Opinion
21-P-251
08-02-2022
COMMONWEALTH v. BRAIJON RIGAUD
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from his adjudication as a youthful offender, after a jury trial, on indictments charging breaking and entering in the daytime with intent to commit a felony, G. L. c. 266, § 17, and assault and battery on a person over sixty, G. L. c. 265 § 13K (a½). He maintains that (1) his stop, custodial statements, and identification should have been suppressed, (2) the trial judge improperly admitted uncharged, unrelated prior bad act evidence as rebuttal to a Bowden defense, and (3) the case should have been dismissed because of a discovery violation. We affirm.
Background.
On a hot, breezy morning in August 2017, the victim, seventy-five years old, responded to her ringing doorbell and saw a young Black man, later identified as the seventeen year old defendant, standing at her door wearing a dark hoodie with the hood up, largely obscuring his face. The door was propped open and only a locked screen door separated the victim from the defendant. When the victim appeared inside the door, the defendant lifted his head and the victim got a "pretty good" look at his face. The defendant asked whether "Eric" lived at the victim's home. When she said no, the defendant left and headed toward the parking area. The victim went back to drinking her coffee in the dining room.
A short time later, the victim heard a strange scratching noise at her door. When she went to investigate, she found the defendant in her home (it was later discovered that the screen door had been slit); he began yelling that he wanted her money. The victim tried to push him out the door, but failed, and the defendant grabbed her arms, pushed her chest, reached around her, and slammed the metal front door shut, closing them both inside. As the defendant moved into her living room, the victim opened the front door and started screaming for help, causing the defendant to push past her and run out the door, turning right at the sidewalk. Nothing was taken from the house. The victim immediately called 911.
Within minutes of the victim's 911 call, police officers were near the victim's home, looking for a young Black man wearing dark clothing and a black hooded sweatshirt. Landscapers working in the area, informed why the police were there, told an officer that, within five minutes of the officer's arrival, they had seen a young Black man in green sweatpants who fit the description going door to door in the area, heading in the direction of the victim's block. A second broadcast description indicated that the suspect might be wearing dark green pants.
Minutes after this description was broadcast, an off-duty Randolph police officer, Vardy Duperval, saw a person walking southbound on the next street over from the victim's home, some two hundred to three hundred feet away, wearing a black sweatshirt with the hood pulled tight around his head and green sweatpants. There was no one else on the street, a side street with little activity. Duperval detained the person, whose face was "sweating profusely" inside the hoodie. The person was the defendant.
Multiple officers arrived within minutes. Officers saw no one else fitting the suspect's description in the area of the crime. Officer Howard Solow read the defendant his Miranda rights and said that a witness was on the way to attempt an identification. The defendant said he understood the Miranda rights, then dropped his head and said he was sorry and that he had made a mistake. Neither Solow nor any other officer had asked a question. Officers handcuffed and pat frisked the defendant, recovering a black knife in his right front pocket and a white change purse in the left.
There was no evidence, nor could a reasonable inference be drawn, that these items belonged to the victim.
Back at the victim's home, Officer Miguel Cruz read the victim a "show-up I.D. card," which the victim confirmed she understood. Cruz then drove the victim to the defendant; in the car, they passed within twenty feet of where the defendant stood, not handcuffed, with officers. Asked whether she could identify the defendant, the victim said "it was hard because . . . the party had a hooded sweatshirt on ... at the time of the incident." Cruz asked the other officers to pull up the defendant's hood, which they did. He then drove by slowly, putting the victim "eye-to-eye" with the defendant from a "better vantage point"; the victim said she was "positive" the defendant was the person who had been in her home. The showup happened within ten to fifteen minutes of the victim's 911 call.
The card read, "You are going to view someone. This person may or may not be the offender who committed the crime. Remember, it is just as important to clear an innocent person as it is to identify a guilty one. Whether or not you identify this person, we will continue to investigate. If you do select this person, I will ask you to tell me in your own words how certain you are of the identification. I cannot answer any questions about this person because the law prevents me from sharing information with you at this time. I also ask that you . . . not discuss this procedure with any other witnesses. Before we begin, do you have any questions?"
That same day, based on information learned from an independent source, officers obtained a warrant to search the defendant's bedroom. In that search, under his pillow, they found credit and bank cards in the names of two unknown people.
Discussion.
1. Motions to suppress.
a. Standard of review.
In reviewing the denial of a motion to suppress, we accept the motion judge's findings of fact unless they are clearly erroneous. Commonwealth v. Bell, 473 Mass. 131, 138 (2015). Where, as here, we find no clear error of fact, "our legal analysis focuses on 'the correctness of the judge's application of constitutional principles to the facts as found.'" Commonwealth v. Depina, 456 Mass. 238, 241 (2010), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Our review reveals no error in that application.
b. The stop.
