Opinion
14-P-748
08-26-2015
COMMONWEALTH v. LANA M. ROGERS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from her convictions of one count of unarmed robbery, G. L. c. 265, § 19(b), one count of conspiracy, G. L. c. 274, § 7, and one count of reckless endangerment of a child, G. L. c. 265, § 13L. On appeal, she contends that evidence of bloody needles in her so-called diaper bag was erroneously admitted, constituting bad character evidence that unfairly prejudiced her in the jury's eyes, and that the judge's charge to the jury, which "implore[d]" them to reach a verdict, was premature and coercive. We agree that the admission of testimony describing the needles was error, but conclude it did not create a substantial risk of a miscarriage of justice. We reverse her reckless endangerment conviction on a different ground. We disagree with her second argument about the jury instructions and affirm her convictions of unarmed robbery and conspiracy.
Background. We summarize the facts relevant to the issues presented on appeal. A Bank of America teller in Hyannis was robbed on October 16, 2012. A fingerprint from a note left by the robber was matched to Gerard Langley. On October 25, 2012, an Eastern Bank teller in Cotuit was robbed, and, again, Langley's fingerprints were found on a note left at the bank. When investigators began following up on a tip that the perpetrator left the scene in a red sports car, they found the defendant and Langley walking back to a vehicle matching that description. Both the defendant and Langley were arrested, and the vehicle was searched. The defendant's baby was sitting in a car seat in the back seat of the vehicle, and there was also a diaper bag in the back seat. Prescription drugs and bloody hypodermic needles were inside the diaper bag. Police found marked bills from Bank of America and Eastern Bank, as well as hypodermic needles, on Langley's person.
The defendant first denied, then admitted, driving Langley to the banks, but denied knowing that he would rob them. She denied knowing there were needles in her diaper bag. A jury trial began on November 20, 2013, in Superior Court. The defendant filed a motion in limine to prohibit the Commonwealth from introducing evidence of her prior bad acts, including mention of needles found in her diaper bag. On the second day of trial, the judge held a hearing on the motion and denied it in relevant part. The defendant moved for a required finding of not guilty, which was denied. On November 22, 2013, the jury found the defendant guilty of one count of unarmed robbery, one count of conspiracy, and one count of reckless endangerment of a child, and found her not guilty of one count of unarmed robbery and one count of conspiracy. The defendant was sentenced and this appeal followed.
Discussion. Admission of testimony regarding needles in diaper bag. On appeal, the defendant's first argument is that the trial judge erred in admitting evidence of prior bad acts because its "probative value is outweighed by the risk of unfair prejudice." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Specifically, she complains of the judge's denial in part of her motion in limine, and allowance of testimony regarding the bloody needles in her diaper bag. As the defendant did not renew her objection when the evidence at issue was introduced at trial, in the event we find the judge erred in admitting it, we review such error to determine if it created a substantial risk of a miscarriage of justice. See Commonwealth v. Kebreau, 454 Mass. 287, 296 (2009) ("[A] motion in limine seeking [a] pretrial evidentiary ruling [is] insufficient to preserve appellate rights unless there is objection at trial"). Since this issue involves an evidentiary ruling, we will find error only if the defendant shows "a clear error of judgment in weighing the factors relevant to the [court's] decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation and citation omitted).
To decide whether the judge erred in admitting the evidence, we first must determine of what, exactly, the bloody needles in the diaper bag were evidence. The defendant asserts they are solely evidence of prior bad acts, while the Commonwealth argues they are part of its case-in-chief on the child endangerment charge. The distinction matters, because "'other bad acts' evidence is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk," Crayton, 470 Mass. at 249 n.27, meaning if the needles are relevant only as evidence of motive for the unarmed robbery charge (which the Commonwealth argues as a secondary basis for admissibility), the defendant has an easier path to reversal. Instead, if evidence of the needles is substantive evidence of child endangerment, such evidence should have been excluded only if its probative value was substantially outweighed by the risk of unfair prejudice. Ibid.
To prove child endangerment, the Commonwealth must prove the defendant "wantonly or recklessly engage[d] in conduct that create[d] a substantial risk of serious bodily injury . . . to a child or wantonly or recklessly fail[ed] to take reasonable steps to alleviate such risk where there [was] a duty to act." G. L. c. 265, § 13L, inserted by St. 2002, c. 32, § 2.
