Commonwealth v. Espinal

91 Mass.App.Ct. 1120

86 N.E.3d 245 (Table)

COMMONWEALTH

v.Adonys ESPINAL.

11-P-1481

Appeals Court of Massachusetts.

Entered: May 5, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Three men, two of them masked with bandanas, broke into a hotel room intending to rob its occupants of drugs and money. One of the intruders was armed with a .22 caliber handgun, and one was carrying a replica firearm. When fighting broke out between the occupants of the room and the intruders, one of the occupants was fatally shot.

The Commonwealth proceeded under the theory that the defendant, Adonys Espinal, masterminded the crime, carried the .22 caliber handgun, and fired the fatal shot. Unconvinced, the jury acquitted him of all charges but one: armed home invasion as a joint venturer.² The defendant appeals from the judgment and from the denial of his motion for a new trial. We affirm.

Discussion. Joint venture. Conceding that the evidence would have been sufficient to convict him as a principal, the defendant claims that the evidence was insufficient to prove that he participated in the hotel room invasion solely as a joint venturer. He reasons that because the jury must have disbelieved the evidence that the defendant himself was armed and fired the fatal shot, the conviction cannot be sustained without proof that someone other than the defendant was armed when the men entered the hotel room.

In the case of a defendant's conviction of a crime as a joint venturer, we "examine whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).³ When a defendant is charged as a joint venturer in a crime that includes possession of a weapon as an element, the Commonwealth must also show that the defendant "either was armed himself or knew that an accomplice was armed." Commonwealth v. Tejeda, 473 Mass. 269, 271 (2015). See Commonwealth v. Benitez, 464 Mass. 686, 689 n.4 (2013) ("It also was necessary for the Commonwealth to prove that the defendant was armed with a dangerous weapon or had knowledge that [an accomplice] was so armed"). We do not accept the premise of the defendant's argument: that he cannot be convicted as a joint venturer when the evidence strongly suggests that he was the principal perpetrator. See Commonwealth v. Netto, 438 Mass. 686, 700-701 (2003). "To meet the elements of joint venture the Commonwealth ‘need not prove that someone other than the defendant was the actual perpetrator.’ " Zanetti, supra at 460, quoting from Netto, supra at 701.

The evidence was sufficient to show that the defendant knowingly participated in an armed home invasion with the requisite intent. "[T]he evidence in this case was sufficient to demonstrate that several men, at least one of whom was armed, were involved in the underlying home invasion during which the killing occurred, and that the defendant was a participant in that home invasion." Taylor v. Commonwealth, 447 Mass. 49, 54 (2006). Even if the jury rejected evidence that the defendant fired the fatal shot, or even possessed a firearm, "they still could have credited ... testimony to the effect that the defendant was a member of the group that committed the home invasion itself." Ibid.

To the extent that the jury, following the judge's instructions, could not find the defendant guilty as a joint venturer unless the Commonwealth proved that "another" intended to commit the crime and that the defendant knew "the other" possessed a weapon, we conclude that the evidence was sufficient as well. In Zanetti, supra at 456, the court found that if the defendant himself did not possess the gun that fired the fatal shot, he could not be convicted as a joint venturer because there was no evidence that he knew that his companion was armed or that he shared his companion's intent to use the gun.⁴ Here, by contrast, even if the jury believed that the defendant was not armed himself, there was evidence from which they could find that he knew one or two of his companions were.

The evidence showed that three men—the defendant, Michael Appleton, and John Lendall—planned an armed robbery of the victim's hotel room. They rented the room across the hall and took a .22 caliber handgun, ammunition, and personal items into the room. They agreed that Lendall should get "another gun" from his house, a replica that "look[ed] like a real gun," with a clip, slide, and regular chamber, but was "a lot more intimidating." The victim was shot with a .22 caliber projectile. "Jurors, of course, are free to believe or disbelieve the testimony of each witness in whole or in part," Zanetti, supra at 457, so long as they do not "distort or mutilate any integral portion of the testimony to permit them to believe an unfounded hypothesis." Id. at 458, quoting from Commonwealth v. Perez, 390 Mass. 308, 314 (1983). Here, if the jury did not believe that the defendant carried the .22 caliber handgun into the victim's hotel room, they could rationally conclude that one of the others did.

