Opinion
No. 11–P–997.
2012-10-18
COMMONWEALTH v. Derrick SMITH.
By the Court (GREEN, BROWN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Derrick Smith, of armed robbery (G.L. c. 265, § 17). The defendant filed a motion for posttrial relief pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). The trial judge reduced the verdict to unarmed robbery. The Commonwealth appeals, arguing that the judge abused her discretion by reducing the verdict. The defendant cross-appeals, arguing that the trial judge erred by (1) failing to instruct the jury about the effects of intoxication; and (2) admitting hearsay evidence.
I. Background. According to the victim, he was robbed by the defendant and another person
after the defendant revealed to him the “back end of a gun.” The victim further testified that, although the defendant never brandished the gun, the victim complied with the robbers out of fear for his safety.
A codefendant was also tried.
After the incident, the victim followed the defendant's car in order to obtain its license plate number and a better description of the vehicle. The victim then notified the police of the robbery. Although no gun was ever recovered, Detective Joseph Brodeur testified that the victim identified a picture of a gun that had a handle similar to the gun handle he had seen. The picture was admitted as an exhibit in evidence.
The defendant went through the victim's pockets and retrieved two hundred one dollar bills and a cell phone. The victim was able to negotiate the cell phone back for an exchange of additional money.
At trial, neither the defendant nor the codefendant testified. Instead, the codefendant presented two witnesses, Clover King and Roger Kum. In addition to claiming that there was no robbery, both witnesses alleged that the gas station was not empty, as the victim claimed, and that the victim's vehicle had struck their vehicle. The jury returned with a verdict of guilty of armed robbery for the defendant and not guilty for the codefendant.
The facts were contested, and another version was provided by the defendants.
It should be noted that the victim failed to make a positive in-court identification of the codefendant. However, he was able to identify the defendant as the individual in possession of the gun and the one who stole his money.
II. Commonwealth's appeal. “Pursuant to rule 25(b)(2), a trial judge has the authority to reduce a verdict, despite the presence of evidence sufficient to support the jury's original verdict.” Commonwealth v. Rolon, 438 Mass. 808, 820 (2003), citing Commonwealth v. Woodward, 427 Mass. 659, 666–667 (1998). It is permissible for a judge to exercise discretion to reduce a verdict where the weight of the evidence, although “technically sufficient to support the verdict, points to a lesser crime.” Id . at 821. “The purpose behind the grant of such power to a judge is ‘to ensure that the result in every criminal case is consonant with justice.’ “ Id. at 820, quoting from Commonwealth v. Woodward, supra at 666. The decision to reduce a verdict will not be disturbed “unless the judge abused his discretion or committed an error of law.” Id. at 821, quoting from Commonwealth v. Woodward, supra at 668.
At the conclusion of the trial, the Commonwealth requested the judge to instruct the jury on the lesser included offense of unarmed robbery, as one of the main issues at trial was whether the defendant was armed. The request was opposed by the defendant.
See Commonwealth v. Woodward, supra at 662–663. The judge did not so instruct.
The defendant opted for an all-or-nothing strategy.
We think the jury should have been instructed on the lesser included offense despite the defendant's objection.
“The crime of robbery is the (1) stealing or taking of personal property of another (2) by force and violence, or by assault and putting in fear.” Commonwealth v. Christian, 430 Mass. 552, 556 (2000). The crime is elevated to armed robbery when the defendant is armed. Ibid. See Commonwealth v. Powell, 433 Mass. 399, 401–402 (2001), and cases cited (sufficient evidence of armed robbery if victim reasonably believed that object displayed capable of inflicting bodily harm).
“When the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime.” Commonwealth v. Gould, 413 Mass. 707, 715 (1992), citing Commonwealth v. Campbell, 352 Mass. 387, 392 (1967).
Here, the jury were foreclosed from considering whether the defendant committed a robbery without a gun. A reduction of verdict is justified “when judges have omitted to charge on critical themes that might have affected juries and brought about different verdicts .” Commonwealth v. Woodward, supra at 671, quoting from Commonwealth v. King, 374 Mass. 501, 508 (1978). Accordingly, the judge could permissibly conclude a lesser verdict of unarmed robbery was more “consonant with justice” than letting the armed robbery verdict stand. See Commonwealth v. Keough, 385 Mass. 314, 320 (1982).
Despite the jury verdict,
the trial judge found the victim's credibility to be “highly suspect” and was troubled by the lack of physical evidence to corroborate the victim's account of the robbery-the police did not recover a gun, nor did the defendant have the two hundred dollars in cash that was allegedly stolen.
As an aside, we note the trial judge acknowledged that the not guilty verdict for the codefendant was inconsistent with the guilty verdict for the defendant.
The victim acknowledged at trial that he had drunk alcohol and smoked marijuana just prior to the incident.
The money found on the codefendant did not match the amount or the denominations of bills the victim alleged had been stolen. The defendant and codefendant were apprehended within one hour of the alleged robbery.
The trial judge assigned weight to the testimony of Clover King, who testified that there were several cars in the gas station when the victim hit her car; that an accident occurred was supported by photographs showing scratches and dents on both cars.
Specifically, the victim testified that he had “a couple of shots of Smirnoff [vodka],” “a couple of beers,” and marijuana.
See id. at 319–320;Commonwealth v. Woodward, 427 Mass. at 668–669 (judge may rely on and credit the defendant's version). Because the judge's decision was based on the weight of the evidence and not on factors irrelevant to the level of the offense, there was no abuse of discretion or other error of law. Commonwealth v. Rolon, 438 Mass. at 821–822.
Clover King also testified that the victim appeared to be “out of it” and refused to exchange identification or insurance papers.
III. Defendant's cross appeal. A. Jury instructions on intoxication. The defendant argues that the trial judge committed prejudicial error by providing the jury with general instructions on witness credibility. The defendant sought to have the judge instruct the jury to weigh the credibility of the victim and potential effects of his alcohol and drug use. The defendant seized multiple opportunities to remind the jury of the victim's consumption of alcohol and marijuana. The trial judge relied on the standard witness credibility instruction from the Criminal Model Jury Instructions for Use in the District Court, Instruction 2.260 (2009). See Commonwealth v. Thomas, 439 Mass. 362, 365 (2003); Commonwealth v. A Juvenile, 21 Mass.App.Ct. 121, 124 (1985). No further instructions were necessary.
B. Hearsay objection. The defendant also alleges that the trial judge erroneously admitted a redacted photographic array of guns.
It is well established that “[w]here for whatever reasons original items of physical evidence cannot be produced, substitutes similar to the originals have often been received as exhibits, in criminal as well as civil trials, to illustrate and corroborate testimony in which the originals figured: the admission of such simulacrums is well understood to rest in the discretion of the court.” Commonwealth v. Luna, 46 Mass.App.Ct. 90, 93 (1998).
In this case, the police never recovered the gun that was used in the alleged robbery. However, the victim testified to seeing what appeared to be a handle of a gun and described it in detail. The admission of the photographic array was appropriate as the defendant was charged with armed robbery and the identification of the gun was a critical issue at trial. See Commonwealth v. McPherson, 74 Mass.App.Ct. 125, 127 (2009). Even if we were to decide that the array was prejudicial, which we do not, it was merely cumulative. See Commonwealth v. Thomas, 429 Mass. 146, 159–160 (1999) (admission of hearsay statements was not prejudicial where the statements were cumulative of other properly admitted evidence).
Order allowing motion for postverdict relief affirmed.
Judgment affirmed.