At trial, the Commonwealth elicited testimony about the contents of the defendant's diaper bag, which contained "a bunch of hypodermic needles." In addition to describing precisely where the needles were located (in the zippered center part of the diaper bag), what they looked like ("standard hypodermic needles, similar to insulin needles"), and their quantity ("more than a few"), the Commonwealth read into the record a transcript of an interview with the defendant. Lieutenant Murphy read the following exchange into the record:
LIEUTENANT MURPHY: "What are all these needles that were in your diaper bag? That's not cool."
MISS ROGERS: "There are no needles in my diaper bag."
LIEUTENANT MURPHY: "There most certainly was [sic] needles in that diaper bag."
MISS ROGERS: "There -- there better not be needles in my diaper bag."
LIEUTENANT MURPHY: "There was [sic] needles in your diaper bag, a bunch of needles in your diaper bag."
MISS ROGERS: "No, I did not."
LIEUTENANT MURPHY: "There are needles with blood on them. A needle -- needles with blood on them, too."
MISS ROGERS: "Well, check that blood. Check the blood. That -- that's not my blood because --"
LIEUTENANT MURPHY: "Yeah."
MISS ROGERS: -- "I have no clue that there were needles in my diaper bag. I would never do that."
LIEUTENANT MURPHY: "He had needles in his pocket, and there were needles in the diaper bag. A bunch of needles. Why would I lie? They're in your diaper bag with these -- with these."
MISS ROGERS: "The -- the -- the needles in the diaper bag are not mine."
LIEUTENANT MURPHY: "Okay."
The Commonwealth asserts the bloody needles were relevant as substantive evidence of child endangerment. However, the baby was strapped into a car seat, and there was no evidence that the baby was close to the diaper bag or that she had the ability to reach it or reach into it. Instead, the Commonwealth used this evidence in a conclusory fashion in its closing, arguing to the jury: "[W]hen you bring your [eleven] month old child to a bank robbery, that's child endangerment. When you couple that with the fact that there's needles [sic] in the diaper bag, that's child endangerment."
Evidence of used needles in a mother's diaper bag, without at least some contextual explanation for how such needles might endanger the child, is not relevant to the charge of child endangerment. It was error to admit the exchange on this ground.
The Commonwealth's second argument for admission is a more attenuated one. Analogizing to cases holding that evidence of a defendant's drug abuse is relevant to motive because it might tend to show "he sought to rob the victim for funds to buy additional drugs," Commonwealth v. O'Laughlin, 446 Mass. 188, 208 (2006), the Commonwealth argues that here the needles showed drug use was the motive for assisting in the bank robbery. But there was ample evidence of that drug use without describing bloody needles in a diaper bag. Nor was this theory presented at trial -- here the Commonwealth argued in closing only that possession of the needles in the diaper bag amounted to child endangerment -- and the judge, when the evidence was admitted, gave no limiting instruction on its use (for example, that it was admissible solely to show motive for the robbery). This ground cannot sustain its admission. Compare Crayton, 470 Mass. at 252 ("Because the probative value of the drawings was so minimal with regard to the state of mind, knowledge, or intent of the defendant, and because the risk of unfair prejudice was so great, this is the unusual case where we conclude that it was an abuse of discretion to admit the 'bad act,' even with a limiting instruction") (emphasis supplied).
There was certainly substantial unfair prejudice to the defendant caused by informing the jury that she had in a diaper bag bloody hypodermic needles used with illicit intravenous drugs. However, there was overwhelming evidence of the defendant's participation in the unarmed robbery and in the conspiracy, so we cannot say that this error created a substantial risk of a miscarriage of justice with respect to those convictions. We need not decide whether the error created such a risk for the reckless endangerment conviction, because we reverse that conviction on other grounds.
Reckless endangerment. To obtain a conviction for reckless endangerment of a child, the Commonwealth must establish that
"the risk . . . [is] a good deal more than a possibility, and its disregard substantially more than negligence. In addition, the harm at risk must be of a very serious nature, defined as injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death."Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008) (quotation omitted). At trial, the Commonwealth proffered two separate theories for how the defendant exposed her child to such risk: bringing the child to a bank robbery, and leaving bloody needles in the child's diaper bag. The second of these, at least within the context of the record before us, cannot suffice to support a conviction under this statute. Because we cannot tell on which of these two theories the jury convicted the defendant, we reverse her conviction of reckless endangerment of a child. See Commonwealth v. Flynn, 420 Mass. 810, 818 (1995) (reversing conviction where one of two theories underlying it "was legally unsupportable . . . and we cannot tell whether the jury adopted this theory").
