Opinion
No. 10–P–1366.
2012-05-22
COMMONWEALTH v. Joel LEMOS.
By the Court (KATZMANN, SIKORA & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Joel Lemos, was found guilty of armed assault with intent to murder, mayhem, assault and battery by means of a dangerous weapon causing serious injury, malicious explosion, wilful placing of explosives, possession of an infernal machine, and malicious burning of personal property. These convictions were based on a fire that was set on the roof of the Honda automobile owned by the defendant's ex-girlfriend, Cheri Ellis, and an explosive which was placed in a second Honda automobile owned by Jose Fernandes, Ellis's new boyfriend, that exploded and caused Fernandes grave injuries. The incidents occurred on the same night while both cars were parked in front of Fernandes's house. The defendant now raises a variety of legal challenges to his convictions. We affirm except as to his convictions of assault and battery by means of a dangerous weapon and possession of an infernal machine, both of which we order dismissed as duplicative of other charges. Discussion. 1. Duplicative convictions. As the parties agree, assault and battery by means of a dangerous weapon causing serious injury under G.L. c. 265, § 15A( c )(i), is a lesser included offense of mayhem under G.L. c. 265, § 14. See Commonwealth v. Martin, 425 Mass. 718, 721–723, 683 N.E.2d 280 (1997). As the convictions on both offenses were based on a single act, the conviction of assault and battery by means of a dangerous weapon is duplicative and must be vacated. Ibid.
Similarly, as the Commonwealth concedes, possession of an infernal machine under G.L. c. 266, § 102A, is a lesser included offense of wilful placing of explosives under G.L. c. 266, § 102. See Commonwealth v. DeCicco, 44 Mass.App.Ct. 111, 125–126, 688 N.E.2d 1010 (1998). As the convictions on these two counts were based on a single act, the conviction of possession of an infernal machine must be vacated as duplicative. Ibid.
Because the sentences on the two convictions of malicious burning of personal property were ordered to be served “concurrent with” the sentence on the conviction of assault and battery by means of a dangerous weapon, which we vacate, the defendant must be resentenced on the former two convictions.
2. Motion to suppress. The defendant argues that the Honda key and ohmmeter found in his living space should have been suppressed because they were seized without a warrant in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The defendant concedes that the police officer who seized the evidence had a lawful right to be in the defendant's living space, which was a small area behind a couch in the living room of an apartment, because of the consent of the apartment's owners and primary residents. However, he contends that the objects seized were not of an immediately incriminating nature and thus the officer could not lawfully seize them under the plain view doctrine. In addition, the defendant contends that the officer also could not avail himself of the plain view doctrine because he had no lawful right to open the cigar box which contained the ohmmeter.
“Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Commonwealth v. Hinds, 437 Mass. 54, 61, 768 N.E.2d 1067 (2002), quoting from Commonwealth v. D'Amour, 428 Mass. 725, 730–731, 704 N.E.2d 1166 (1999). Evidence that is not inherently incriminatory “may be seized only if the officers recognize it as plausibly related to criminal activity of which they already were aware.” Id. at 731, 704 N.E.2d 1166.
As a preliminary matter, the officer was able to observe a multipurpose tool in the cigar box because the box was propped open. The officer was warranted in opening the box fully and seizing the tool because, in the context of construction of homemade bombs, its incriminating nature was immediately apparent. When the officer opened the cigar box to retrieve the tool, he was in a lawful position in which to observe the ohmmeter. See, e.g. Commonwealth v. Lett, 393 Mass. 141, 147–148, 470 N.E.2d 110 (1984).
As for the immediately incriminating nature of the evidence seized, the officer was aware that homemade explosives had been set in a Honda and that the defendant was the primary suspect. In this context, the Honda key was plausibly related to the defendant's ability to access the trunk of the car in which the explosive was planted and the ohmmeter was plausibly related to his ability to test the electrical circuit involved in the explosive. The officer could thus lawfully seize them under the plain view doctrine.
3. Confrontation clause violation regarding tape. The Commonwealth correctly concedes that the admission of testimony by an expert regarding another, nontestifying expert's forensic analysis of medical tape recovered from the trunk of Fernandes's car and that other expert's conclusions therefrom violated the defendant's Sixth Amendment right to confrontation. See Commonwealth v. Barbosa, 457 Mass. 773, 784, 933 N.E.2d 93 (2010). Since the defendant did not object to this testimony at trial, we review for a substantial risk of miscarriage of justice. Id. at 792, 933 N.E.2d 93. Given the strength of the remaining evidence against the defendant, discussed more fully in the next section, and the expert's admission on cross-examination that the tape at issue was widely distributed, there was no substantial risk of a miscarriage of justice.
