Opinion
10-P-2211
05-11-2012
COMMONWEALTH v. CHESTER STEVENSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 15, 2010, the defendant was convicted of one count each of breaking and entering a dwelling in the nighttime with the intent to commit a felony, G. L. c. 266, § 15; larceny of property over $250, G. L. c. 266, § 30; operating a motor vehicle after the suspension of a license, G. L. c. 90, § 23; and failure to stop for a police officer, G. L. c. 90, § 25.
The convictions arose from a theft on February 9 or 10, 2007, of items from a house located at 62 Higley Road in Ashland. The defendant appeals, arguing that (1) the evidence at trial was insufficient to establish that the defendant broke into the house and stole property, (2) defense counsel rendered constitutionally ineffective assistance when he failed to move to strike portions of the testimony of a police expert, (3) the prosecutor in her closing impermissibly urged the jury to draw scientifically indefensible inferences from the footwear impressions evidence collected at the scene, (4) the trial judge failed to properly instruct the jury on the meaning of the term 'value,' and (5) the trial judge erred in denying the defendant's motion to reduce the verdict, pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995), because a conviction on the charge of breaking and entering in the daytime was more consonant with justice. We affirm.
Discussion. In considering a claim of insufficient evidence, the question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). The evidence here included testimony that the defendant was seen on February 10 operating and subsequently fleeing from a vehicle containing items reported stolen that morning, and forensic footprint evidence (a plaster casting made from footware impressions discovered in the snow-covered grass in the front and back yard surrounding the Meeks' home). On February 12, another item reported stolen, a necklace shaped like the Star of David, was found in an apartment the defendant was seen leaving on February 10. The evidence here was sufficient for the jury to conclude that the defendant had broken into the Meeks' home and stole property. Furthermore, it substantially exceeds the evidence in those cases cited by the defendant in which the Latimore standard was not met. Compare Commonwealth v. Bennefield, 373 Mass. 452, 453 (1977); Commonwealth v. Morris, 422 Mass. 254, 256 (1996); Commonwealth v. Estremera, 37 Mass. App. Ct. 923, 924 (1994).
Among these was a particularly distinctive item, namely an LL Bean backpack with a light blue Hawaiian print, embroidered with the initials of Caitlyn Meeks, one of the occupants of 62 Higley Road.
With regard to the defendant's second argument, we conclude that trial counsel did not provide constitutionally ineffective representation by failing to object to Trooper Bruno's testimony regarding the footwear comparison. The defendant has satisfied neither prong of the test set out in Commonwealth v. Saferian, i.e., he has not shown that defense counsel's performance reflected 'serious incompetency, inefficiency, or inattention . . . falling measurably below that which might be expected from an ordinary fallible lawyer' or that such failings 'likely deprived [the defendant] of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1976). Here, as mandated by the judge both before Bruno testified, and at sidebar during the expert testimony, Bruno limited her testimony to descriptions of the process that is used in making a footwear comparison, and did not offer any improper opinion testimony. Therefore, the absence of an objection to Bruno's testimony did not constitute ineffective assistance of counsel. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
Bruno's testimony was not, as the defendant suggests, 'laced with improper opinions that could be understood by the jury as a direct comment as to guilt,' see Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 458 (2006), nor did it constitute 'impermissible vouching.' See Commonwealth v. LaCaprucia, 41 Mass. App. Ct. 496, 498 (1996).
With regard to the defendant's third argument, we conclude that the prosecutor's unobjected-to statement in her closing did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Kee, 449 Mass. 550, 559 n.11 (2007). 'A prosecutor may argue strenuously . . . that the jury should credit certain testimony or draw certain inferences consistent with the evidence before them.' Commonwealth v. Merry, 453 Mass. 653, 667 (2009). Here, the prosecutor suggested in her closing that the jury, after evaluating the footprint evidence, 'will conclude those are Chester Stevenson's shoes, the shoes he was wearing [on February 10].' The prosecutor's remark meets the threshold of propriety set in Merry. However, even if the remark was error, its admission does not 'make plausible an inference that the [trial] result might have been otherwise but for the error,' and therefore did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).
With regard to the defendant's fourth argument, as defense counsel did not object to the jury instruction at trial, we review the claimed error for a substantial risk of a miscarriage of justice. See Commonwealth v. Mercado, 456 Mass. 198, 205 n.14 (2010). Here, there was no error in the jury instruction. The judge informed the jury that they must determine 'whether the value of the property that was stolen was worth more than $250,' and that they must 'make that determination separately with respect to each of the indictments.' The law in Massachusetts does not require any more specific instruction. At a minimum, the jury 'must be instructed that they must determine the value of the property so destroyed or injured . . . .' Commonwealth v. Walters, 12 Mass. App. Ct. 389, 394 (1981). The judge's instruction met this threshold.
The following additional text for a valuation instruction has been suggested: 'You may use your general knowledge of evaluating the value of a piece of property; it is not required that you have any expert evidence of its value.' Instruction 2.38, Massachusetts Superior Court Criminal Practice Jury Instructions (MCLE 1st Supp. 2003), as derived from Instruction 5.41, Model Jury Instructions for Use in the District Court (MCLE 1995). Though an inclusion of this sentence would have been preferable, the instruction as given was not deficient.
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With regard to the defendant's final argument, we conclude that the judge was within her discretion to deny the defendant's rule 25 motion to reduce the verdict. See Commonwealth v. Woodward, 427 Mass. 659, 668 (1998). There is no evidence supporting the defendant's contention that the judge applied an improper standard in evaluating the motion. The judge's statement in her ruling on the motion that the evidence was 'clearly sufficient to support a finding that the defendant was guilty' of breaking and entering a dwelling during the nighttime, in no way indicates, as the defendant claims, that the judge 'limit[ed] herself to an assessment of the sufficiency of the evidence.' Here, the judge was well within her discretion to deny the motion based on both the strong evidence before the jury and the absence of any indication that the jury's verdict was not 'consonant with justice.' Id. at 666.
Judgments affirmed.
By the Court (Grasso, Mills & Trainor, JJ.),