Jury charge. The defendant's final argument relates to a jury charge given by the trial judge. The jury began their deliberations at 10:34 A.M. After having deliberated for some time, and having taken a lunch break, at 1 P.M., they submitted a question reading, "What happens if we cannot come to a unanimous decision going either way, guilty or not guilty?" Both parties agreed with the judge's opinion that it was too early for the so-called Tuey-Rodriquez charge, and assented to the judge's suggestion of giving a modified Tuey-Rodriquez charge -- modified, presumably, to have less of a "sting" than does Tuey-Rodriquez. See Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 295 (2005) (mentioning that "the Tuey-Rodriquez charge has a 'sting'"). The judge, after discussing the jury's role and the obligations of the jurors, ended his charge by stating, "I'm going to implore you to attempt to discuss all the issues in this particular case and arrive at a unanimous verdict, whether it be not guilty or guilty to each of the offenses for which this person stands accused. It's preferable that you do so. With that, I'm going to ask you to go back and continue on with your deliberations."
Less than two hours later, at 2:52 P.M., the jury returned with their verdict, convicting the defendant of one of two counts of unarmed robbery, one of two counts of conspiracy, and one count of child endangerment.
On appeal, the defendant argues that the judge's exhortation to the jury was impermissibly coercive. As there was no objection at trial, we again review the error, if any, only to determine if it caused a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). First, we determine if there was error, in this case meaning the judge abused his discretion. See O'Brien, 65 Mass. App. Ct. at 295. "When, as here, the attack is on additional instructions, delivered after a period of jury deliberation, we look at the supplementary instruction in the context of the entire charge." Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 35 (1984). This court has provided a roadmap for judges confronting a jury that has indicated trouble reaching unanimity, but before the jury qualifies as deadlocked for purposes of Tuey-Rodriquez; we have recommended that the judge use the following instruction:
"(i) that in order to return a verdict, each juror must agree thereto;O'Brien, supra at 297, quoting from Commonwealth v. Rodriquez, 364 Mass. 87, 102 (Appendix B) (1973). We did so to help judges achieve the difficult balance between "exercis[ing] caution that the jury not be encouraged to give up the effort to reach unanimity, while at the same time ensuring that the jurors understand that conscientious disagreement is nevertheless acceptable." Id. at 296.
"(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
"(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
"(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
"(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict."
The court in O'Brien affirmed the defendant's conviction despite his challenge to the supplemental jury instructions because in such instructions there was "nothing . . . that suggested an obligation to decide." Ibid. Two sentiments expressed in the instant supplemental instructions do suggest just such an obligation, or at least a judicial preference for such an outcome: the judge "implore[d]" jurors "to attempt to discuss all the issues in this particular case and arrive at a unanimous verdict" and reiterated that it was "preferable" for them to "do so," the "so" reasonably understood to mean "arrive at a unanimous verdict." "Implore" is most commonly defined as "to call upon in supplication: urgently petition: beseech." Webster's Third New International Dictionary (2002). This imploring contrasts with the recommended instructions, which remind the jurors both of their function as members of a group and of their individuality: each juror has a "duty to consult with one another . . . with a view to reaching an agreement, if it can be done without violence to individual judgment" (emphasis supplied). Rodriquez, supra. While the judge's instructions here were not flagrantly coercive, compare Jenkins v. United States, 380 U.S. 445, 446 (1965) (reversing conviction because of coercive supplemental jury instruction, "You have got to reach a decision in this case"), they came dangerously close to "cross[ing] the line between enlightening the jurors' understanding and coercing them when he overcomes the will by the weight of his authority." Diaz, 19 Mass. App. Ct. at 34 (quotation omitted). However, we affirm the convictions of unarmed robbery and conspiracy because, like in Diaz, where the judge "described agreement as 'desirable' and 'very desirable' but noted that 'it is not absolutely necessary,'" id. at 36, here the judge improperly encouraged the jury to reach a verdict, but cannot be said to have coerced them.
We reverse the defendant's conviction of recklessly endangering a child, and affirm her convictions of unarmed robbery and conspiracy.
So ordered.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 26, 2015.