Opinion
10-P-1577
12-06-2011
COMMONWEALTH v. YURI Y., a juvenile.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Juvenile Court jury convicted the juvenile of larceny over $250 and the trial judge committed him to the Department of Youth Services until his eighteenth birthday. On appeal, he argues that the judge abused his discretion in allowing in evidence certain surveillance photographs. In addition, he claims that the Commonwealth improperly introduced in evidence inadmissible hearsay resulting in a substantial risk of a miscarriage of justice and that he received ineffective assistance of counsel when counsel failed to object to the hearsay. We find no merit in either claim and, accordingly, affirm the adjudication of delinquency.
Background. A jury could have found the following facts. On March 17, 2009, Brendan Powers, T-Mobile Medford store floor manager, approached the juvenile and his companion in the store and engaged the pair in conversation for about twenty minutes about certain telephones on display. Thereafter the juvenile and his companion left the store. Approximately four hours later Powers saw the juvenile and his companion walk back into the store. Each one grabbed a telephone that cost between $300 and $450, then ran out the door. After the juvenile left the store, Powers found wire cutters on the floor near the display case. The theft took about ten to fifteen seconds to accomplish.
On March 21, 2009, Powers observed the juvenile and his companion riding their bicycles past the front of the store to a nearby Walgreens store. Powers called the police, who dispatched officers to the scene. The officers detained the two inside the Walgreens store and secured a pair of orange-handled wire cutters from the juvenile. Powers was brought to Walgreens and identified both the juvenile and his companion as having committed the theft of the two telephones on March 17, 2009. In making the identifications, Powers noted that, like the individual who stole the telephone on March 17, 2009, the juvenile in Walgreens had two stripes shaved into his eyebrows and had similar mannerisms when speaking; both were 'low-browed' with 'more of a stern look' and had 'a little flatter nose.'
At trial, the Commonwealth introduced four surveillance photographs depicting two youths entering the store where the thefts of the two telephones occurred. Powers testified that the photos were true and accurate photographs of the juvenile and his companion walking into the store on the day of the theft. He further testified that the surveillance camera was located at the front of the store and that the images had been sent by electronic mail (e-mail) to him by loss prevention personnel.
1. Surveillance photographs. The juvenile claims that the judge erred in allowing the surveillance photographs in evidence because they were not authenticated. Specifically, the juvenile claims that the images captured by the surveillance camera contained date and time stamps in the upper margins of the photographs which should have been redacted because the date time and stamp were not authenticated by Powers or any other Commonwealth witness. We disagree. The authenticity of a photograph is a preliminary question of fact for resolution by the trial judge, Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646 (2002), and, the judge's preliminary determination concerning authenticity is conclusive unless there is an abuse of discretion.
To find an abuse of discretion there must be no evidence to support the judge's preliminary determination and a reviewing court must determine 'that no conscientious judge, acting intelligently, could honestly have taken the view expressed by [him].' Commonwealth v. Anderson, 445 Mass. 195, 209 (2005), quoting from Commonwealth v. Jaime, 433 Mass. 575, 579 (2001). We find no such abuse.
2. Hearsay. The juvenile gave a false first name when he was booked. At trial, Medford Police Lieutenant Mark Rudolph testified that, at the booking, the juvenile gave his first name as John, and that, several days later, he (Rudolph) spoke to the arresting officer and learned that the juvenile's real first name was K. Rudolph gave the following testimony, without objection: 'I found out that the arresting officer had found out a different name and had taken out a complaint against him for filing a false name. . . . I found out that the individual's real first name was K.' This testimony allowed the Commonwealth to argue consciousness of guilt.
Even if we were to assume, which we do not, that error occurred, it was harmless. The main issue at trial was the strength of the identifications made by the Commonwealth's main witness, who had already identified the juvenile by the time he was booked. The fact that the juvenile gave police a false first name would have been of minimal importance to the jury's determination of the accuracy of the identification of the juvenile.
Finally, since the juvenile has failed to establish that the error created a substantial risk of a miscarriage of justice, his ineffective assistance of counsel argument must fail. See Commonwealth v. Whitman, 430 Mass. 746, 757 (2000), quoting from Commonwealth v. Curtis, 417 Mass. 619, 624-625 n.4 (1994) ('If an omission of counsel does not present a substantial risk of a miscarriage of justice . . . there is no basis for an ineffective assistance claim under either the Federal or the State Constitution').
Adjudication of delinquency affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),