Commonwealth v. Figueroa

98 Mass.App.Ct. 1116

157 N.E.3d 107 (Table)

COMMONWEALTH

v.Luz FIGUEROA.

19-P-1592

Appeals Court of Massachusetts.

Entered: October 29, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Luz Figueroa, was convicted of breaking and entering a building during the daytime with intent to commit a felony, G. L. c. 266, § 18 ; larceny over $250, G. L. c. 266, § 30 ; and defacement of property, G. L. c. 266, § 126A. The defendant subsequently filed a motion for a new trial that was denied. We consolidated the appeals from her convictions and from the denial of her motion for a new trial. In her appeal, the defendant contends that (1) there was insufficient evidence that she had the requisite intent to aid and abet,² (2) accusatory statements by the police and the victim were hearsay and created a substantial risk of a miscarriage of justice, and (3) the trial judge improperly denied her motion for a new trial on the grounds of ineffective assistance of counsel because her statements to the police were involuntary or coerced. We affirm.

Discussion. 1. Sufficiency of the evidence. "We review the denial of a motion for a required finding of not guilty to determine ‘whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged.’ " Commonwealth v. Barry, 481 Mass. 388, 397-398 (2019), quoting Commonwealth v. Whitaker, 460 Mass. 409, 416 (2011).

The evidence, viewed in the light most favorable to the Commonwealth, established the following. On July 4, 2016, at around 11 A.M. , Stephen Molino left his apartment in Stoughton and locked the deadbolt to his door. Around noon, Molino called his friend Luz Figueroa, who lived in the apartment upstairs, to let her know that he would be back in about an hour. By the time he returned to his apartment an hour later, Molino's deadbolt was jammed with a key blank and $23,000 hidden behind a nightstand in his bedroom had been stolen. The money was in a black bag, which the perpetrator had left behind. The nightstand and a bureau had been moved and returned to their original position, but nothing else within the apartment had been disturbed and nothing except the money was missing.

Immediately after Molino discovered the theft, he went to Figueroa's apartment, calling the police on the way. Figueroa made a series of inconsistent statements that indicated consciousness of guilt. Figueroa told Molino and the police that she had seen two black men in a blue car. She then went to her apartment where she was questioned further. She said that she saw a black man and a white man in a car of unknown color, before stating again that it was two black men. The day after the theft, July 5, 2018, Figueroa went to the Stoughton police station to give elimination fingerprints. She met with Stoughton Police Officer Robert Kuhn, who interviewed her for over an hour about the theft, and who made it clear that she was a suspect. During the course of the interview, she told the police that she was uninvolved, this time stating that there were two black men and one white man outside the apartment. She told the police that she never told "anyone else about the money in the home."

The next day, in a series of text message conversations, Figueroa admitted to Molino that her uncle had stolen Molino's money. She wrote: "I told him were u have ur shit not a bank," and "I fucked up buddy i did." When Molino asked whether she had told her uncle that Molino's money was in his bedroom, Figueroa responded, "I admit to it and now im gonna do time so afraid im gonna lose it." In her next text, sent one minute later, she stated that "i will never do anything like this if i knew it would have never happened please."

In the text messages, Molino and Figueroa also discussed at length Figueroa's and her mother's attempts to recover the money from her uncle. Figueroa also asked Molino to lie to the police, that is, to tell them that his brother had taken the money.³ The evening of the theft, Figueroa and her boyfriend offered Molino a $5,000 loan, but she later told police that she was having money problems. Two days later she sent a text message to Molino in which she said she was "broke," by way of explanation as to why she could not come up with the missing money.

To prove that a defendant aided and abetted in the charged offenses, "[t]here is no requirement that the Commonwealth prove precisely what role the defendant played -- whether [s]he acted as a principal or an accomplice (or joint venturer)." Commonwealth v. Sifa Lee, 483 Mass. 531, 547 (2019), quoting Commonwealth v. Silva, 471 Mass. 610, 621 (2015). Instead, the Commonwealth must establish, "beyond a reasonable doubt, that the defendant ‘knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.’ " Silva, supra, quoting Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).

