Opinion
18-P-955 18-P-1227 18-P-1683
10-20-2020
COMMONWEALTH v. Darrell WHEELER (and two companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a joint trial, a jury convicted three defendants, Darrell Wheeler, Kyriakoula Iliopoulos, and Justice Gonzalez of conspiring to violate drug laws, G. L. c. 94C, § 40. On appeal, the defendants raise several joint and individual claims. We review the following issues: (1) the denial of severance, (2) the admission of testimony that referenced gang affiliation, (3) the admission of the recorded telephone calls, and (4) the sufficiency of the evidence, and we affirm all three convictions.
The Commonwealth entered a nolle prosequi for all three defendants on charges of extortion by threat of injury, G. L. c. 265, § 25, possession with intent to distribute class A and B substances, G. L. c. 94C, §§ 32 (a ), 32A (a ), and intent to deliver an article to a prisoner contrary to the rules of the institution, G. L. c. 268, § 31.
Background. In a recorded telephone call, Gonzalez, an inmate at the Essex County House of Correction, stated that he needed somebody with "them ... shits." In response, Wheeler implied that he would acquire these items, stating "those shits are hard to come by ... but I try my best." Wheeler subsequently made statements that seemingly confirmed this agreement, such as "[i]f I do get them, ... how are we going to do this?"; and "when I get it all ... when I get everything, what ... am I supposed to do then?"
In another call, Gonzalez told Iliopoulos, "I need to do that ... thing .... I got somebody over here that they could get through, ... their shits only 300.... I need somebody to help me on with the other half.... I was going to get Liza because ... Liza's like the only person I know who could find the shits. I don't know if you could find them. You know what I'm talking about." Gonzalez and Iliopoulos then discussed contacting another person "because she's got the [money] to make the move." Iliopoulos asked whether this third party "knows the name and shit?" and Gonzalez responded, "She'll know it tomorrow."
The next day, Iliopoulos told Gonzalez, "I seen her for the money." Wheeler then joined the call and Gonzalez informed Wheeler that Mazza's "bail is only three hundred or whatever"; Gonzalez then spelled out Mazza's name and provided Wheeler with Mazza's MSA number.
The following day, Iliopoulos posted bail for Mazza. Two days later Iliopoulos revoked her surety and Mazza was returned to the Essex County House of Corrections. Upon return to the jail, Mazza self-identified as a gang member, which would generally result in him being housed in the same unit as Gonzalez. Before being placed in the gang unit, however, Mazza was held in an isolation cell with "dry status." While Mazza was waiting in the "dry status" cell, contraband -- including purple pills, heroin, marijuana, tobacco, and a lighter -- were recovered from Mazza's several bowel excretions.
Discussion. 1. Severance. "[S]everance is usually a matter within the sound discretion of the trial judge." Commonwealth v. Moran, 387 Mass. 644, 658 (1982). "Generally, severance will not be granted unless the defenses of the codefendants conflict to the point of being mutually antagonistic and irreconcilable" (quotation omitted). Commonwealth v. Masonoff, 70 Mass. App. Ct. 162, 167 (2007). Severance may also be appropriate, however, where "the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial." Moran, 387 Mass. at 658. Neither of these circumstances existed here. "[D]efenses are mutually antagonistic and irreconcilable where the sole defense of each [is] the guilt of the other.... Severance is not required where the defendants merely assert inconsistent trial strategies" (quotations omitted). Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011).
Gonzalez asserts that Iliopoulos's defense at trial was antagonistic to his defense. We are not persuaded. Iliopoulos's defense centered on the idea that she was merely doing an innocent favor for a friend. Gonzalez's defense, on the other hand, was premised on a theory that he was misidentified. "[I]t is not enough that the defendants are hostile to one another or that one defendant would have a better chance of acquittal if tried alone." Commonwealth v. McAfee, 430 Mass. 483, 486 (1999). "Rather, severance is mandated only if their defenses conflict to the point of being mutually antagonistic and irreconcilable." Id. Where one defendant asserted that he or she was misidentified while a second defendant argued that an unnamed companion committed the crime, as was the case here, such defenses were not mutually antagonistic. See id. (defenses were not mutually antagonistic where the defendant's primary defense was that he had been misidentified while a codefendant testified that an unidentified companion had been the shooter). Accordingly, the judge did not abuse his discretion in denying Gonzalez's request for a severance on that basis.
