Opinion
No. 11–P–980.
2013-12-17
COMMONWEALTH v. Scott M. VURPILLATTE.
The court explained that the rationale for these limitations was “that the admission of feeble third-party culprit evidence poses a risk of unfair prejudice to the Commonwealth, because it inevitably diverts jurors' attention away from the defendant on trial and onto the third party, and essentially requires the Commonwealth to prove beyond a reasonable doubt that the third-party culprit did not commit the crime.” Ibid.
By the Court (RAPOZA, C.J., FECTEAU & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions for a nighttime breaking and entering with intent to commit a felony and for larceny over $250, and from the denial of his motion for new trial. First, he claims that his motion for required findings of not guilty was denied in error because there was insufficient evidence both that he was involved in the crimes and that the break-in occurred in the nighttime. Second, he claims the judge abused her discretion by failing to hold an evidentiary hearing on his new trial motion and erred by denying that motion, as defense counsel provided ineffective assistance by failing to adequately prepare for trial by, among other things, obtaining the services of fingerprint and medical experts to refute the Commonwealth's evidence. We affirm. Denial of the motion for required findings of not guilty. The defendant first contends that the Commonwealth presented no evidence that the break-in occurred in the nighttime. However, testimony from the homeowner and its reasonable inferences, when viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979), was sufficient to support this element of the offense. Specifically, the homeowner stated that he left the house at night when it was completely dark and when he returned in the morning he discovered the theft. See Commonwealth v. Turner, 28 Mass.App.Ct. 909, 911 (1989) (direct evidence of time of break-in not required to prove that crime was committed during the nighttime).
The defendant's appeals from these separate events have been consolidated.
The defendant also contends that the presence of his fingerprint is insufficient evidence of his involvement in the offenses. We recognize that, ordinarily, “the presence of a fingerprint at the scene of the crime is not by itself a sufficient basis for submitting a case to a jury.” Commonwealth v. Fazzino, 27 Mass.App.Ct. 485, 487 (1989). The rationale for this general rule is that a fingerprint alone is insufficient evidence that the fingerprint was applied at the time of the offense. To obtain the benefit of an inference that the fingerprint was applied at the time of the offense, “the prosecution must couple the fingerprints with evidence which reasonably excludes the hypothesis that the fingerprints were impressed at a time other than when the crime was being committed.” Ibid. See Commonwealth v. Morris, 422 Mass. 254, 257 (1996).
Here, the Commonwealth provided such additional evidence: the defendant's fingerprint was found on the painted surface of an immoveable object (the doorframe of an upstairs bathroom), the defendant admitted that he had never done work in the home and had never even been to the home, and the homeowner confirmed this latter information. In our view, the evidence of the defendant's involvement in the offense, including the presence of his fingerprint, is stronger than that held sufficient in Commonwealth v. Fazzino, supra. In that case, the defendant's fingerprints were found on a file box in an office that was broken into. Id. at 485–488. Notably, unlike the case at bar, the defendant in Fazzino had legitimate reasons for his presence in the office before the break-in. Id. at 487. Nonetheless, the court stated: “The case against Fazzino was far from overwhelming, but there was evidence which, when coupled with the fingerprints, rationally linked him to the crime.” Id. at 488. Therefore, in this case, the judge properly denied the defendant's motion for required findings of not guilty.
Denial of the motion for new trial and evidentiary hearing. “Our review of the grant or denial of a motion for new trial is limited to whether the judge's decision constitutes an abuse of discretion or contains any other error of law.” Commonwealth v. Lane, 462 Mass. 591, 597 (2012). “In connection with this review, we give ‘special deference’ to both the findings of fact ... and the ultimate decision of the motion judge where, as here, [she] also served as the trial judge.” Ibid. (citations omitted). “The judge may rule on the motion for a new trial from the face of the affidavits or other supporting material, without an evidentiary hearing, ‘if no substantial issue is raised by the motion or affidavits.’ Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001).” Commonwealth v. Marrero, 459 Mass. 235, 240 (2011).
