Commonwealth v. Chin

97 Mass.App.Ct. 188

144 N.E.3d 923

COMMONWEALTH

v.Chhoeut CHIN.

No. 17-P-895

Appeals Court of Massachusetts, Suffolk..

Argued March 5, 2019

Decided March 23, 2020

Elizabeth A. Billowitz, Boston, for the defendant.

Janis DiLoreto Smith, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, also present) for the Commonwealth.

Present: Hanlon, Agnes, & Sullivan, JJ.

HANLON, J.

After a jury trial in the Superior Court, the defendant, Chhoeut Chin, was convicted of murder in the second degree. He appeals, arguing that there was insufficient evidence to sustain his conviction, that the identification procedure was unnecessarily suggestive, that prior bad acts evidence was admitted in error, and that video surveillance footage was admitted in evidence without proper authentication. We affirm.

Background. The jury heard the following evidence. On August 1, 2013, between approximately 7:30 A.M. and 8:30 A.M. , a maintenance crew was cleaning the parking area at Shore Plaza, a housing complex located at 400, 500, 600, and 800 Border Street in the East Boston section of Boston. After cleaning up in the parking area of 800 Border Street, Noe Santos, a member of the maintenance crew, went inside to wash the windows at that building. As he was doing that, Santos could see the entire parking lot area under 800 Border Street, and he noticed something lying on the ground next to a dumpster; he had not seen anything when he was there earlier. Santos went out to look and saw that it was a person and, thinking the individual was either drunk or passed out, he went to find his supervisor, Carl Abruzese, the maintenance director at Shore Plaza. The two returned and discovered a woman's body. She was not breathing. Abruzese telephoned 911.

Boston Police Homicide Detective Michael Walsh was among the responding police officers, and he observed that the victim was barefoot and there appeared to be no belongings or identification with the body. Three doctors from the medical examiner's office also responded, and Walsh watched them conduct a preliminary examination. There was blood coming from the victim's mouth and there were marks on her neck; however, there were no "scrapes or cuts, lacerations, or any type of drag marks."

Walsh and Boston Police Sergeant Detective Joseph Dahlbeck then obtained surveillance video recordings from the Shore Plaza management office. Walsh testified that the camera located at 800 Border Street -- where the victim's body was discovered -- showed a blue car entering the parking area from Border Street around 9 A.M. , and leaving at 9:14 A.M. , heading toward Route 1A in the direction of Lynn. The blue car had a black hood, a visor over the rear windshield, a tachometer in the front of the dashboard, "star rims," and a gray marking near the rear wheel well.¹

Dr. Anna McDonald, a forensic pathologist, testified that she conducted an autopsy of the victim on August 2, 2013.² Dr. McDonald was a forensic pathology fellow employed by the chief medical examiner in Boston. Among other things, she observed petechial hemorrhages in both of the victim's eyes as well as her mouth, "signifying ... rupturing of those small capillaries [in and around the eyes] due to pressure on the neck." She also observed abrasions on both sides of the victim's neck, "indicating some force being applied to the neck"; there was "hemorrhage into the deep muscles that are on either side of the spine as well that extended the portion of the neck"; and there was a "fracture of the back of the fifth cervical vertebrae ... kind of down towards the bottom of [her] neck .... And ... there was blood around that as well." Dr. McDonald concluded, "It essentially correlates to a decent amount of pressure that had to be applied to fracture the back of your neck." The toxicology report indicated that the victim also "had some morphine in her blood."³ From all of her observations, Dr. McDonald concluded, to a reasonable medical certainty, that the cause of death was "compression of the neck, and then the manner of death in this case is homicide." Fingerprints were taken during the autopsy, and the victim was identified as Sherry Bradley.

After learning of the victim's murder, Christopher Schmitt, the victim's friend and an intermittent roommate, contacted Michael Bradley, the victim's father. Schmitt showed Bradley several text messages that the defendant had sent to Schmitt's cell phone -- most of them were directed at least indirectly at the victim. For example, the messages included the following: "SHE WILL GET OD N DIE TONIGHT"; "She a fucking low life prostitute she don't deserve nothing at all"; "She gonna n will die slow with OD TONIGHT!!!!!"; and "So y you fucking bitch don't answer when I called u?" Other text messages showed the defendant was desperate for drugs, and some expressed an apology for his behavior. The last text on July 27, 2013, requested that the victim meet the defendant at the Lynn Common.

