Opinion
18-P-1007
11-21-2019
COMMONWEALTH v. Jerry ANITUS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 27, 2013, a masked man robbed a supermarket in Attleboro at gunpoint. According to eyewitness testimony, the man entered the store shortly before 9 P.M. and vaulted over a four-foot, three-inch high wall to get into the store's customer service booth, where he took money from a cash register drawer while aiming a gun at a store clerk. After the robber fled, the defendant's cell phone was found on the floor of the booth. The defendant was charged with the robbery (and related offenses) based on the theory that the robber lost the phone during the incident when he leapt over the wall. After a five-day trial, a Superior Court jury convicted the defendant of one count of armed robbery while masked and one count of assault by means of a dangerous weapon (the gun). The trial judge denied the defendant's motion for new trial, and the defendant's appeal of that order and his direct appeal were consolidated. We affirm.
Background. 1. The Commonwealth's case. We summarize the Commonwealth's evidence as follows.
a. Cell phone. As noted, the key evidence linking the defendant to the robbery was that his cell phone was found on the floor of the customer service booth soon after the robber departed from the scene. A store employee called the police after the robbery, and a recording of that 911 call was entered in evidence and published to the jury. The recording was annotated with the time 20:56:27. The jury reasonably could have interpreted one of the speakers on the call, an apparent bystander who saw the putative robber escape in a car with another individual, as reporting that store employees were excited because they had discovered that the robber had dropped his phone. The defendant stipulated at trial that the phone was his. There also was evidence that the phone's memory was remotely "wiped" soon after the robbery and before the police could execute a search warrant on the phone the following day. The jury reasonably could have inferred that it was the defendant who wiped the phone's memory.
At one point, the speaker relayed to the dispatcher that the employees were excited because the robber(s) had been caught. She then corrected herself and clarified that the apparent excitement was because a phone belonging to one of the robbers had been discovered. Specifically, she stated, "They dropped their phone, so they're excited because they got their phone."
b. Eyewitness accounts. Six eyewitnesses to the robbery testified at trial. Because the robber was masked, these witnesses were able to provide only limited testimony about his appearance. They consistently testified that the robber was a black male wearing dark clothing and a mask that covered part of his face, and they variously described his over-all build as "thin," "skinny," "slender," and "athletic." They also described him as being "tall" or "very tall." However, when pressed to estimate the robber's height, the eyewitnesses gave estimates that ranged from five feet, six inches tall to "pretty close to six feet." There was uncontested evidence at trial that the defendant was six feet, two inches tall.
c. Evidence of flight. Prior to trial, the Commonwealth filed a motion in limine seeking approval to introduce evidence that when local Rhode Island police sought to apprehend the defendant on September 12, 2013 (approximately two weeks after the Attleboro robbery), he attempted to flee, leading them on a high-speed chase. In seeking to use such consciousness of guilt evidence, the Commonwealth pointed out that at the time of the defendant's flight, he also was wanted for crimes he allegedly committed on September 6, 2013 (approximately one week after the robbery): an armed robbery while masked in Weymouth and a subsequent carjacking. In opposing the motion in limine, the defendant argued that the intervening crimes provided an equally ready explanation for the defendant's flight and that any probative value from the flight evidence was outweighed by the accompanying prejudice. He also argued that such evidence would put him in the untenable situation of having to choose whether to reveal the intervening charges in order to rebut the force of the flight evidence. At trial, the judge allowed the Commonwealth's motion in limine over the defendant's opposition, and three police witnesses from Rhode Island testified to the high-speed chase on which the defendant led them. The jury heard little explanation for why these officers were focused on the defendant, although one officer testified that he was aware that the defendant had outstanding Massachusetts warrants. The Commonwealth was not allowed to introduce evidence of the other crimes, and the defendant did not do so either.
While the defendant's criminal history is not included in the record before us, it appears from the trial transcript that he had been convicted of carjacking, assault by means of a dangerous weapon on a person over age sixty, and a firearm offense at the time of the trial, but that the Weymouth armed robbery charge was still pending.
2. The defendant's case. The defendant testified in his own defense. He stated that he had been to the grocery store on the evening of the robbery to make a purchase and that he must have lost his phone there at about 8:30 P.M. According to the defendant, he went back to the store the following day, where he was told no one found it. The defendant acknowledged that he remotely wiped his phone's memory between 9 and 10 P.M. on the night of the robbery, stating that he did so because he did not want others to gain access to material on his phone such as photos of his girlfriend. He also acknowledged that he had fled from the police when they attempted to apprehend him and led them on a high-speed chase, saying that he panicked out of fear. He admitted that at the time, he was aware he was wanted in connection with the Attleboro robbery.
