Opinion
No. 11–P–1274.
2013-09-27
COMMONWEALTH v. Everett LOMAX.
By the Court (RAPOZA, C.J., WOLOHOJIAN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In these consolidated appeals, the defendant appeals from his convictions of breaking and entering with intent to commit a felony, larceny over $250, and being a habitual criminal, and from the denial of his motion for postconviction relief based on the discovery of “new evidence.” We affirm.
Citing Commonwealth v. Renaud, 81 Mass.App.Ct. 261 (2012), the defendant first argues that the evidence was insufficient to permit the jury to find beyond a reasonable doubt that he was the person who broke into the victims' house.
It is true, as the defendant argues, that in Renaud, we held that the presence at the crime scene of an electronic bank transfer (EBT) card bearing the defendant's name—without more—was insufficient to conclude that the defendant had been in possession of it during the commission of the crime. See id. at 264 (“[I]dentity cannot be deduced beyond a reasonable doubt solely from ownership of an item connected with a crime”) (citation omitted). See also Commonwealth v. Morris, 422 Mass. 254, 257 (1996) (“If ... the only identification evidence is the defendant's fingerprint at the crime scene, the prosecution must prove beyond a reasonable doubt that the fingerprint was placed there during the crime”). It is also true that the cell phone at issue in this case bears several of the characteristics of the EBT card at issue in Renaud: namely, prevalent use in contemporary society, portability, and the ability to be easily lost or misplaced. 81 Mass.App.Ct. at 261. That said, the facts of this case (viewed as they must be under the standard set out in Commonwealth v. Latimore, 378 Mass. 671, 676–677 [1979] ), distinguish it from Renaud and provide sufficient basis for the jury to conclude beyond a reasonable doubt that it was the defendant who dropped the cell phone inadvertently at the crime scene during the break-in.
The crime took place while the victims were at a local mall for their daily walk, which they took at approximately the same time every morning. The defendant lived nearby with no trees to obstruct the view of the victims' house. He had been unemployed for several months before the crime and, as a result, stayed home and took on the regular household duty of accompanying his girlfriend's daughter to the nearby school bus stop every morning. The jury could infer from these facts that the defendant had the ability to observe the victims' regular routine of leaving their house at approximately the same time every day and the opportunity to take advantage of their absence.
Kristin Smith, the defendant's former girlfriend, identified the phone as one previously used by the defendant. The phone contained numerous indications that it belonged to the defendant: the address book contained phone numbers associated with the defendant (such as the girlfriend's work number and the defendant's former work number), and the photographs in the phone also were associated with him. It is true that the phone had no service on the day of the crime, and the number associated with the phone had been reassigned to an unrelated party two months before. That said, the phone was charged when it was found, and the jury were entitled to infer that a cell phone would not be kept charged for months after it had been disconnected from service unless it was still in use for the data it contained. This inference is bolstered by the fact that the defendant had another cell phone with service at the time of the crime. In addition, the defendant had $453 in cash on him when arrested (shortly after the crime), and asked his girlfriend to lie to the police about where that money came from. His lengthy (twenty minute) delay in responding to the police when they arrived at his home also supported an inference of consciousness of guilt.
In short, unlike in Renaud, the presence of the cell phone was not the only evidence linking the defendant to the crime. Contrast Commonwealth v. Morris, 422 Mass. at 259–260;Commonwealth v. Renaud, 81 Mass.App.Ct. at 264–265. And the evidence as a whole, together with the reasonable inferences that could be drawn from it, was sufficient to permit the jury to conclude that the defendant was the perpetrator. Compare Commonwealth v. Chase, 70 Mass.App.Ct. 826, 835 (2007) (evidence that was “purely circumstantial” nonetheless “single[d] out the defendant” as the perpetrator where sneaker prints at the crime scene matched the defendant's, and he had inside knowledge necessary to carry out the crime).
The defendant next argues error in the admission of indirect hearsay when Officer Murphy was permitted to testify that, after he spoke with a man who answered the “work” number on the cell phone, he retrieved the defendant's photograph and address from the Registry of Motor Vehicles (RMV) database. Although the defendant concedes that the officer could have permissibly testified that he went to the defendant's home after making the phone call, the defendant contends that the officer should not have been permitted to testify that, as an intermediary step, he searched the RMV database. We are not persuaded.
