1977) (statement was in furtherance of joint venture when made in course of conversation designed to encourage coventurer not to disclose information regarding crime to authorities); Commonwealth v. Marrero, 436 Mass. 488, 493 (2002) ; Commonwealth v. Lester, 70 Mass.App.Ct. 55, 61–63 (2007).
3. Expert's report. The defendant argues that he was prejudiced by the failure of the Commonwealth to provide the report of Kevin Kosiorek in advance of trial, pursuant to its discovery obligations. Assuming without deciding that the objection to Kosiorek's testimony was preserved, and further assuming that the Commonwealth failed to provide the report, the defendant was not prejudiced. Kosiorek merely conducted the preliminary tests that revealed the presence of amylase and, upon finding that enzyme, sent the swabs to the DNA unit for further testing. The defendant claims that had counsel been timely given the report, “the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed.” Commonwealth v. Wilson, 381 Mass. 90, 114 (1980). Tellingly, however, in the intervening ten years since the trial, the defendant has failed to show how having the report in advance of trial would have created such doubt, an exceptionally difficult showing to make in this case where the admission of the independently conducted DNA test was so highly incriminating. See Commonwealth v. Cole, 473 Mass. 317, 331 (2015).
4. Mistrial. Contrary to the defendant's argument, there was no substantial risk of a miscarriage of justice when the judge failed to declare a mistrial, sua sponte, after the codefendant flipped counsel's table over in front of the jury. Declaring a mistrial is a matter within the judge's discretion when “there is ‘manifest necessity’ for a mistrial because ‘the ends of justice cannot be attained without discontinuing the trial.’ “ Commonwealth v. Tennison, 440 Mass. 553, 558 (2003), quoting from A Juvenile v. Commonwealth, 392 Mass. 52, 55 (1984).
Here, the defendant was twice asked if he wished to proceed and indicated once through his attorney and once himself that he wanted the trial to continue. The decision was a sound one. Counsel had obtained the exclusion of Elena's extrajudicial identification of the defendant, which would not likely be excluded at a second trial, and counsel was able to impugn Melendez's credibility as the result of his violent behavior in the courtroom. Moreover, the DNA evidence, unlike a witness's memory, was not likely to deteriorate over time and was virtually certain to be admitted at a second trial. Finally, the judge's instruction—which included the admonition to the jury that “You're not to guess, speculate, draw any inferences, anything from the fact that Mr. Melendez is not here or that his case is not being presented to you”—adequately conveyed to the jury that they were not to use Melendez's outburst as evidence of the defendant's guilt.
Judgments affirmed.
Order denying motion for new trial affirmed.