3. Phone records. On cross-examination, the prosecutor questioned the defendant about whether he had called his brother's girlfriend, Brianna Miller, at "8:53 five minutes before the robbery." The defendant responded that he did not "recall calling her five minutes before any robbery." Without entering the records in evidence, the prosecutor then showed the defendant documents that purportedly were copies of phone records from Sprint, the defendant's wireless cell phone carrier. In doing so, the prosecutor announced to the jury that the records showed that at 8:53 P.M. , a particular phone number was called from the defendant's phone, which the prosecutor suggested was that of Brianna Miller. The defendant's answers to this line of questioning could be taken to admit that the document he was shown included a listing of a particular number being called from his phone at 8:53 P.M. , and that this phone number was "most likely" that of Brianna Miller. However, the defendant denied calling the friend at that time.
During closing argument, the prosecutor argued that the phone records showed that the defendant had his phone only minutes before the robbery and thus contradicted the defendant's alternative suggestion of how the phone found its way to the customer service booth. Defense counsel raised no objection to the prosecutor's cross-examination or closing argument.
The precise wording of the prosecutor's statement was as follows: "Now, the records we presented I asked him about he called someone, a Miranda [sic ] Miller at approximately 8:53 right before the robbery. How could have [sic ] lost his phone before that. In other words, he still had the phone before the robbery. He said he lost the phone at approximately I believe about 8:30. There is no way he could do this that's credible."
4. The jury's deliberations. After the jury began deliberations, they sent the judge a note stating, "We believe we are missing a piece of evidence. The Sprint phone log referenced by [the prosecutor]. Specifically, for 8/27/13 at 8:53 p.m. that [the prosecutor] had indicated was highlighted ...." With the assent of both counsel, the judge settled on responding to the juror inquiry as follows: "The Sprint phone log was not entered into evidence as an exhibit. You will have to rely upon your memories of the testimony concerning this subject." On their third day of deliberations, and following a Tuey-Rodriquez charge, the jury found the defendant guilty of armed robbery while masked and assault by means of a dangerous weapon on the clerk inside the customer service booth.
In fact, the judge used specific language insisted upon by defense counsel. The following day, while deliberations continued, defense counsel volunteered his view that he had "screwed up" with respect to the response to the jury inquiry. He did not elaborate, and the judge responded, "That's water under the bridge. Let's move on."
See Commonwealth v. Rodriquez, 364 Mass. 87 (1973) ; Commonwealth v. Tuey, 8 Cush. 1 (1851).
The jury found the defendant not guilty of assault by means of a dangerous weapon on a second store employee. A third charge of assault by means of a dangerous weapon was nol prossed.
5. The motion for new trial. While the defendant's direct appeal was pending, he filed a motion for new trial. In that motion, he argued that his trial counsel was ineffective with regard to the handling of the phone records at trial. Specifically, he faulted trial counsel for not objecting to the line of questions about the records or to the prosecutor's closing argument, and for going along with the judge's response to the jury's inquiry. The trial judge denied the motion without a hearing.
Discussion. 1. Sufficiency. The defendant's primary argument on appeal is that, as a matter of law, there was insufficient evidence to prove beyond a reasonable doubt that he was the one who committed the robbery. We view the evidence in the light most favorable to the Commonwealth, drawing all reasonable inferences therefrom, to determine whether the evidence was sufficient to persuade a rational jury to find the essential elements of the crimes charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
Where a defendant is linked to a crime scene only through the discovery there of fingerprints or of a portable item belonging to him, the Commonwealth generally must prove that the defendant left the fingerprints or item at that location during the commission of the crime. See Commonwealth v. Morris, 422 Mass. 254, 256-257 (1996) (insufficient evidence that defendant's fingerprint found on mask recovered at scene of homicide had been left by defendant during commission of crime); Commonwealth v. Renaud, 81 Mass. App. Ct. 261, 263-264 (2012) (insufficient evidence that defendant had dropped his bank card, found at scene of break-in, during commission of crime). However, the Commonwealth can meet its burden by showing that members of the public did not have access to the specific area where the crime occurred and where the personal item (or fingerprint) was left. See Commonwealth v. French, 476 Mass. 1023, 1024 (2017), and cases cited (discussing line of cases where fingerprints or portable object linked to defendant were found in area of limited public access); Commonwealth v. Baptista, 32 Mass. App. Ct. 910, 911 (1992) (jury could "reasonably infer that the defendant was the perpetrator" of breaking and entering and larceny of business where defendant's fingerprint was found on inside vending machine, interior of which "was not available to members of the public").
