Opinion
11-P-57
02-06-2012
COMMONWEALTH v. RAMON VALDEZ.
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
A jury convicted the defendant on charges of possession of burglarious instruments, G. L. c. 266, § 49, and receiving a stolen motor vehicle, G. L. c. 266, § 28(a). He presents three arguments: first, improper hearsay evidence; second, the prosecutor's improper use of that hearsay in his closing; and third, improper denial of his motion for a required finding on the charge of possession of burglarious tools. We affirm.
1. Background. Trial evidence narrated the following. At 8:30 A. M. on June 14, 2009, Chelsea police Officer Jose Otero received a police dispatch that a telephone call had been received about a 'suspicious party possibly stripping down a vehicle on the corner of Essex and Highland.' Arriving at the spot within minutes, Otero saw a young Hispanic male with a tan complexion, a goatee, and bushy curly hair, wearing blue jeans and a black and silver baseball cap. The man was crouching by the right rear passenger side of a black Honda Civic automobile, near the tire area, and appeared to be working on or removing the vehicle's tire. The man held an automobile leverage jack in one hand and a tire iron in the other. Otero approached, identified himself as a police officer, asked the man what he was doing, and then ordered him to stop. The man told Otero he did not 'want' the vehicle anymore and then took flight. Otero, observing that the car's console had been substantially damaged and disassembled, pursued on foot. A foot chase ensued down streets, through yards, down alleys, and over a fence. During the course of this chase, the fleeing man discarded a number of items, including the tire iron and jack lever, as well as a sweater vest, T-shirt, and baseball cap. Otero gathered these items and radioed other officers with an updated location and description of the fleeing suspect, who had jumped a fence at 160 Congress Avenue and continued his flight through the back yard. Officer David Rizzuto heard Otero's reports and was patrolling in that area when he saw a man answering the description run into the house at 142 Congress Avenue, where he was arrested. Otero returned to secure the evidence and the Civic. He saw that 'the car was open,' the ignition had been damaged by the use of a tool, and interior components such as the radio had been removed; the car itself had been raised up on a jack. The Civic was registered to a Daniel Cintron of Framingham, as demonstrated at trial by a certified copy of a registry of motor vehicles title inquiry.
At trial, the defendant argued mistaken identity, assisted by three members of his family. Otero testified about responding to a call about a possible stripping of a car and provided a definition of stripping. In his closing, the prosecutor argued that Otero had identified the right man and then continued:
'What is [the defendant] doing to [the Honda Civic]? He's trying to take it apart. He's trying to take the tire off and strip it. And what's inside the car -- what does the car look like? How do you know? Well, the radio is gone -- there is no radio. It's stripped. The center console is broken apart. The ignition is busted up. You heard Officer Otero talk about evidence. Daniel Cintron from Framingham, Massachusetts owns that car. [The defendant] was there, he possessed [the car], he was working on it.'
2. Claims of error. A. Hearsay. The defendant contends that Otero's testimony that he was dispatched to investigate someone 'stripping down a vehicle' was hearsay and hence improperly admitted. Because the defendant did not object at trial, we review to determine whether there was error and, if so, if it created a 'substantial risk of a miscarriage of justice.' Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). No error was shown.
Extrajudicial statements generally cannot be offered for their truth, with some exceptions. One such narrow exception is when these statements are used to explain the state of police knowledge and presence at a scene. Commonwealth v. Rosario, 430 Mass. 505, 508-510 (1999). The three conditions that must be met are set out in that case and need not be reiterated; they are satisfied here. There was no error.