Even if the defenses were mutually antagonistic, "there is no compelling prejudice and therefore no requirement of severance where the jury were warranted in finding [the defendant] guilty ... on the basis of eyewitness testimony [and other evidence]" (quotation omitted). Siny Van Tran, 460 Mass. at 543. Because the evidence establishes that Gonzalez asked the codefendants to get the "shits," arranged for Mazza to be bailed out, and then Mazza returned with contraband, the jury was warranted in finding Gonzalez guilty.
We also reject Gonzalez's and Iliopoulos's contentions that severance was required on the basis of compelling prejudice. To succeed on an assertion of compelling prejudice, the defendants must make a "strong showing of prejudice" (quotation omitted) that "was beyond the curative power of the judge's limiting instructions." Commonwealth v. Allison, 434 Mass. 670, 679 (2001). "Bare assertions of prejudice are not enough." Id. Accordingly, Gonzalez's mere claim of prejudice, without more, does not meet this test. Iliopoulos's claims fare no better.
Iliopoulos contends that the joint trial of several defendants created an "atmosphere of prejudice" warranting reversal. We are not persuaded. Despite the number of defendants, "the evidence was [not] so complex as necessarily to result in confusion." Commonwealth v. Benjamin, 3 Mass. App. Ct. 604, 625 (1975).
Iliopoulos's further contention that her trial was "tainted" by the "attitude" the jury may have towards the codefendants also lacks merit. The judge's instruction, which the jury is presumed to follow, that "[e]motion ... for one party or another has no place in your deliberations," sufficiently cured the possibility of any prejudice. See Commonwealth v. Wolfe, 478 Mass. 142, 152 (2017) ("the jury are presumed to follow the judge's instructions").
2. Gang affiliation. We also reject the contention that the trial judge abused his discretion in allowing testimony that used the word "gang" or suggested a possible gang affiliation. "[W]here evidence of gang affiliation is relevant ..., it is within the discretion of the judge to weigh the probative value of the evidence against its prejudicial effect." Commonwealth v. Correa, 437 Mass. 197, 201 (2002). Evidence that Gonzalez was housed in a gang unit was highly relevant to the Commonwealth's conspiracy theory that Mazza self-identified as a gang member to secure housing in the same unit with Gonzalez so he could give Gonzalez the items Mazza had obtained while on bail. Moreover, although we recognize that "evidence of a defendant's gang membership risks prejudice to the defendant in that it may suggest a propensity to criminality or violence," Commonwealth v. Phim, 462 Mass. 470, 477 (2012), such prejudice was quite minimal here. The correction officers explained to the jury that the particular gang unit in which the defendant was housed was frequently used as an overflow unit and, therefore, an inmate's assignment to such unit did not necessarily mean that the inmate was indeed gang affiliated. The judge also gave appropriate limiting instructions regarding gang affiliation and pointed out that there were no allegations in the case that any of the defendants were actually gang members. We perceive no error.
The remaining uses of the word "gang," almost exclusively used for witnesses to describe their job functions and training experience, were "isolated, fleeting, and completely unrelated to the theory and evidence against the defendant." Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 872 (2010). Thus, such references had a negligible effect, if any, on the ultimate verdict. See id.
3. Wheeler's arguments. Finally, we reject Wheeler's claims that the trial judge erred in admitting the recorded telephone calls, in allowing the identification evidence of Wheeler's voice, and in finding the evidence sufficient.
a. Recorded calls and voice identification. "In the discretion of a trial judge, a voice identification may be considered by a jury as long as the witness expresses some basic familiarity with the voice he or she claims to identify." Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522, 527 (1988). Detective Withrow, who identified Wheeler's voice on the recording, explained that he had known the defendant for "[a]pproximately ten years." Withrow also testified to being familiar with Wheeler's voice because he had spoken with Wheeler multiple times and had heard Wheeler speaking with other people. On this record, Withrow clearly possessed a "basic familiarity" with Wheeler's voice and thus could properly identify it at trial.
Although Withrow's testimony regarding prior interactions with Wheeler contained some inconsistencies, such inconsistencies went to the weight of the identification rather than the admissibility. See Commonwealth v. Forte, 469 Mass. 469, 478 (2014) (inconsistencies in identification go to weight, not admissibility). See also Commonwealth v. Ferreira, 77 Mass. App. Ct. 675, 678 (2010), rev'd on other grounds, 460 Mass. 781 (2011) ("To the extent that there were any inconsistencies or contradictions in the victim's testimony or identifications, they only would affect the weight and credibility of the evidence, which are matters within the jury's province to resolve").