A stop is justified when police have "reasonable suspicion, based on specific and articulable facts, that the defendant had committed, was committing, or was about to commit a crime." Depina, 456 Mass. at 242, citing Commonwealth v. DePeiza, 449 Mass. 367, 369-371 (2007). Proximity in time and place play a role in our analysis, Commonwealth v. Evelyn, 485 Mass. 691, 704 (2020); here, the defendant was stopped within minutes of the crime, only a block or two away from the scene. Cf. Commonwealth v. Henley, 488 Mass. 95, 103 (2021). "Proximity is accorded greater probative value in the reasonable suspicion calculus when the distance is short and the timing is close." Commonwealth v. Warren, 475 Mass. 530, 536 (2016). Tellingly, the multiple police officers who immediately flooded the area saw no one else who met the witnesses' description. The judge who heard the motion to suppress (motion judge) did not err in concluding that the stop was based on reasonable suspicion.
c. The statement.
The defendant maintains that his statement, "I'm sorry. I made a mistake," was the product of custodial interrogation or its functional equivalent, and he was therefore entitled to have an interested adult present. Our courts recognize "that, ordinarily, a juvenile must be afforded a meaningful opportunity to consult with an 'interested adult' before waiving his or her Miranda rights[.]" Commonwealth v. Smith, 471 Mass. 161, 162 (2015). The defendant has the burden to establish that his statement resulted from custodial interrogation. Commonwealth v. Quinones, 95 Mass.App.Ct. 156, 162 (2019) .
It is undisputed that the defendant was in custody when he made the challenged statement. We find ample support in the record for the judge's findings that (1) after being advised of his Miranda rights, the defendant said, "I'm sorry. I made a mistake," and (2) this statement was "not in response to any question posed by Officer Solow or any other officer." There was no interrogation.
Similarly, the police officers' actions were not the "functional equivalent" of interrogation, which includes "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Commonwealth v. Torres, 424 Mass. 792, 797 (1997), quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980). "The test is 'whether an objective observer would infer that [the police conduct] was designed to elicit an incriminating response.'" Commonwealth v. Ferrer, 68 Mass.App.Ct. 544, 546 (2007), quoting Commonwealth v. Chadwick, 40 Mass.App.Ct. 425, 427 (1996). We "consider how the police statements would be perceived . . . by a reasonable juvenile of the defendant's age," which was seventeen at the time. Quinones, supra at 159.
After reading the defendant his Miranda rights, Officer Solow explained that an eyewitness was on the way to attempt an identification. This explanation can properly be described as "normally attendant to arrest and custody": having arrested the defendant, officers explained what would happen next, aiding in his understanding of the situation. See Quinones, supra at 162 (officer's general advice not functional equivalent of interrogation). We conclude that a reasonable seventeen year old would not perceive that the officer's statements were "designed to elicit an incriminating response." See Ferrer, 68 Mass.App.Ct. at 546.
d. The showup.
The defendant contends that the showup procedure was unnecessarily suggestive because it inappropriately allowed the victim to identify his clothing (the hoodie) rather than him. We decline to so rule.
"One-on-one identifications are generally disfavored because they are viewed as inherently suggestive." Commonwealth v. Martin, 447 Mass. 274, 279 (2006), citing Commonwealth v. Johnson, 420 Mass. 458, 461 (1995). Such identifications can be permissible when "good reason exists for the police to use a one-on-one identification procedure." Commonwealth v. Austin, 421 Mass. 357, 362, (1995). "Put another way, if the confrontation is not permeated by 'special elements of unfairness' which are designed by the police to suggest to the victim that the defendant is the criminal, it is constitutionally permissible." Commonwealth v. Coy, 10 Mass.App.Ct. 367, 372 (1980), citing Commonwealth v. Moon, 380 Mass. 751, 758 (1980). To exclude the identification, the defendant "bears the burden of demonstrating, by a preponderance of the evidence, that the 'witness was subjected by the State to a confrontation that was unnecessarily suggestive and thus offensive to due process.'" Commonwealth v. Meas, 467 Mass. 434, 440 (2014), quoting Johnson, supra at 463. We consider the totality of the circumstances. Id.
Here, as in Coy, 10 Mass.App.Ct. at 372, "[t]he officers on the street were working from descriptions based on clothing and lacking in other distinguishing physical characteristics," and "it was only by arranging a showup that the police could determine whether they might have apprehended the right person[] or whether their efforts should be promptly redirected elsewhere." Having arranged for a prompt identification process, it was not overly suggestive to allow the victim a closer look at the defendant after his hoodie had been pulled up. Meas, 467 Mass. 443. See also Commonwealth v. Dew, 478 Mass. 304, 310 (2017) (showup not unnecessarily suggestive where police draped black jacket over defendant's shoulders; victim described assailant as wearing black jacket and was asked to identify person, not clothing).