4. Sufficiency of the evidence. The defendant claims that there was insufficient evidence to prove that he was the perpetrator of any of the crimes at issue beyond a reasonable doubt. In particular, he claims that there was insufficient evidence to indicate that he was the person who set the fire on the roof of Ellis's car or placed the explosive in Fernandes's car. On a claim of insufficiency of the evidence, we determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis original). “Evidence of a defendant's guilt may be primarily or even wholly circumstantial.” Commonwealth v. Blackmer, 77 Mass.App.Ct. 474, 483, 932 N.E.2d 301 (2010).
A. Malicious burning of personal property. The defendant claims that the only two pieces of evidence linking him to the fire started on the roof of Ellis's car are (1) the chemical similarity between the orange plastic container found melted on the car roof and an orange Tide container possessed by the defendant; and (2) the gasoline residue found on the car roof and on gloves possessed by the defendant. However, he ignores several additional pieces of evidence: (1) his motive to commit the crime, as established by his reaction to Ellis's decision to end their relationship and enter into a relationship with Fernandes, including threats made against both Ellis and Fernandes; (2) his means and opportunity to commit the crime, as established by his unaccounted for whereabouts from 1:00 A.M. to 10:00 A.M. on the day of the crime and his history as a member of the Brazilian Military Police, where he was trained in explosives; (3) his consciousness of guilt, as shown by an unsuccessful attempt to get a third party to lie about his whereabouts; and (4) his statement to the police after the crime that his intent had been to scare Ellis and not to hurt anyone. Finally, if the jury were to conclude that the defendant planted the explosive in Fernandes's car, the similarity of the two crimes and their proximity in time and space strengthens the inference that the defendant also committed the malicious burning. Taken together, the physical and circumstantial evidence was sufficient for a rational jury to conclude beyond a reasonable doubt that it was the defendant who set fire to the roof of Ellis's car.
B. Placing of the explosive device. The defendant further contends that there was insufficient evidence to convict him of wilful placing of explosives and mayhem because there was insufficient evidence that he was the person who placed the explosive in Fernandes's car. In addition to the circumstantial evidence discussed above, there was a large body of physical evidence linking the defendant to the explosives, including the Honda key and ohmmeter found in the defendant's possession, prior observations of the defendant in possession of components of the explosive device, and the key to the lock on the explosive device which the defendant gave to the owner of the apartment in which he was staying. Such evidence is sufficient for a rational jury to find beyond a reasonable doubt that the defendant set the explosive device in Fernandes's car.
5. Bowden jury instruction. The defendant takes issue with the trial judge's denial of his request to give an instruction regarding the adequacy of the police investigation under Commonwealth v. Bowden, 379 Mass. 472, 399 N.E.2d 482 (1980). See Mass. G. Evid. § 1107 (2011). However, as the defendant effectively admits, “the giving of [a Bowden ] instruction is never required.” Commonwealth v. Avila, 454 Mass. 744, 767, 912 N.E.2d 1014 (2009), quoting from Commonwealth v. Williams, 439 Mass. 678, 687, 790 N.E.2d 662 (2003).
6. Proof beyond a reasonable doubt jury instruction. Finally, the defendant argues that the trial judge acted erroneously when he did not restate the Commonwealth's burden of proving each element of the crime beyond a reasonable doubt during his instructions for assault with intent to murder, mayhem, and malicious burning of property. A judge must communicate to the jury that the Commonwealth is required to prove every element of a charged offense beyond a reasonable doubt. Commonwealth v. Palacios, 66 Mass.App.Ct. 13, 16, 845 N.E.2d 382 (2006). When evaluating whether the judge did so, the test is how “a reasonable juror could have interpreted the instruction.” Commonwealth v. Pickles, 393 Mass. 775, 778, 473 N.E.2d 694 (1985). Because there was no objection by the defendant in this case, we review for whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Pittman, 76 Mass.App.Ct. 905, 906, 923 N.E.2d 1083 (2010).
Here, the trial judge gave a thorough, general instruction regarding the burden of proof in which he indicated that the Commonwealth had to prove each element of the charged crimes beyond a reasonable doubt. In addition, the trial judge stated the substantial equivalent of “in order to convict the defendant, the Commonwealth must convince you, the jury of the following [number] of elements beyond a reasonable doubt” before each of the instructions with which the defendant takes issue. In the context of the judge's general instruction about the Commonwealth's burden of proof, the jury would have clearly understood that the Commonwealth must prove each element of the relevant crimes beyond a reasonable doubt in order to warrant a conviction. There is no basis for the defendant's claim that the jury could have been misled about its duty to return a verdict of not guilty if one or more of the essential elements was not proved beyond a reasonable doubt. There was no error, let alone a substantial risk of miscarriage of justice.
On the charges of assault and battery by means of a dangerous weapon causing serious bodily injury and of possession of an infernal machine, the judgments are vacated, the verdicts are set aside, and the indictments are dismissed. The remaining judgments are affirmed. The defendant is to be resentenced on the convictions of malicious burning of personal property.
So ordered.