As an initial matter, we do not see how the concededly proper testimony that the police proceeded to the defendant's house after the phone call is any less revealing of the content of the phone call than is the fact that the officer searched the RMV database. However, even were we to assume that the officer's testimony conveyed to the jury the substance of the call, the evidence was not hearsay and, by extension, there was no violation of the defendant's confrontation right. See Commonwealth v. Mendes, 463 Mass. 353, 368 (2012), quoting from Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) ( “confrontation clause protections not triggered by statements used ‘for purposes other than establishing the truth of the matter asserted’ ”). The inference as to what was said to the officer during the call was not offered for its truth, but rather to explain “[what] drew [police] attention to the defendant.” Commonwealth v. Gaynor, 443 Mass. 245, 270 (2005). Because of this, the evidence poses no hearsay or confrontation problems. In any event, because the testimony “was merely cumulative” of other properly admitted testimony that the defendant owned the cell phone in the past, it “could not constitute reversible error.” Ibid.
Lastly, the Commonwealth concedes, and we agree, that Detective Scopa's intimate relationship with Smith, a key prosecution witness, constituted serious misconduct. But the question for the motion judge was whether a new trial is necessary because the misconduct deprived the defendant of a fundamentally fair trial, Commonwealth v. Light, 394 Mass. 112, 114 (1985), or whether the charges should be dismissed because the defendant was irremediably prejudiced. See ibid. (“Where prosecutorial misconduct constitutes a deliberate and intentional undermining of constitutional rights or where the prejudicial effect of the misconduct cannot be remedied by granting a new trial, the drastic remedy of dismissal of charges may be appropriate”). In turn, our review is limited to whether the motion judge (who was also the trial judge) abused his discretion in denying the defendant's motion for postconviction relief. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986) (noting that “[a] reviewing court extends special deference to the action of a motion judge who was also the trial judge”).
The defendant argues that two forms of unfairness arose: first, because the Commonwealth did not call Detective Scopa, he was deprived of the opportunity to cross-examine him. Second, the court's sequestration order was violated when Detective Scopa spoke with Smith before she testified at trial.
The first argument fails for the simple reason that the Commonwealth was under no obligation to call Detective Scopa as a witness and nothing precluded the defendant from doing so himself. Moreover, the defendant knew of the affair several months before trial, and he therefore had ample time to decide how to use this information, including whether to call Detective Scopa in order to bring it to light. Instead, the defendant held the information back, and did not disclose it until cross-examination of Smith. This decision was likely informed by the fact that Smith § who remained in almost daily contact with the defendant up through trial) was a difficult witness for the Commonwealth and went out of her way on the stand to testify beneficially for the defendant, often contradicting her own earlier statements. Thus, the defendant used the fact of Smith's relationship with the detective to suggest that she was testifying truthfully, rather than fabricating her testimony to favor the defendant. Indeed, the defendant made this argument forcefully during his closing. In these circumstances, the judge did not abuse his discretion in denying the defendant's motion. See Commonwealth v. Mason. 453 Mass. 873, 877 (2009) (“[W]e have never dismissed charges in ... circumstances [of egregious prosecutorial misconduct] in the absence of prejudice”).
For this reason, there is no merit in the defendant's argument that two posttrial newspaper articles about the detective's relationship with Smith constituted newly-discovered evidence. The defendant knew about the affair several months before trial and was able to use that information to its maximum effect during the cross-examination of Smith.
The defendant's claim that the detective and Smith violated the sequestration order is not supported by the record. It appears that Smith met with the detective before the sequestration order went into effect; the request for the order was not filed until December 3, 2009, and Smith testified the next day. There was no affidavit from Smith § or anyone else) to substantiate the claim that she met with Scopa after she had been made subject to the sequestration order. See Commonwealth v. Thurston, 53 Mass.App.Ct. 548, 554 (2002).
Judgments affirmed.
Order denying motion for postconviction relief affirmed.