Wheeler maintains the voice identification should be excluded as an improperly suggestive aural "show-up" identification. Wheeler cites cases where a victim, or other eyewitness, identified a defendant as the person whose voice matches the voice heard during the commission of a crime. See Commonwealth v. Chamberlin, 86 Mass. App. Ct. 705, 706 (2014), S.C., 473 Mass. 653 (2016) (identifying a masked robber by voice); Commonwealth v. Gauthier, 21 Mass. App. Ct. 585, 587 (1986) (identification by voice after defendant was required to repeat threats heard at time of crime); Commonwealth v. Powell, 10 Mass. App. Ct. 57, 60 (1980) (identification by voice after defendant was required to repeat vulgar words victim heard at time of the crime). The identification of a voice on a recording played at trial is not analogous to an identification by a victim or eyewitness of an unpreserved voice heard during the commission of the crime. Thus, we do not analyze the identification to determine whether it was impermissibly suggestive.
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We also see no error in the admission of the recorded telephone calls without a transcript or in the absence of expert testimony to explain the slang terms contained within it. Because the defendant did not object at trial, we review this challenge for a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010).
As a general rule, "[w]here the statement is in English, the prosecution may offer the recording in evidence without a transcript and rely on the fact finder's understanding of the recorded words." Commonwealth v. Portillo, 462 Mass. 324, 327 (2012). We are not aware of any precedent which creates an exception to this rule for recordings that contain slang terms, and see no need to extend such exception for the use of the slang terms referenced in the recordings introduced at trial here.
There was testimony at trial that coded language in prison was "always changing." In most instances, the context in which the words were used provides the best meaning to these coded slang terms. See Commonwealth v. Rosa, 468 Mass. 231, 240 (2014) (Commonwealth provided context to jail telephone calls, where an expert could not practically provide such context). In the context of an illicit plan involving the bailing out and returning of Mazza to the jail within a couple of days, followed by evidence that Mazza's feces contained heroin, purple pills, and other contraband, the jury could reasonably infer that the use of the words "it" and "shits" on the recordings referenced this contraband.
b. Sufficiency. Last, Wheeler appears to raise two sufficiency challenges. He first asserts that there was insufficient evidence to admit the statements of Iliopoulos and Gonzalez as coconspirator statements. He then contends that, in any event, there was insufficient evidence for a jury to find him guilty of a conspiracy. Neither challenge has merit.
To admit statements of a coconspirator against a defendant, "a court must find, by a preponderance of the evidence, the existence of a joint venture independent of the statement being offered." Commonwealth v. Holley, 478 Mass. 508, 534 (2017). Such preliminary finding was warranted here. In a telephone call on March 6, 2014, Gonzalez told the defendant that Gonzalez needed somebody with them "shits" and a voice identified as Wheeler implied that he would acquire them. In obvious recognition of the difficulty of getting these items into the jail, Wheeler asked, "If I do get them, ... how are we going to do this?" Later in the call, Wheeler offered to "get it all" and reiterated, "when I get everything, what ... am I supposed to do then?" These statements sufficiently supported a determination that Wheeler joined the conspiracy as early as March 6, 2014.
Similarly, there was sufficient evidence for the jury to find Wheeler guilty of the conspiracy. We review sufficiency arguments to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "To prove a conspiracy, the Commonwealth must prove that the defendant combined with another with the intention to commit the object crime" (quotations omitted). Commonwealth v. Nee, 458 Mass. 174, 180-181 (2010). "The law of this Commonwealth does not limit the manner of proving the crime of conspiracy to direct evidence of an accused's participation in the conspiracy or to his admission of such participation. Nor does it preclude proof of this crime by circumstantial evidence." Commonwealth v. Nelson, 370 Mass. 192, 200 (1976).
As previously discussed, the Commonwealth presented telephone calls in which Wheeler agreed to acquire the "shits" for Gonzalez. The two also discussed pricing, with Wheeler stating "prices are nice right now." In a later call, Gonzalez informed Wheeler that "bail is only three hundred or whatever" and he then provided Mazza's name and MSA number to Wheeler. Mazza was bailed out of jail the next day and returned two days later with contraband smuggled in his body. Based on this evidence, a jury could reasonably conclude that Wheeler agreed to participate in a conspiracy to violate the drug laws. See Commonwealth v. Joyner, 467 Mass. 176, 179-180 (2014) ("The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable" [quotation omitted] ). There was no error. Compare id. at 184-185.
Judgments affirmed.