B. Facts and inferences not in evidence presented at closing. The defendant argues that the prosecutor's closing referenced Otero's testimony about 'stripping' to assert, without evidence, that the defendant had been inside the vehicle and had possessed the radio or other property from inside it, or possessed the tools allegedly used to disable the ignition. Because no objection was made at trial, we review under familiar standards. See Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978). We consider the alleged erroneous aspect of the argument 'in the context of the entire argument, the instructions to the jury, and the evidence at trial.' Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 12 (2010). The judge had already made a required finding of not guilty on the charge of receiving stolen property (i.e., materials from inside the vehicle), and informed the jury prior to the closing arguments that that charge was no longer under consideration and that they were instead to consider only the charges of receiving a stolen motor vehicle and possession of burglarious tools. The judge repeatedly instructed the jury that closing statements were not evidence and were not to be used as evidence. In that context, we think that the closing statement reasonably conveyed that the defendant had asserted dominion over the vehicle and from its observable condition knew or should have known that it was stolen property, as consistent with this court's precedent. See, e.g., Commonwealth v. Aponte, 71 Mass. App. Ct. 758, 763 (2008) (altered condition of vehicle, including damaged ignition system, provided sufficient circumstantial showing that defendant knew the vehicle was stolen property). No error has been established.
At trial, the defense in chief was clearly one of alibi, misidentification, and mistaken identity, not sufficiency of the evidence of receiving a stolen vehicle. Thus, even had we found error, it would not implicate the heart of the defendant's case and would not give rise to a substantial risk of a miscarriage of justice.
C. Sufficiency of evidence. The defendant argues insufficient evidence to prove that he intended to use the tools to break into a depository. See G. L. c. 266, § 49. First, he argues that the passenger compartment of an open car is not necessarily a depository, and second, that the evidence could not establish the defendant's intent to break into the vehicle for the purpose of committing a crime. We consider under the familiar Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), standard. Neither claim persuades.
'Whoever . . . knowingly has in his possession, an engine, machine, tool or implement adapted and designed for cutting through, forcing or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose . . . shall be punished.' G. L. c. 266, § 49, as amended by St. 1966, c. 269, § 1.
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The case law instructs that a 'depository' must be 'an enclosed area that may be used for the storage of personal property.' Commonwealth v. Hogan, 41 Mass. App. Ct. 73, 75 (1996). Implicit in this may be a requirement that the enclosed area not be generally accessible for routine public access. See Commonwealth v. Schultz, 17 Mass. App. Ct. 958, 958-959 (1983) (holding that a boat storage area, open to pedestrian access and open to the sky, is not a depository). '[W]e do not doubt that the passenger compartment of an automobile may be found to be a depository.' Commonwealth v. Aleo, 18 Mass. App. Ct. 916, 917 (1984). Although Aleo concerned a closed vehicle, we hold that an enclosure does not lose its essential characteristic if it happens on a particular occasion to be open. An unlocked or open passenger compartment of an automobile may still be a depository under G. L. c. 266, § 49.
Similarly, although tire irons and automobile jacks are also ordinary tools that may be legally possessed, the intent to use them as burglarious tools can be proven by the circumstances. See Commonwealth v. Dellinger, 10 Mass. App. Ct. 549, 561 (1980). Here, the defendant was seen using the tools to remove components of a vehicle belonging to another, where that vehicle was missing its radio and had damage to its ignition. When confronted by a police officer, the defendant declared he no longer wanted the car (registered to another) and then fled precipitously; he discarded the tools as he led police on a foot chase through a neighborhood's yards and alleyways before seeking sanctuary at his mother's apartment.
The burglarious tools statute does not require that the entry be for the crime of taking valuables from the depository; instead, it can be for 'other crimes' that could still be committed within the depository. Commonwealth v. Krasner, 358 Mass. 727, 730-731 (1971) (a man found with a battering ram for the purpose of breaking into a university official's office to hold a sit-in protest, thereby committing trespass, was just as guilty under the burglarious tools statute as if he had plans to steal valuables). Here, the other crime would be possessing or receiving the stolen motor vehicle, which the defendant would have committed by entering the passenger compartment. The statute specifies intent to commit the crime, not its actual accomplishment. '[T]he gist of the offense lies in the possession of the tools, the purpose for which they are possessed, and their suitability for that purpose.' Commonwealth v. Aleo, 18 Mass. App. Ct. at 917. No error has been shown.
Judgments affirmed.
By the Court (Mills, Milkey & Carhart, JJ.),