Opinion
13-P-255
03-19-2015
COMMONWEALTH v. DARYL TAVARES.
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, Daryl Tavares, was charged with breaking into five homes over a twenty-month period, each incident resulting in a set of three indictments for (1) breaking and entering with the intent to commit a felony, G. L. c. 266, § 18; (2) larceny over $250, G. L. c. 266, § 30; and (3) wanton and wilful destruction of property over $250, G. L. c. 266, § 127. The defendant was also indicted as a habitual offender under G. L. c. 279, § 25, with respect to each breaking and entering charge. The fifteen indictments were joined for trial, and a jury convicted the defendant on four sets of indictments, acquitting him of the set of charges arising from one of the alleged break-ins. Following a jury-waived trial on the recidivist portion of the four breaking and entering convictions, see G. L. c. 278, § 11A, the judge found him guilty as a habitual offender.
The judge sentenced the defendant, sua sponte, as a common and notorious thief under G. L. c. 266, § 40, with respect to the four larceny convictions.
The defendant argues on appeal that the evidence at trial was insufficient to support the convictions and that the offenses were erroneously joined for trial. The defendant also raises several additional issues under Commonwealth v. Moffett, 383 Mass. 201, 208 (1981). We affirm.
Sufficiency of the evidence. The only evidence that established the defendant's identity was deoxyribonucleic acid (DNA) consistent with his DNA profile that was found on various personal items left behind at each crime scene. Without more, the defendant argues, this evidence was insufficient to sustain his convictions.
The DNA at the first, third, fourth, and fifth crime scenes was attributed to a single source, while the DNA at the second crime scene was a mixture from multiple contributors. The acquittals pertained to the second crime scene.
In general, the presence of a fingerprint at the crime scene is not a sufficient basis for a conviction. The Commonwealth must prove that the defendant left his fingerprint at the crime scene during the commission of the offense. See Commonwealth v. Fazzino, 27 Mass. App. Ct. 485, 487 (1989); Commonwealth v. Palmer, 59 Mass. App. Ct. 415, 420-421 (2003). We assume that the same holds true for the presence of DNA. Here, the Commonwealth presented strong evidence that the personal items bearing the defendant's DNA were found at the crime scenes immediately after the break-ins and had not been there earlier in the day.
The defendant therefore relies on two cases in which evidence of the defendant's identity was left behind during the commission of the crime but was nonetheless held to be insufficient to support the conviction. In Commonwealth v. Morris, 422 Mass. 254, 255-256 (1996), the defendant's thumbprint was found on a clear plastic clown mask worn by one of the assailants and left behind at the scene of a fatal home invasion. In Commonwealth v. Renaud, 81 Mass. App. Ct. 261, 262-263 (2012), an electronic bank transfer (EBT) card in the defendant's name, taped together in three separate pieces, was left behind during a burglary. In both cases, the evidence permitted a reasonable inference that the defendant was involved in the crime, but the evidence did not warrant a finding beyond a reasonable doubt "that the thumbprint was placed on the mask during the commission of the crime," Morris, supra at 259-260, or that the defendant "possessed, and subsequently dropped, his EBT card during the crime." Renaud, supra at 264.
Unlike in Morris and Renaud, where the evidence did not rule out a reasonable possibility that the defendant touched the clown mask or discarded the EBT card at some point before the crime, given the personal nature of the items found at the sites of the four break-ins -- a hat, a glove, a cigarette, and a beer can -- a jury could have concluded beyond a reasonable doubt that the defendant himself left the items behind during the commission of the crimes.
Moreover, the fact that DNA consistent with the defendant's profile was found at all the different sites excluded any reasonable possibility that the defendant had touched these items elsewhere and that another person deposited them at the crime scenes. Because the jury likely took into account the multiple offenses linked to the defendant, we next turn to the question of whether the indictments were properly joined for trial.
Joinder. "[T]o prevail on a claim of misjoinder, the defendant 'bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.'" Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting from Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). A judge's decision to join offenses for trial will not be disturbed on appeal "unless there has been 'a clear abuse of discretion.'" Pillai, supra, quoting from Commonwealth v. Walker, 442 Mass. 185, 199 (2004).
The motion judge acted well within her discretion to join the charges for trial. As in Commonwealth v. Magri, 462 Mass. 360, 365 (2012), the five incidents that were tried together here "are connected by details that reveal a pattern of criminal activity": the time of day, the mode of entry, the nature of the items stolen (jewelry, portable electronic devices, and cash), and the proximity of the crime scenes. While the five break-ins took place over a twenty-month span, as opposed to the three-month time span in Magri, "[t]emporal remoteness of the conduct is less significant where there is an ongoing and overlapping pattern of similar conduct." Commonwealth v. Sharpe, 454 Mass. 135, 144 (2009).
In addition, as defense counsel conceded at the hearing on the dueling motions to join and to sever, "[I]t would be a burden on the court to separate five separate trials." To have separate trials on each set of indictments would have required the Commonwealth to call its expert forensic witnesses to testify at five trials to introduce and explain the DNA evidence. See Gaynor, supra at 259.
Moffett claims. We have carefully considered the Moffett claims raised by the defendant and by appellate counsel on his behalf. We discern no error.
Double jeopardy claims. First, the defendant argues that the Commonwealth violated the prohibition against double jeopardy by prosecuting him for both breaking and entering with the intent to commit a felony and for larceny over $250 with respect to each incident, and by charging him with multiple indictments. We conclude that the twelve convictions are not barred by double jeopardy or due process principles.
"[A] defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not." Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). See Commonwealth v. Ford, 397 Mass. 298, 302 (1986) (charges of breaking and entering in the nighttime with intent to commit a felony, larceny in a building, and malicious destruction of property arising from the same incident held not duplicative). Here, "neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative]." Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Jones, 382 Mass. 387, 393 (1981). Furthermore, the five sets of indictments related to "distinct" crimes. Commonwealth v. Crocker, 384 Mass. 353, 356 (1981). The offenses were committed at different times and locations, and involved different victims.
Sentencing enhancements. The defendant also argues that the judge improperly sentenced him as a habitual offender and a common and notorious thief, pursuant to G. L. c. 279, § 25, and G. L. c. 266, § 40. We disagree. Both sentences comported with their respective statutory requirements and were based on distinct criminal offenses. See Crocker, supra at 354-356.
DNA sample. Next, the defendant argues that the motion judge erred in allowing the Commonwealth's motion to compel him to provide a buccal swab for the purpose of DNA testing. Postindictment, a judge may order a defendant to provide a buccal swab so long as the Commonwealth establishes that "the sample sought will probably provide evidence relevant to the question of the defendant's guilt." Commonwealth v. Maxwell, 441 Mass. 773, 779 (2004). Here, the Commonwealth filed the motion five months after the defendant was indicted and made the requisite showing. These proceedings did not violate the defendant's "protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches and seizures." Id. at 777.
Prosecutorial misconduct. The defendant takes issue with the prosecutor's conduct before the grand jury and at trial, but does not support his argument with citations to the record. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) (arguments in brief shall cite to "parts of the record relied on"). Because his allegations of prosecutorial misconduct are conclusory and the record before us is insufficient to evaluate them, we cannot address this claim. See Commonwealth v. Johnson, 54 Mass. App. Ct. 224, 235 (2002); Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 539 (2014).
Ineffective assistance of counsel. Finally, the defendant alleges that trial counsel was ineffective based on numerous acts and omissions. As the factual basis for the defendant's ineffective assistance claim does not appear indisputably on the record, we decline to address the allegations. The preferred method for raising this claim is through a motion for new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 19, 2015.