Because the inside of the customer service booth was an area to which the public did not have access, the discovery of the phone there immediately after the robbery was fairly robust evidence that the robber was the one who dropped it. The defendant points to a potential alternative explanation for how the phone made it to the floor of the customer service booth: namely, that the owner of the phone could have lost it on store premises at an earlier point in time, that someone could have brought the lost phone to the customer service booth, and that the robber could have knocked it onto the floor when he leapt over the wall. We disagree with the Commonwealth's characterization of this alternative explanation as "fanciful." Nevertheless, viewing the Commonwealth's trial evidence as a whole and in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence upon which a rational jury could conclude beyond a reasonable doubt that the defendant indeed was the robber. See Commonwealth v. Ye, 52 Mass. App. Ct. 390, 392-393 (2001) (affirming convictions stemming from home invasion based on fingerprint found on door of rarely used cabinet in basement, coupled with telephone records connecting defendant to prior owner of home).
As noted, the 911 call that was played to the jury revealed that in the immediate aftermath of the robbery, store employees were excited by finding what they perceived to be the robber's phone. While this may not prove definitively that the robber dropped the phone during the robbery, it does undercut the defendant's alternative explanation that the phone already was in the customer service booth when the robbery occurred.
In addition, the jury could consider two different pieces of evidence as demonstrating the defendant's consciousness of guilt: his wiping of the phone's memory within an hour of the robbery, and the high-speed chase on which he led the police two weeks later. Although such consciousness of guilt evidence alone cannot sustain a conviction, it can help sustain a conviction when considered together with other evidence. See Commonwealth v. Toney, 385 Mass. 575, 585 (1982).
As discussed infra, the defendant separately claims such evidence was improperly admitted. For purposes of analyzing the sufficiency of the evidence, whether it was properly admitted is beside the point. See Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010) ("Our consideration ‘is to be measured upon that which was admitted in evidence without regard to the propriety of the admission’ ").
In sum, we conclude that rational jurors could rely on such evidence to find the defendant guilty beyond a reasonable doubt.
To be clear, we note that in concluding that the evidence was sufficient, we are not placing any reliance on the eyewitness testimony regarding the height and build of the robber. While the Commonwealth argues that such evidence strengthens its claim that the defendant was the robber, the defendant contends that such evidence actually undercuts this (since all of the witnesses placed the robber at under six feet tall, and most estimated him to be between five feet, seven inches and five feet, nine inches). In seeking to blunt the force of the height estimates, the Commonwealth highlights that the eyewitnesses saw the robber only for a brief period during which they were under high stress. The Commonwealth also points out that the eyewitnesses themselves all were relatively short (five feet to five feet, three inches tall), and suggests that short people are likely to underestimate the height of someone significantly taller than them. Viewing the evidence, as we must, in the light most favorable to the Commonwealth, we conclude that, overall, the testimony about the robber's height did not significantly strengthen, or weaken, the Commonwealth's case.
2. The flight evidence. The defendant argues that the judge abused her discretion in allowing the evidence that he fled police as evidence of his consciousness of guilt that he committed the robbery. According to the defendant, it is at least equally plausible that he was fleeing because of the intervening masked armed robbery and the related carjacking. Moreover, the defendant argues, as he did below, that admitting the flight evidence unfairly forced the defendant to choose whether to let the evidence of the other crimes be admitted.
While the defendant admitted on the stand that he knew he was wanted in connection with the Attleboro robbery at the time he fled the police, we rely here only on the evidence presented in the Commonwealth's case.
"[W]hether ‘a flight from the police shows consciousness of guilt of the offense on trial when the defendant is charged with another offense is a question of fact for the jury going to the weight of the evidence, rather than a question of law for the judge going to the admissibility of the evidence.’ " Commonwealth v. Burke, 414 Mass. 252, 260 (1993), quoting Commonwealth v. Booker, 386 Mass. 466, 470 (1982). In the circumstances of this case, we discern no abuse of discretion in the judge's decision to allow the jury to consider the evidence of the defendant's flight.
To be sure, the jury were never made aware of the other crimes, which could have affected the extent to which they viewed the flight evidence as showing the defendant's consciousness of guilt with respect to the Attleboro robbery. But it was the defendant who made an informed -- albeit difficult -- choice to keep such evidence out. Faced with the choice between alerting the jury to his alleged involvement in another masked armed robbery in Weymouth and risking that the jury place too much weight on his flight, the defendant made a strategic decision. He had a right to rebut the consciousness of guilt evidence, but chose not to exercise it. See Commonwealth v. Kerrigan, 345 Mass. 508, 513 (1963) (where defendant did not exercise opportunity to explain prior lies to police, jury could consider lies as evidence of consciousness of guilt). We therefore agree with the Commonwealth that where evidence of flight would be admissible as potentially showing consciousness of guilt with respect to one crime, the trial judge's decision to admit the evidence did not constitute an abuse of discretion simply because the defendant successfully kept out evidence that he also was wanted for other crimes.
We do not mean to suggest that defense counsel made the wrong choice in keeping that evidence out. To the contrary, counsel's decision to keep that evidence out plainly was a reasonable strategic choice, and one that was accomplished despite the defendant opening the door to impeachment by stating on the stand, "I don't do robberies."
