Opinion
19-P-1727
10-19-2020
COMMONWEALTH v. Daniel RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from an order of a Superior Court judge revoking his probation, the defendant challenges the sufficiency of the evidence supporting the findings that he violated certain conditions of his probation. We agree with the defendant that the evidence was insufficient to support a conclusion that he violated some of the conditions the judge found him to have violated. Because the evidence sufficiently supported the finding that he violated certain other conditions, we remand the matter to the Superior Court for consideration of the appropriate disposition, based solely on the violations that were supported by sufficient evidence. See Commonwealth v. Arroyo, 451 Mass. 1010, 1012 (2008) ; Commonwealth v. Marcus M., 92 Mass. App. Ct. 1, 6 (2017). We discuss the evidence supporting the several alleged violations in turn.
1. Armed robberies and receipt of stolen goods. Three armed robberies of convenience stores occurred in Brockton in May and June 2017. Each shared various similar characteristics: the perpetrator was described as a light-skinned black male, wearing a mask and gloves and carrying a handgun. In the first two robberies, the robber demanded money and cartons of cigarettes; in the third, the robber demanded only money. The perpetrator left the scene of each in a different getaway car; however, certain evidence later obtained by police suggested that the cars had been stolen, and tied the defendant to at least one of them. In particular, the vehicle used in the third robbery was reported to be a white Toyota Camry with a Massachusetts license plate number 3GT247. The vehicle registered to that plate number, however, was a gold Toyota Corolla, which had been reported stolen on June 8, 2017. On June 20, 2017, police conducted a wellness check on two persons reported to be passed out in a car with its engine running; that vehicle was a gold Toyota Corolla with a license plate that did not match its vehicle identification number. The latter number instead matched the plate mounted to the Camry used in the third robbery. The Corolla's ignition had been damaged, and a search of its interior yielded two BB guns, four pairs of gloves, a nylon "do-rag," cartons of Newport cigarettes, and a cell phone. The investigating police officer briefly interviewed the driver of the vehicle before the latter walked away; that individual gave his name as "Carlos Rodriguez" with a birth date of December 3, 1976. Another officer observed that the gloves found in the car looked quite similar to those worn by the suspect in the first robbery, as captured by store surveillance video footage. Another investigating officer reviewed store surveillance video footage of the first robbery and concluded that the perpetrator of that robbery was the person shown on the Criminal Justice Information Service (CJIS) photograph of Daniel Rodriguez.
The first, on May 7, occurred at a Petro Save gas station. The second, on June 8, occurred at a 7-Eleven. The third, on June 10, occurred at a Tedeschi's.
The mask worn by the perpetrator of the second robbery was described as a "black do-rag type," and the mask worn by the perpetrator of the third robbery was described as "black."
In the first robbery, the cigarette cartons demanded were Newport brand.
The transfer of plates between stolen vehicles illustrates the limitations of the defendant's contention that the mismatch between the plate number of the Honda linked to the defendant and the plate shown on the Honda used in the first robbery weakens the preponderance of the evidence against him.
At the hearing, the officer could not recall the year of the birth date. However, a contemporaneous search of Criminal Justice Information Service (CJIS) records, using the date of birth related by the officer at that time, returned a match to "Daniel Rodriguez" with the date of birth December 3, 1976. The officer confirmed that the picture of Daniel Rodriguez in the CJIS records matched the person he had interviewed.
Separately, cell phones recovered on June 2, 2017, from a stolen vehicle by State Police included one that allowed police to locate a Massachusetts ID card belonging to "Rick Rodriguez," with a date of birth of December 3, 1976 and a picture (signed by "Rick Daniel Rodriguez") matching that of the CJIS photograph of "Daniel Rodriguez."
The police chased the vehicle until it stopped, but the occupants evaded capture. Police did, however, observe that the appearance of one of the occupants who ran from the vehicle after it stopped matched the photograph of "Rick Daniel Rodriguez."
Taken as a whole, and considered against the standard of proof applicable to probation revocation hearings, we are satisfied that the judge did not err in concluding, by a preponderance of the evidence, that the defendant was the person who ran from the stolen vehicle on June 2, and who was briefly interviewed by officers during the wellness check on June 20. In turn, the evidence recovered from the stolen Corolla on June 20 following the defendant's departure supports the judge's conclusion that the defendant was the perpetrator of the strikingly similar armed robberies in Brockton on May 7, June 8, and June 10. The discrepancy in the height of the perpetrators of the three crimes, some based on estimates from review of surveillance video footage, does not compel a contrary conclusion, nor does the absence of the defendant's fingerprints from the guns recovered from the Corolla.
The estimates of height ranged from five feet, nine inches to six feet, two inches. The store clerk in the second robbery estimated the robber's height at five feet, nine inches; the other two estimates, based on investigating officers' review of surveillance video footage, were six feet and six feet, two inches, respectively. The defendant's height, according to Registry of Motor Vehicles records, is five feet, nine inches.
We note that the robber in all three robberies wore gloves.
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2. Failure to report. The defendant concedes that he failed to report to his probation officer as required.
3. Restitution. As the defendant correctly observes, no evidence supported the conclusion that the defendant failed to make required restitution payments. Indeed, his probation officer conceded that he had no record that the defendant had failed to pay.
4. Drug tests. The record likewise furnishes no support for the allegation that the defendant failed to submit to random drug testing when asked to do so.
5. Failure to pay DNA fees. No condition of the defendant's probation contract required him to pay DNA fees.
Conclusion. The evidence sufficiently supported the judge's finding that the defendant violated the conditions of probation by committing three armed robberies, receiving stolen property, and failing to report to his probation officer. The evidence was insufficient to support the allegations that he failed to make restitution payments, failed to submit to required drug testing, and failed to pay required fees for DNA testing. Accordingly, we vacate the order revoking the defendant's probation, and remand the case to the Superior Court for consideration of the appropriate disposition, based solely on the violations that were supported by sufficient evidence. See Commonwealth v. Arroyo, 451 Mass. 1010, 1012 (2008) ; Commonwealth v. Marcus M., 92 Mass. App. Ct. 1, 6 (2017).
So ordered.
vacated and remanded