Here, because the defendant's motion rests on claims of ineffective assistance of counsel, the defendant must show that counsel's conduct fell “measurably below that which might be expected from an ordinary fallible lawyer” and that, as a result, the defendant was “likely deprived ... of an otherwise available, substantial ground of defense.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
With respect to those claims supported solely by the defendant's affidavit, we see no error of law or abuse of discretion. The judge was entitled to discredit the defendant's self-serving affidavit. See Commonwealth v. Marrero, supra at 241. Further, such an affidavit is insufficient to raise a substantial issue warranting an evidentiary hearing. Ibid.
With respect to the claims that were supported by affidavits from others, we agree with the motion judge's conclusions. As to the claim that counsel was ineffective for having failed to obtain and present an opinion from a fingerprint expert, the defendant failed to make any showing that such assistance would have influenced the outcome of the case. See Commonwealth v. Rice, 441 Mass. 291, 303 (2004).
The defendant's claim of ineffective assistance for counsel's failure to obtain and utilize a medical expert to support the defendant's contention that, since he was disabled from lifting and carrying heavy objects, he could not have been involved in the theft similarly fails. First, while the medical affidavit came from an orthopedic surgeon, the surgeon was not the defendant's treating physician and it appears that the surgeon's opinion was based solely on medical records and not upon an examination of the defendant. Second, evidence of the defendant's disability was offered by his wife. We recognize that an opinion from a putative impartial physician might be more credible to a fact finder than one from a partial family member, in spite of the likelihood of the wife's more frequent and sustained observations of such inability. Nonetheless, we agree with the judge's observation that this crime was likely committed by more than one person, given the weight of some of the objects that were stolen. Therefore, the judge correctly concluded that the lack of testimony from a medical expert would not have resulted in a deprivation of a defense to these charges because such evidence would not have eliminated the likelihood of a joint criminal venture.
The homeowner testified that a vanity, light fixtures, ceiling fans, and a claw foot tub were missing from the house.
Lastly, the defendant contends that counsel was ineffective for failing to develop an available defense of a third-party culprit. In support of his argument, the defendant provided an affidavit of an investigator who reviewed three other crimes that occurred within a month of the crimes in question. In Commonwealth v. Silva–Santiago, 453 Mass. 782, 801 (2009), the Supreme Judicial Court explained the two limitations to the admissibility of third-party culprit evidence:
“First, because the evidence is offered for the truth of the matter asserted—that a third party is the true culprit—we have permitted hearsay evidence that does not fall within a hearsay exception only if, in the judge's discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime. Second, the evidence, even if it is not hearsay, must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative.” (Quotations and citations omitted.)
The court explained that the rationale for these limitations was “that the admission of feeble third-party culprit evidence poses a risk of unfair prejudice to the Commonwealth, because it inevitably diverts jurors' attention away from the defendant on trial and onto the third party, and essentially requires the Commonwealth to prove beyond a reasonable doubt that the third-party culprit did not commit the crime.” Ibid.
Here, the judge was correct to reject the defendant's showing, concluding that the investigator's affidavit was vague and failed “to raise any substantial issue regarding third party culprit evidence that would be potentially admissible in any new trial. See Commonwealth v. Smith, [461 Mass. 438, 446–448 (2012) ].” The affidavit offered an unsupported and inadmissible opinion that three other crimes of the same type were committed by similar methods and in the same vicinity as the crimes in question without any details or specifics. The defendant also did not provide police reports from which the judge could determine whether there was sufficient “connectivity” linking the offenses. Moreover, the investigator does not state whether anyone was convicted or even arrested for these offenses. Therefore, the affidavit gave no basis to conclude that someone other than the defendant committed these other offenses.
Based on the above, we conclude that the judge committed no error of law and acted within her discretion in denying the motion and the request for an evidentiary hearing.
Judgments affirmed.
Order denying motion for new trial affirmed.