On August 4, 2013, Schmitt met with Walsh and Boston Police Detective Vance Mills. Mills testified that Schmitt described people whom the victim had been seeing. In particular, he spoke about a man, whom he knew as "Ricky" or "T." Schmitt described Ricky as an Asian, possibly Cambodian, man, about five feet, six inches or five feet, seven inches tall, who drove a "souped up" blue Honda, and lived at 11 Williams Avenue in Lynn. Schmitt also provided two possible license plate numbers for the Honda. Mills testified that, on August 4, 2013, after Schmitt told the police about the victim's relationship with Ricky, Mills showed him a photograph of a man; Schmitt identified the man in the photograph as Ricky or T. However, the detectives subsequently ruled out the man in the photograph as a suspect, as they could not connect him to any vehicle.

Walsh and Mills then went to 11 Williams Avenue in Lynn, and spoke with the first-floor tenant, Roberto Rivera. At trial, Rivera identified the defendant as the man who had lived on the third floor of the building and who had driven a blue Honda Civic "kind of customized, like very sporty ... [with a] black hood." He also identified the victim from a photograph as a woman whom he had seen with the defendant, "[p]robably about three times."

On August 5, 2013, after a conversation with a member of the Lynn Police Department, Walsh and Mills went to 82 West Neptune Road in Lynn.⁴ When they arrived, they observed a blue Honda Civic parked in the driveway; the vehicle was registered to the defendant at 11 Williams Avenue and matched the car in the surveillance video recordings from 800 Border Street. The detectives spoke with the defendant and, after they introduced themselves, they showed him a photograph of the victim; the defendant denied knowing her or anyone by the victim's name. The defendant claimed that "the only white girl he knew was ... up here for a couple of weeks named Melissa, and she went back to Orlando." He also informed the detectives that he lived at 11 Williams Avenue and gave the officers a cell phone number. The detectives then arranged to have the defendant's car towed to Boston Police headquarters.

On August 6, 2013, given this information, Mills showed Schmitt a photograph of the defendant, and Schmitt stated "emphatically" that the photograph showed the person he knew as Ricky "one hundred percent." Mills explained at the hearing on the motion to suppress that Schmitt was only shown one photograph at that time, as opposed to an array, because Schmitt was not a percipient witness to the crime but, rather, had preexisting knowledge of the man he knew as Ricky.

The jury heard other testimony connecting the victim and the defendant and connecting the defendant to the blue Honda. Bradley, the victim's father, testified that he and his wife had taken custody of the victim's children after she began using pain medication for a back injury. On one occasion in the spring of 2013, the victim came to his house to pick up some clothes, and she arrived in a car driven by the defendant, who remained outside. Bradley described the car as a "little low blue car with a black hood and spoiler thing, fins on the back." In June, the victim again arrived at Bradley's house with the defendant in "a blue Honda with the black hood and the spoiler on the back." She also brought the defendant to a Fourth of July party at Bradley's house; at the time, she introduced the defendant to her father as T. The last time that Bradley saw the victim, approximately a week before she died on August 1, 2013, he gave her money for food.

Johnnie Phillips had been acquainted with the victim for roughly one and one-half years; she stayed intermittently in his apartment and used his cell phone. Phillips testified that, in early July of 2013, he saw a man whom he knew as Ricky arguing with the victim.⁵ Phillips described the man as Cambodian or Vietnamese and testified that "in that argument [the man] kicked her. He kicked her in the stomach.... He wanted her to come out. He wanted her to come back outside.... [H]e kicked her pretty hard, and then he bolted, because I started to come after him ...."

Phillips also testified that, "when [the victim] came over, [Ricky] kept on calling on my number, trying to get in contact with [the victim]." During July 2013, Ricky also called and texted Phillips repeatedly looking for the victim -- "hundreds of times," according to Phillips. After the victim would leave Phillips's apartment, Ricky would come by repeatedly to ask when she would be back and where she was. On or about July 21, 2013, Ricky told Phillips that he was mad at the victim because she "had ripped off him and his cousin." Phillips testified that Ricky told him that the cousin was from East Boston and Phillips understood that Ricky was referring to either drugs or money.

The last time Phillips saw the victim alive, she was with Schmitt. She gave Phillips some heroin, and he gave clothes she had left with him to...