Opinion
19-P-697
07-10-2020
COMMONWEALTH v. CEDRIC WONGUS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant was charged with three counts: rape, in violation of G. L. c. 265, § 22; breaking and entering at night, in violation of G. L. c. 266, § 16; and larceny over $250, in violation of G. L. c. 266, § 30. After a seven-day jury trial, the defendant was convicted of indecent assault and battery on a person over fourteen years of age, as a lesser included offense of rape, and larceny. There was no eyewitness identification of the perpetrator. The most critical evidence linking the defendant to the crimes was a cigarette butt containing the defendant's DNA, which was found in the victim's apartment. On appeal, the defendant challenges the convictions, arguing (1) that the cigarette butt was not properly authenticated, (2) that the jury's apparent consideration of facts not in evidence warranted a mistrial, (3) that the evidence was not sufficient to establish that he committed the crimes, and (4) that the larceny conviction and breaking and entering acquittal were inconsistent. We affirm.
Background. 1. The crimes. In December of 2016, the victim was living in the second-floor apartment of 126 Franklin Street, a two-story residential building, in Lynn, with her partner, Teddy Amissi. The first-floor apartment was home to the victim's good friend, Kelsea Mendoza, and to Mendoza's boyfriend, James Puryear. The front and back entrances to the building, shared by both apartments, often were left unlocked.
We recite the facts from the evidence adduced at trial, viewed in the light most favorable to the Commonwealth.
The victim and Mendoza spent the evening of December 24 together in the second-floor apartment. Amissi was out of town. The two women exchanged gifts. Mendoza gave the victim a Fitbit watch and a Keurig coffee maker, the latter of which the victim described as "teal," while Mendoza described it as "mint green."
Meanwhile, at approximately "ten-ish, eleven" that night, Puryear walked from 126 Franklin Street to a local bar with two friends. There they encountered the defendant, with whom Puryear was friendly. The defendant was wearing a red hat. Soon afterwards, the defendant drove the three men back to 126 Franklin Street. After entering, Puryear walked up to the second floor. The other men followed; Puryear told them to go back downstairs. After a short time, Puryear returned downstairs with Mendoza; they did not close the apartment door behind them. Mendoza left her purse, which contained her military identification card (ID), on the second floor. The other three men, including the defendant, departed.
The victim woke suddenly, sometime between 4:30 A.M and 5 A.M., to find her pants down and a stranger performing oral sex on her. Although the room was "kind of dark," a light in a nearby parking lot provided some illumination through a window, enough for the victim to see that the stranger was wearing a red hat and red shirt. The victim asked, "Who are you?" and the stranger "got up and left." At 7 A.M that day (Christmas morning) the victim and Mendoza went to a Lynn police station and reported the assault. The victim reported that the perpetrator wore a red shirt, red pants, and red shoes.
The victim and Mendoza returned to 126 Franklin Street, where Mendoza noticed that the Keurig and Fitbit she had given the victim, as well as her ID, were missing. Later on Christmas day, after returning from a family engagement, both the victim and Mendoza noticed a cigarette butt in the hallway of the second-floor apartment. Its presence stood out, as none of the building's residents smoked. The victim and Mendoza again went to the police station, where they reported the missing items and asked whether the police would collect the cigarette butt for investigative purposes. An officer responded that "there was nothing they could do with [it]." Consequently, when the victim got home she put the cigarette butt in a trash can, lined with a bag. Soon afterwards she brought the trash can outside and deposited its contents in the trash barrel assigned to the second-floor apartment.
Later that same day, Mendoza received several Facebook messages from an account with an unfamiliar name -- Gabrielle Ziol. The messages included pictures of Mendoza's ID.
2. The investigation. Two days later, on December 27, a police detective called the victim back to the police station, and then directed her to retrieve the cigarette butt and bring it to him. To that end, he gave the victim gloves and an evidence envelope. Back at 126 Franklin Street, the victim and Mendoza searched the uppermost bag in the second-floor apartment's trash barrel. The bag contained wrapping paper from Christmas gifts and only one cigarette butt. That evening, the victim delivered the cigarette butt to the detective at the station, in the evidence envelope. Subsequent analysis at the State crime laboratory identified the defendant's DNA on the cigarette butt.
The detective testified that this was not "standard protocol," and that he made a "bad decision" due to demands on his time and resource constraints.
On January 17, 2017, the police arrested the defendant at the apartment of his wife -- Gabrielle Ziol. The defendant was wearing a red and black baseball hat and red sneakers. In the apartment the police found a "seafoam green" Keurig and some red articles of men's clothing.
3. Trial. Prior to the start of trial, the Commonwealth filed a motion in limine to admit the cigarette butt, as well as testimony about how the cigarette butt was collected, and testimony about the DNA analysis performed on the cigarette butt. The judge allowed the motion.