The defendant maintains that the evidence shows only that she told her uncle about the money, but does not support a finding that she intended that he break in and steal it. Viewed in the light most favorable to the Commonwealth, there was evidence from which a rational jury could infer that Figueroa knowingly participated in the charged offenses, with the intent necessary for each offense. See Zanetti, 454 Mass. at 468.⁴ In Figueroa's text messages to Molino she admitted she told her uncle about the money hidden in his bedroom. The text messages ("I admit to it and now im gonna do time") may also be read as a direct admission of guilt. While Figueroa also denied that she was involved several times during the text message exchange, it was for the jury to resolve any conflict in the evidence. See Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 804 (2020), citing Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Notably, nothing else of value in Molino's apartment was taken or inspected by the culprit, who apparently went straight from the front door to Molino's bedroom and searched behind two pieces of furniture before taking the cash. The jury could reasonably infer that Figueroa did not merely let her uncle know that Molino kept cash in his apartment, but instead told him exactly where it was hidden because she intended that he use that information to enter the apartment and take the cash. The timing of her immediate offer to arrange to have her boyfriend loan him money, even though she was broke, was suspicious enough to permit a jury to find that she may have recently acquired ready access to cash.

In addition to this direct and circumstantial evidence,⁵ Figueroa's initial denials of any involvement, as well as her repeated attempts to deflect suspicion onto others reflects consciousness of guilt. See Commonwealth v. Vick, 454 Mass. 418, 424-425 (2009). She repeatedly told the officers during the police interview that she was uninvolved, only to ultimately admit to Molino that she was. She first attempted to blame either one or two black men she claims to have seen in the parking lot, and when that failed, told Molino to tell the police that he suspected his brother was the culprit. This case is therefore unlike those in which knowledge of a piece of the alleged joint venture is insufficient, by itself, to establish the shared intent to commit the underlying offense. See Commonwealth v. Mandile, 403 Mass. 93, 101 (1988) ("Mere knowledge that [joint venturer] was armed ... does not permit the inference of the critical element of intent" to kill). In addition to her admission, there was evidence that the defendant "intentionally assisted" her uncle in the theft by supplying the precise location of the money (citation omitted). Id. A reasonable jury could infer from the evidence that Figueroa intended for her uncle to steal the money.

Regarding the final charged offense, vandalism, "the intent required for wanton defacement of property under G. L. c. 266, § 126A, is general intent." Commonwealth v. McDowell, 62 Mass. App. Ct. 15, 24 (2004). "A defendant's intent, like other mens rea requirements, may be established circumstantially." Id., quoting Commonwealth v. Smith, 17 Mass. App. Ct. 918, 919 (1983). Molino's apartment door was locked. Figueroa did not have a key to the apartment door. Once the jury found that Figueroa told her uncle about the cash in the apartment so that he could steal it, the jury could also reasonably conclude that she had the general intent that the uncle break Molino's lock to accomplish that end.

The defendant's reliance on Commonwealth v. Redmond, 53 Mass. App. Ct. 1 (2001), for the proposition that the destruction of the deadbolt was collateral to the breaking and entering, and therefore could not be separately charged, is misplaced. Redmond addresses the requirement that proof of "wilful and malicious" destruction of property, a specific intent crime, include proof that such destruction was motivated by "cruelty, hostility or revenge." Id. at 4. See G. L. c. 266, § 127. The indictment in Redmond did not charge wanton conduct. See Redmond, supra at 8-9. Here the defendant was charged not only with "willful and malicious" conduct, but with "wanton" conduct under G. L. c. 266, § 126A, and the jury were instructed on each. The jury were permitted to convict on the basis of wanton conduct, a general intent crime. See McDowell, 62 Mass. App. Ct. at 22.

2. Hearsay. At trial a videotape of Figueroa's interrogation was played for the jury. Officer Kuhn repeatedly accused the defendant of participating in the crimes. In addition, Molino's text messages, which are largely comprised of accusations that Figueroa was involved in the theft and his attempts to recover the money from her, were admitted in evidence. Figueroa contends that evidence of both Officer Kuhn's and Molino's accusations...