We note that the defendant was not compelled "to choose between two alternatives, both of which are capable of producing evidence against him." Opinion of the Justices, 412 Mass. 1201, 1211 (1992) (pending bill that would allow defendants' refusal to take breathalyzer test to be used as evidence in subsequent criminal proceedings places defendants in " ‘Catch-22’ situation").
We note that in Burke, the Supreme Judicial Court concluded that trial counsel was not ineffective for failing to try to keep out evidence of flight as consciousness of guilt, without attention to whether evidence of another crime that might have spurred the flight would have been admitted. 414 Mass. at 261 n.10.
3. Use of defendant's phone records. In assessing whether defense counsel was constitutionally ineffective with regard to the phone records, we must first determine "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If so, we then look to "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Id. "A defendant seeking a new trial based on a claim of ineffective assistance of counsel bears the burden of establishing both prongs of the Saferian test." Commonwealth v. Sullivan, 469 Mass. 621, 629 (2014). We are deferential to defense counsel's strategic decisions at trial, and adhere to a "strong presumption that counsel knows best how to defend a client." Commonwealth v. Glover, 459 Mass. 836, 843 (2011). See Commonwealth v. Florentino, 396 Mass. 689, 690 (1986).
As was evident from an exhibit that was entered in evidence, a "subpoena specialist" from Sprint, the defendant's cell phone carrier, provided police a copy of the relevant phone records in September of 2013. Although the record before us does not indicate when the Commonwealth turned over the phone records in discovery, the docket reveals that those records were filed in court as business records on May 21, 2015 (seven months prior to the eventual trial). See G. L. c. 233, § 79J. Therefore, from all indications, the defendant was aware not only of the existence of the phone records but also of the Commonwealth's ability to have them admitted as business records.
The prosecutor thus had a solid good faith basis to seek to impeach the defendant with regard to the records. See Commonwealth v. Christian, 430 Mass. 552, 561 (2000). Accordingly, defense counsel cannot be faulted for failing to object to this line of questioning. See Commonwealth v. Walker, 460 Mass. 590, 609 (2011) (no ineffective assistance for failure to object where "the judge would have overruled defense counsel's objections ... and was within [her] discretion in doing so"). Indeed, such an objection could have backfired by spurring the prosecutor to have the records admitted.
This is not to say that the specific form of the prosecutor's questioning, which was far from ideal, was unobjectionable.
Counsel's failure to object to the prosecutor's reference to the phone records in his closing presents a somewhat closer question. The prosecutor in effect was seeking to convince the jury to rely on the phone records for their truth even though the records had not been admitted. In addition, we disagree with the Commonwealth's claim that through his answers, the defendant "essentially authenticated" the phone records. However, even if we agreed that the defendant satisfied prong one of Saferian with regard to his counsel's failure to object, we still would conclude that the defendant has failed to satisfy prong two. That is because the jury themselves questioned whether the phone records had been admitted, and the judge's response to their inquiry made it clear that the records had not been admitted. In addition, the jury were instructed that neither an attorney's questions posed to a witness, nor statements made to the jury, constitute evidence on which jurors may rely. We presume the jury followed these instructions. See Commonwealth v. Degro, 432 Mass. 319, 328 (2000).
The defendant has not shown that there was anything improper about the judge's response to the jury inquiry, and therefore, his trial counsel cannot be faulted for endorsing it.
4. Refreshed recollection. Finally, the defendant argues that the judge improperly allowed the prosecutor to refresh the recollection of one witness with regard to how tall she believed the robber to be. That witness initially testified that she believed the robber was five feet, nine inches tall. Knowing that the witness earlier had told police that she believed the robber was five feet, eleven inches tall, the prosecutor solicited from the witness that she remembered having given the police a statement in which she mentioned the robber's height, but that she could not recall what she had said. When the prosecutor signaled that he intended to show the witness her statement to the police in order to try to refresh her recollection, the defendant objected. After the judge overruled the objection, the witness read her earlier statement and testified that it refreshed her recollection that the robber's height was five feet, eleven inches tall. The defendant argues that the judge erred in allowing the witness to be shown her earlier statement after she had testified how tall she believed the robber was without equivocation or claimed absence of memory.
We need not dwell on this point, because even if the judge erred in allowing the prosecutor to show the witness her earlier statement to the police, we agree with the Commonwealth that this did not amount to prejudicial error warranting a new trial. As we have noted, the extensive eyewitness testimony about the robber's estimated height varied considerably, and all such estimates (including this particular witness's corrected estimate of five feet, eleven inches tall) placed the robber's height under the defendant's actual height. We are confident that the witness's modifying her answer by two inches "did not influence the jury, or had but very slight effect" (citation omitted). Commonwealth v. Rosario, 430 Mass. 505, 514 (1999).
Judgments affirmed.
Order denying motion for new trial affirmed.