During the Commonwealth's opening argument, the prosecutor told the jury that Ziol was expected to take the stand and to testify, in particular, that on Christmas morning, she found the defendant unconscious in her car together with some beers, a green Keurig machine, and a Fitbit, and with the military ID of "Kelsea Mendoza" in his pocket.
The prosecutor also stated that Ziol would testify that on Christmas Eve, the defendant was wearing a red hat, red vest, and red shoes, and borrowed Ziol's car; and that, after finding the military ID the next morning, she messaged "Kelsea Mendoza."
On the fourth day of trial, however, Ziol unexpectedly informed the judge that she was invoking her spousal privilege not to testify. The Commonwealth subsequently put into evidence the marriage certificate of Ziol and the defendant. Later, after closing arguments, the judge remained mindful of the Commonwealth's opening statements regarding Ziol's anticipated testimony, and tailored the jury instructions accordingly. First the judge repeated the instruction given at the start of trial -- that opening arguments are not evidence. Then the judge further instructed: "[Y]ou must totally disregard whatever [the prosecutor] stated in his opening about [Ziol's] anticipated testimony. You should not speculate about what she might have said if she had testified, why she did not testify or anything of the sort."
During deliberations, the jury asked the judge whether "the accused should have known that the victim was unable to give consent by unconsciousness or intoxication" where "the accused is intoxicated at the time of the act." A lengthy colloquy between the judge and counsel followed. All agreed that the jury had not heard competent evidence of the defendant's intoxication. The defendant moved for a mistrial, which the judge denied. The judge then reinstructed the jury that only witness testimony and admitted exhibits constitute evidence.
The jury convicted the defendant of indecent assault and battery and larceny over $250, and acquitted the defendant of breaking and entering. The defendant appeals.
Discussion. 1. Authentication of the cigarette butt. First, the defendant challenges the admission of the cigarette butt and the related testimonial evidence. The gist of the argument is that the DNA evidence should not have been admitted, because the cigarette butt on which the DNA was found was not properly authenticated. In particular, the defendant contends that the Commonwealth failed to prove that the cigarette butt the victim took from the trash barrel on December 27, and delivered to the police that day, was the same cigarette butt she had found on her apartment floor the day of the crime. The defense posits that the cigarette butt the victim found in the trash on December 27 could have been smoked by the defendant while he was briefly at 126 Franklin Street on Christmas Eve, and that cigarette butt could later have ended up in the trash barrel, even though the defendant had never entered the victim's apartment. We perceive no error.
"The requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Commonwealth v. Purdy, 459 Mass. 442, 447 (2011), quoting Mass. G. Evid. § 901(a) (2011). The trial judge, acting as gatekeeper, determines whether the jury could so find by a preponderance of the evidence. Commonwealth v. Meola, 95 Mass. App. Ct. 303, 308 (2019).
While the circumstances here may be unusual, there was sufficient evidence to authenticate the cigarette butt. Testimony from multiple witnesses established "circumstances . . . which imply" that the proffered evidence was what the Commonwealth represented it to be (quotation omitted). Commonwealth v. Nardi, 452 Mass. 379, 396 (2008). Such circumstances include the following: (1) that the cigarette butt on the victim's apartment floor did not come from any of the residents of 126 Franklin Street, as none of them smoked; (2) that on December 25, the victim deposited the cigarette butt into a bag in the outdoor trash barrel used only for the second-floor apartment; (3) that on December 27, the victim and Mendoza searched the most recently deposited bag in that barrel, which contained trash from the evening of December 24 and December 25; and, (4) that, contrary to the defendant's claim, there was only one cigarette butt in that bag. Of course, the manner in which the cigarette butt was collected was not ideal, as the Commonwealth acknowledged and the judge stated. But there were still sufficient "confirming circumstances" to establish the cigarette butt's authenticity (quotation omitted), Purdy, 459 Mass. at 449, and no error in its admision. See id. While the defendant's contrary theory is conceivable, it is an argument for the jury to evaluate, after hearing all the evidence.
On direct examination, the victim was asked, "[W]as that the only cigarette butt that was in that particular trash bag?" She answered, "Yes." Mendoza was later asked the same question, and gave the same answer.
In addition, the defendant claims that the cigarette butt was inadmissible because its chain of custody was defective. In particular, he asserts that the cigarette butt could have been "changed" or "contaminated" while it sat in the trash, or while it was handled by the victim on December 27. While acknowledging that "[a]lleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility," Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230-231 (1992), the defendant argues that this case qualifies for an exception to the usual rule. To do so, however, he relies on out-of-State case law, which is not binding. Here we see no reason to depart from the usual Massachusetts law applied to chain of custody issues. See Commonwealth v. Penta, 423 Mass. 546, 556 (1996) (evidence regarding chain of custody admissible where it "was the subject of testimony and vigorous cross-examination").
2. The prosecutor's opening statement. The defendant next argues that the judge should have granted a mistrial, given the prosecutor's statements in opening, and the fact that the defendant's wife did not testify. He asserts, reasonably, that the question the jury posed to the judge during deliberations demonstrated that the jurors were considering Ziol's anticipated testimony, even though those facts were not in evidence. The judge's subsequent instructions did not cure the error, the defendant contends, because the jury had been considering the prosecutor's opening statements despite previous instructions not to.