manIndeed, the jury could have found the defendant guilty of armed home invasion as a joint venturer solely on the basis of Lendall's replica gun. "[A] replica or fake weapon is a dangerous weapon if the victim would, in all the surrounding circumstances, reasonably believe that the object was a real weapon." Commonwealth v. Powell, 433 Mass. 399, 402 (2001). See id. at 401 ("The standard definition of ‘dangerous weapon’ ... also includes items that are used or displayed in a way such that they reasonably appear capable of causing serious injury or death"). Here, with respect to armed home invasion, the judge instructed that "[a] dangerous weapon is any instrument that by nature of its construction or the manner of its use is capable of causing grievous bodily injury or death or would be perceived by a reasonable person as capable of such injury" (emphasis supplied).⁵ The jury would have been warranted in finding that Lendall's replica gun satisfied the definition of "dangerous weapon."

As we conclude that the evidence was sufficient to prove the defendant's guilt as a joint venturer, we reject the defendant's claim that the evidence did not warrant an instruction on joint venture liability.

Reconstruction of jury instructions. During the final charge, the stenographer's equipment malfunctioned. Although the judge learned of the problem soon enough to give counsel an opportunity to repeat their objections for the record, much of the charge itself had to be reconstructed afterwards. "[T]he fact that the transcript is unavailable through no fault of the parties does not warrant a new trial unless the trial proceedings cannot be reconstructed sufficiently to present the defendant's claims." Commonwealth v. Harris, 376 Mass. 74, 78 (1978). In this case, the record was easily reconstructed because the judge had provided the jury with an outline of the elements of the crimes and of joint venture liability, as well as a "copy of the instructions which were read verbatim to the jury." A judge may properly reconstruct a record based on her recollection of her customary practices. Compare Commonwealth v. Quinones, 414 Mass. 423, 432 (1993) ; Commonwealth v. Rzepphiewski, 431 Mass. 48, 54 (2000) ; Commonwealth v. Haskell, 76 Mass. App. Ct. 284, 290 (2010). Reconstruction based on the written copy of the instructions actually provided to the jury is a far more reliable method. We also reject the defendant's claims, raised for the first time on appeal, that the judge erred by failing to repeat the words "beyond a reasonable doubt" and "dangerous" in the joint venture instructions and by not referring to acquittal, burden of proof, or reasonable doubt in the outline of the charges. The reconstructed instructions on "home invasion with a dangerous weapon" (emphasis supplied) repeatedly used the word "dangerous" and defined "dangerous weapon." The judge gave complete, comprehensive instructions on the presumption of innocence and proof beyond a reasonable doubt (this part of the charge was transcribed and did not need to be reconstructed), and the reconstructed instructions repeatedly informed the jury that they were required to find the defendant "not guilty" if the Commonwealth failed to prove any element of any of the crimes. For example, the armed home invasion instruction ended with the sentence, "If, however, after your consideration of all the evidence you find that the Commonwealth has not proved any one of the four (4) elements beyond a reasonable doubt, you must find the defendant not guilty." The fact that the jury acquitted the defendant of every charge but one conclusively demonstrates that they received, understood, and followed these instructions. "Viewed as a whole, ‘we conclude that the instruction[s] correctly conveyed to the jury the level of proof required to convict the defendant.’ " Commonwealth v. Byers, 62 Mass. App. Ct. 148, 152 (2004), quoting from Commonwealth v. Gagliardi, 418 Mass. 562, 572 (1994), cert. denied, 513 U.S. 1091 (1995).

Identification issues. The defendant argues that the judge's failure to give any instructions on identification entitles him to a new trial. He also argues that certain witnesses were improperly permitted to identify him in court.

The defendant filed a request for instructions with respect to identification, including an instruction on honest but mistaken identification. See Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983). At the charge conference, defense counsel requested that the judge "give either my instruction or at least the model instruction on identification." The judge indicated that she would give the model instruction, including a Pressley inst...