Opinion
14-P-347
12-16-2015
COMMONWEALTH v. PATRICK WISWALL.
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, Patrick Wiswall, appeals from his convictions of breaking and entering in the daytime with the intent to commit a felony, G. L. c. 266, § 18, and larceny of property valued under $250, G. L. c. 266, § 30, and from the denial of his motion to vacate the breaking and entering conviction. He argues that his motion to suppress an out-of-court photographic identification was erroneously denied, and that the trial judge incorrectly instructed the jury on the "intent to commit a felony" element of the breaking and entering charge. We affirm.
Motion to suppress photographic identification. Officer Carl Brooks, who was off duty when he witnessed the defendant prior to and after the crime took place essentially across from his home, identified the defendant from a photograph he noticed on Detective Paul Mackowski's desk when Brooks stopped by the detective division unannounced to check on the investigation. The defendant asserts that this identification "procedure" was impermissibly suggestive.
"A photographic identification procedure is constitutionally invalid if the procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Commonwealth v. Holland, 410 Mass. 248, 253 (1991), quoting from Commonwealth v. Thornley, 406 Mass. 96, 98 (1989). At issue "is not whether the witness might have been mistaken, but whether any possible mistake was the product of improper suggestions by the police." Commonwealth v. Watson, 455 Mass. 246, 251 (2009).
"For a motion to suppress a photographic identification to succeed, 'the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law.'" Id. at 250, quoting from Commonwealth v. Miles, 420 Mass. 67, 77 (1995). We do not disturb the motion judge's factual findings unless clearly erroneous, especially where credibility of witnesses is involved, but we independently determine the correctness of the judge's application of legal principles to the facts found. Watson, supra at 250.
Brooks and Mackowski both testified at the suppression hearing. The motion judge (who was also the trial judge) found that Brooks's arrival in the detective division was unplanned and unexpected, and that Mackowski did not call Brooks's attention to the photograph lying on Mackowski's desk. We detect no error in the judge's conclusion that Brooks's encounter with the defendant's photograph was accidental and not orchestrated by the police. As in Commonwealth v. Cavitt, 460 Mass. 617, 631-633 (2011), where the witness noticed the defendant's photograph on a computer screen as he was being led out of the detective bureau after an unsuccessful attempt to identify the defendant from a series of photographs he viewed on another computer terminal, Brooks's identification "was not the product of unnecessarily suggestive police procedures that were conducive to a mistaken identification."
Jury instruction. The defendant contends that the trial judge erroneously instructed the jury, with respect to the crime of breaking and entering in the daytime with the intent to commit a felony, "that the crime of larceny is a felony." The defendant was also charged with the felony of larceny of property of value exceeding $250, but the jury convicted him of the lesser included offense of larceny under $250, a misdemeanor. He argues that the instruction compelled the jury to find that he possessed the requisite intent, even if the jury believed he intended only to commit a misdemeanor.
Because the defendant did not object to the jury instruction, "we must determine whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). There was no such risk here. Once the jury concluded "(as they evidently did) that the defendant had entered the [dwelling] with an intent to steal, they were not required to conclude that he had intended to limit his theft to property under $250 in value." Commonwealth v. Hill, 57 Mass. App. Ct. 240, 249 n.6 (2003). To the contrary, the evidence suggests that the defendant believed he had stolen valuable jewelry. Though the jury ultimately concluded that the value of the property stolen did not exceed $250, such a result is not inconsistent with finding that the defendant intended to commit felony larceny when he entered the dwelling. See Commonwealth v. Soares, 51 Mass. App. Ct. 273, 278 (2001).
He first raised this issue in a motion to vacate the conviction, which the trial judge denied.
The jeweler to whom the defendant attempted to sell the stolen watch and jewelry declined to purchase the items "because they had no value."
Furthermore, on the facts of this case, the trial judge's instruction that "the crime of larceny is a felony" was not necessarily erroneous because "larceny in a building is a felony regardless of the value of the items stolen." Commonwealth v. Cruz, 430 Mass. 182, 188 (1999). Contrast Hill, supra at 248-249 (erroneous instruction as to intent concerned stealing from vehicles). The trial judge went on to differentiate between larceny over $250 and larceny under $250 when instructing on the crime of larceny itself. Had the jury been instructed that the former is a felony and the latter is not, we are confident that they would have found the required intent. We are persuaded that any error did not "'materially influence[]' the guilty verdict." Alphas, supra, quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
Judgments affirmed.
Order denying motion to vacate conviction affirmed.
By the Court (Milkey, Carhart & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 16, 2015.