We review the denial of a mistrial under the abuse of discretion standard. Commonwealth v. Durand, 475 Mass. 657, 668 (2016), cert. denied, 138 S. Ct. 259 (2017). "When a jury have been exposed to inadmissible evidence, the judge may rely on a curative instruction to 'correct any error and to remedy any prejudice'" (quotation omitted). Id. "Generally, as long as the judge's instructions are prompt and the jury do not hear the inadmissible evidence again, a mistrial is unnecessary." Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997).
Although the jury's question raises a serious concern, we conclude that, in light of all the circumstances, a mistrial was not required. The judge instructed: "[Y]ou must confine yourselves to consideration of the evidence that was presented; that is, the testimony of the witnesses and the admitted exhibits." See Durand, 475 Mass. at 669 (affirming denial of mistrial where prompt curative instructions given). The jury, of course, is "presumed to have followed the judge's instructions." Id.
More importantly, we are not persuaded that the statements here were so prejudicial that a mistrial was required. Much of Ziol's anticipated testimony came into evidence in other ways. For example, Mendoza testified to receiving the Facebook message, from the user "Gabrielle Ziol," which contained the photograph of Mendoza's ID; the marriage certificate established that Ziol was the defendant's wife. And a police officer testified that a green Keurig and a Fitbit were found in Ziol's apartment when the defendant was arrested. In short, the most damaging of Ziol's anticipated testimony came before the jury in any event. See Durand, 475 Mass. at 669 ("abundant admissible evidence" of guilt). Compare Commonwealth v. Bearse, 358 Mass. 481, 487 (1970) (preview of testimony that never materialized went to "core" of Commonwealth's case).
3. Sufficiency of the evidence. The defendant also challenges the denial of his motion for a required finding of not guilty. He contends that the evidence was not sufficient to establish his presence in the victim's apartment when the crimes occurred, and thus, his identity as the perpetrator. We disagree.
We view the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). Under Latimore, "inferences need not be necessary, only reasonable and possible." Corson v. Commonwealth, 428 Mass. 193, 197 (1998).
To begin, the jury could reasonably have inferred from the DNA on the cigarette butt that the defendant was present in the victim's apartment not long before the cigarette was noticed on December 25. There was no evidence that the defendant had been in the apartment prior to the morning of December 25, and Mendoza and the victim noticed the cigarette butt because none of the residents of 126 Franklin Street smoked. This DNA evidence alone was powerful evidence that the defendant was the unknown perpetrator of the assault, but here there was considerably more.
First, the jury could have tied the defendant to the crimes through the evidence regarding his clothing. The victim testified that she saw the perpetrator wearing a red hat, and she reported to the police on the morning of December 25 that the perpetrator was wearing red clothing and red shoes. Puryear testified that the defendant wore a red hat the night of December 24. Furthermore, the defendant was wearing a red and black hat and red shoes at the time of his arrest, and red men's clothing was found at Ziol's home. See Commonwealth v. White, 422 Mass. 487, 495 (1996) (evidence sufficient where defendant arrested with black jacket assailant had worn).
Second, the evidence linked the defendant to the stolen items. Three items taken from the apartment that night -- Mendoza's ID, the green Keurig, and the Fitbit -- were either located at the home of the defendant's wife, or linked to the defendant through the Facebook message. In addition, the jury could reasonably have inferred that when the defendant was at 126 Franklin Street on Christmas Eve, he saw that the building's doors were left unlocked, and perhaps that Puryear and Mendoza did not close the upstairs apartment door when they came downstairs.
Taken together, all of the evidence "formed a mosaic . . . such that the jury could conclude . . . that the defendant was the [perpetrator]" (quotation omitted), Commonwealth v. Ayala, 481 Mass. 46, 53 (2018), despite the victim's inability to identify the defendant in a photographic array.
4. Larceny conviction. Finally, the defendant challenges his larceny conviction as inconsistent with his acquittal on the breaking and entering charge. This challenge is brought pursuant to Commonwealth v. Moffet, 383 Mass 201, 208 (1981). In a criminal case courts will not overturn verdicts on the ground that they are factually inconsistent. Commonwealth v. Fluellen, 456 Mass. 517, 523 (2010). Moreover, here the two verdicts are not inconsistent in any event. The jury could have found that while the defendant's actions satisfied all the elements of larceny, they did not satisfy the specific intent element of breaking and entering. That is, the jury could have found that the evidence did not establish that when the defendant entered the victim's building, his intent was to commit a felony therein. See Commonwealth v. Cabrera, 449 Mass. 825, 827 (2007) (elements of breaking and entering); Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 27 (2003) (elements of larceny by stealing).
Judgments affirmed.
By the Court (Milkey, Shin & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 10, 2020.