The defendant's claim that the victim merely identified a "ubiquitous" hoodie fails to take the context of the identification procedure into account. Immediately before the showup, the victim heard and understood the showup I.D. card, including a warning that "this person may or may not be the offender who committed the crime. Remember, it is just as important to clear an innocent person as it is to identify a guilty one." The showup happened within ten to fifteen minutes of the crime and the victim -- who had seen the intruder's face at close range -- was certain that the defendant was her attacker. She identified a person, not a hoodie. The hoodie, too, must be viewed in context; given the weather -- a hot morning in August -- and the absence of anyone else in the area, the hoodie is more like the "particularly distinctive" clothing in Meas than the general descriptions in Warren. A pulled-up hoodie in August, like a bathing suit in January, may be a clue. See Commonwealth v. Sylvia, 456 Mass. 182, 190-191 (2010) (jury could find in-court identifications reliable where, because of warm weather, witness paid particular attention to fact that shooter wore hoodie or jacket).
2. Admission of the fruits of the search warrant.
Before trial, the Commonwealth moved to admit evidence about the search of the defendant's bedroom on the day of his arrest, including the discovery of bank and credit cards found under his pillow ("card evidence"). Although the police did not know at the time of the search where the card evidence came from, they learned within days that it had been stolen from a woman at the same housing complex as the victim. Like the victim's, her screen door had been slit. The Commonwealth maintained that the card evidence was admissible to show modus operandi and for identification. The motion judge, who was not the trial judge, denied the motion, finding that although the discovery of the cards suggested that the defendant may have received stolen property, the Commonwealth had not produced any evidence that the defendant had participated in the earlier break-in.
On appeal, the Commonwealth does not challenge the motion judge's conclusion.
At trial, after the defendant's counsel made an opening statement calling the thoroughness of the police investigation into question, see Commonwealth v. Bowden, 379 Mass. 472 (1980), the trial judge ruled that the Commonwealth could introduce evidence relating to the execution of the search warrant, specifically, that the cards were found under the defendant's pillow on the day of his arrest, and that the name on the cards was not the defendant's. Over the defendant's objection, the Commonwealth then elicited testimony that the cards found under the pillow were in the names of two other, named people.
Both before and after the Commonwealth elicited this testimony, the judge gave extensive limiting instructions. She first explained that she was "allowing the prosecutor to ask Detective Brewer some questions regarding the manner in which he conducted his follow-up investigation" so that the jury could assess the thoroughness of the investigation. The judge further instructed, "[I]t's not substantive evidence on the issue of guilt." After the detective testified about finding the card evidence under the defendant's pillow, the judge again instructed the jury about the limited purpose for which the card evidence had been admitted. Following the second limiting instruction, defense counsel renewed her objection to the admission of the card evidence and also objected to the limiting instructions.
The complete instruction was: "I'm just going to take a moment, members of the jury. With respect to this evidence, again, I want to make it absolutely clear that this evidence you heard is just for information to you, for you to collect your own personal and collective assessment evaluation of the thoroughness of the Randolph Police Department's investigation of the break into [the victim's home] and what the police department was doing, so that you could consider this evidence in an explanatory fashion about the thoroughness and expanse of their investigation. "Please know this. Braijon Rigaud is not charged with any other crimes. He is not charged with any other -- committing any other offenses, other than the two crimes before this court for your consideration, that being assault and battery on an elderly person or a disabled person, and secondly, breaking and entering during the daytime with the intent to commit a felony, putting a person lawfully therein in fear. "Those are the only two crimes and offenses for which Braijon Rigaud stands charged. You are to disregard any inference you take from that. And it is certainly no substantive evidence that you've just heard regarding the search warrant or the application for the search warrant or the execution of the search warrant and what was found. That is simply for your understanding as to the completeness of the Randolph Police Department's investigation. "He is charged with no other offenses."
Although the Commonwealth has a right to rebut the implication that its investigation was inadequate, Commonwealth v. Avila, 454 Mass. 744, 745 n.l (2009), the fact that officers found the card evidence when they executed the search warrant was unrelated to the adequacy of the investigation into the attack on the victim. The discovery of the card evidence did not explain why the officers did not collect fingerprints from the scene of the crime or show photographic arrays to the witnesses. Nor did the evidence show any follow-up to this discovery that would explain the absence of these investigative steps. The fact that the police sought and obtained a search warrant, by itself, would have gone to the thoroughness of the investigation, but the card evidence accomplished nothing but to suggest the defendant's involvement in other, similar criminal acts. Its admission was error.
