Opinion
16-P-345
02-08-2017
COMMONWEALTH v. Fausto SOTO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2007, a Superior Court jury convicted the defendant of armed home invasion and masked armed robbery. On direct appeal, a panel of this court affirmed these convictions in an unpublished memorandum and order issued pursuant to our rule 1:28. Commonwealth v. Soto , 81 Mass. App. Ct. 1135 (2012). Representing himself, the defendant then filed a motion for new trial, which the motion judge, who was also the trial judge, denied without a hearing. Finding no merit in the defendant's appeal from the order denying his motion, we affirm.
Sufficiency of trial evidence as to armed burglary while masked . There was trial evidence that the defendant and a coventurer committed a robbery inside the apartment of a third party (the victim) while they were masked and while each was carrying a gun. However, as evidenced by ballistics certificates admitted at trial, one of the guns was a working firearm, while the other was not. Based on the inoperability of the second gun, the defendant argues that the evidence that he was "armed" was legally insufficient. This argument fails for two independent reasons.
First, consistent with the language of the statute, the armed robbery charge was based on the defendant's carrying a dangerous weapon, not necessarily a firearm. See G. L. c. 265, § 17, as appearing in St. 1952, c. 406, § 1 ("Whoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property ..."). For purposes of the statute, an inoperable gun can constitute a dangerous weapon, because dangerous weapons "include[ ] items that are used or displayed in a way such that they reasonably appear capable of causing serious injury or death." Commonwealth v. Powell , 433 Mass. 399, 401 (2001). Therefore, "the fact that the firearm was later determined to be inoperable does not affect the charge of armed robbery." Commonwealth v. Furr , 454 Mass. 101, 102 n.3 (2009). Second, the Commonwealth maintained that the defendant was liable both as a principal and as a joint venturer. To prevail on the joint venture theory, the Commonwealth did not have to prove that each of the men had a dangerous weapon in his possession.
This is not a case where the Commonwealth limited itself by specifically pleading in the indictment that the defendant violated the statute by carrying a firearm. Contrast Commonwealth v. Garrett , 473 Mass. 257, 267 n.12 (2015). See id . at 267-268 (Gants, C.J., concurring). To be sure, the indictment here did refer to "a dangerous weapon, to wit: a firearm." However, the phrase, "to wit," consistently has been interpreted in this context as merely introducing what follows as an example, not as limiting the Commonwealth to proving that example. See, e.g., Commonwealth v. Hobbs , 385 Mass. 863, 869-871 (1982).
Confrontation clause . Although the defendant phrased his lead argument in terms of sufficiency, he appears also to be arguing that the introduction of the ballistics certificates without a live witness violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. See Melendez-Diaz v. Massachusetts , 557 U.S. 305, 310-311 (2009). This argument has been waived because the defendant did not raise it in his direct appeal. See Commonwealth v. Mahar , 442 Mass. 11, 13 n.4 (2004). Our review is therefore limited to determining whether any violation caused a substantial risk of a miscarriage of justice. See Commonwealth v. Smith , 90 Mass. App. Ct. 261, 270 (2016). As noted above, the Commonwealth was not required to prove that either of the guns was a working firearm in order to prove that the defendant was armed with a dangerous weapon. Moreover, the presence of the guns—even if inoperable—provided robust proof that the defendant and his coventurer were armed with dangerous weapons. Under these circumstances, we are confident that the jury would have reached the same verdict had the ballistics certificate demonstrating that the first gun was operable not been admitted.
Although the defendant's failure to object to the admission of the ballistics certificates at trial was excused given the state of the law at that time, see Commonwealth v. Vasquez , 456 Mass. 350, 355-360 (2010), the law had become settled by the time the defendant's appellate brief in his direct appeal was filed.
With respect to the certificate that showed that the second gun was not a working firearm, this evidence inured entirely to the defendant's benefit.
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McCarthy & O'Dell claims . The defendant argues that, with respect to the armed home invasion charge, there was insufficient evidence presented to the grand jury that he was armed with a firearm. See Commonwealth v. McCarthy , 385 Mass. 160, 163 (1982) ("[T]he grand jury must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest him" [citation omitted] ). However, to establish probable cause for the armed home invasion charge, the Commonwealth was not obligated to supply evidence that the defendant or his coventurer was in possession of an operable firearm; evidence of a dangerous weapon sufficed. See G. L. c. 265, § 18C ("Whoever knowingly enters the dwelling place ... while armed with a dangerous weapon ..."). The Commonwealth provided ample evidence to the grand jury to establish probable cause that the defendant and his coventurer were armed with dangerous weapons.
The defendant also argues that the prosecutor intentionally sought to mislead the grand jury by his reference to the guns as "firearms" (thereby implying their operability). See Commonwealth v. O'Dell , 392 Mass. 445, 447 (1984) (dismissal of indictment proper where Commonwealth's presentation of evidence was "unfair and misleading"). This argument fails, if for no other reason, because there is no record support for the claim that the prosecutor was aware at that time that the second gun was inoperable.
Sufficiency of the trial evidence for the armed home invasion conviction . As noted, the Commonwealth proceeded under both principal and joint venture theories. The defendant appears to assume that because there was only a general verdict, his conviction cannot stand unless there was sufficient evidence under both theories. This is not the state of the law. See Commonwealth v. Rosa , 468 Mass. 231, 246 (2014), citing Commonwealth v. Zanetti , 454 Mass. 449, 467-468 (2009). In any event, for the reasons set forth below, there was sufficient evidence for the jury to proceed under either theory.
In arguing that the evidence was insufficient, the defendant focuses on proof with respect to "unlawful entry" into the victim's home. He accurately points out that the evidence tended to show that his coventurer was the one who made an initial unlawful entry into the victim's home, and that he (the defendant) subsequently entered it only after he received a message from the coventurer that "I have him." However, the fact that his coventurer invited him in does not establish that his entry was lawful. To the contrary, viewed in context, the defendant's entering the home after the "I have him" statement itself is evidence that the defendant's entry was unlawful and that he knew it to be unlawful. See generally Commonwealth v. Latimore , 378 Mass. 671, 677 (1979) (in reviewing sufficiency of evidence, we view evidence in light most favorable to Commonwealth).
Order denying motion for new trial affirmed .