We next consider whether the error was prejudicial and conclude that it was not. "An error is nonprejudicial only if we are sure that the error did not influence the jury, or had but very slight effect. . . . But if one cannot say . . . without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected" (quotation and citation omitted). Commonwealth v. Graham, 431 Mass. 282, 288 (2000) .
The card evidence was prejudicial, but the other evidence of the defendant's guilt was strong. He was apprehended within minutes of the crime, two to three hundred feet from the victim's home, and officers saw no one else matching the description (distinctive, by virtue of the season) anywhere in the vicinity. Commonwealth v. Jones, 477 Mass. 307, 316-318 (2017) (evidence of "the similarity between [the defendant's] clothing and the clothing worn by the sole person seen fleeing the scene," combined with defendant's presence near crime scene and evidence of consciousness of guilt, sufficient to allow jury to infer guilt). The victim, who had gotten a close look at the perpetrator's face, was "positive" the defendant was the one who had broken into her home. See Commonwealth v. Smith, 12 Mass.App.Ct. 667, 668-670 (1981) (evidence sufficient for jury to infer that defendant was robber based, in part, on eyewitness who saw defendant's features for about five seconds from fifteen to twenty feet away and positively identified him as robber). Upon arrest, the defendant admitted, "I'm sorry. I made a mistake," which could be understood as an admission of guilt. See Commonwealth v. Arroyo, 442 Mass. 135, 139-140 (2004) (jurors could have concluded that defendant's unexplained statement, "I'm sorry," to victim's partner, was "an apology for killing the father of her children just hours before"). The victim's screen door had been slit, and the defendant had a knife in his front pocket, which the jury could interpret as the means of entry. And the judge gave two limiting instructions, one before and one after the contested testimony, which the jury are presumed to follow. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997), citing Commonwealth v. Albert, 391 Mass. 853, 859 (1984).
In this context, we are confident that the erroneous admission of the card evidence did not substantially sway the outcome. See Graham, 431 Mass. at 288-289 (erroneous admission of crossbows not prejudicial where there was already ample evidence of defendant's familiarity with weapon).
3. Motion to dismiss.
The defendant maintains that, because the prosecutor did not comply with a discovery order entered by the motion judge, the case should have been dismissed. Dismissal is "the most severe sanction that the court can impose in a criminal case to remedy misconduct on the part of the Commonwealth" for a discovery violation. Commonwealth v. Mason, 453 Mass. 873, 877 (2009), citing Commonwealth v. Viverito, 422 Mass. 228, 230 (1996). We review for abuse of discretion and find none. See Commonwealth v. Frith, 458 Mass. 434, 434-435 (2010).
The defendant had sought to compel discovery after learning from the prosecutor that Duperval was being investigated by an outside agency for possible misconduct; the resulting discovery order, issued under Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444 Mass. 1501 (2005), required the prosecution to "produce to defense counsel information regarding any [and] all investigations concerning the law enforcement witnesses it intends to call at the trial." The prosecutor did not produce records pertaining to any investigation of Duperval, which she consistently represented she did not possess. See Commonwealth v. Wanis, 426 Mass. 639, 643 (1998) (Commonwealth cannot be compelled under rule 14 to produce records from police department's internal affairs division). Instead, she recommended that the defendant seek them under Mass. R. Crim. P. 17, 378 Mass. 885 (1979), from the agency conducting the investigation.
There is no suggestion that the prosecutor deliberately avoided taking possession of the documents or was offered and refused access to them, or that the conduct under investigation was in any way related to the defendant's case.
When the time came for trial, Duperval was abroad and not available to testify. The prosecutor indicated that the Commonwealth would proceed to trial without him, and that she still did not have the reports; then nonetheless moved -- after extensive discussion -- to continue the trial so that defense counsel could have the benefit of the reports before trial. The defendant objected to a continuance, and the trial judge denied the motion, noting that Duperval was not an intended trial witness, so the reports would not provide impeachment evidence.
The discovery order required the prosecutor to turn over "information regarding" "investigations concerning the law enforcement witnesses it intend[ed] to call at the trial." The prosecutor did not violate the order; because Duperval was not an intended trial witness for the Commonwealth, the documents did not fall within its ambit. The defendant could have sought the documents from the investigating authority, see Wanis, 426 Mass. at 644, but did not, and instead elected to go to trial. The judge did not abuse her discretion in declining to dismiss the case for the alleged discovery obligation.
Judgments affirmed.
Milkey, Massing & Hershfang, JJ.
The panelists are listed in order of seniority.