Commonwealth v. LaLly

83 Mass.App.Ct. 1122

984 N.E.2d 892

COMMONWEALTH

v.Brian M. LALLY.

No. 12–P–400.

Appeals Court of Massachusetts.

April 3, 2013.

OPINION TEXT STARTS HEREBy the Court (KANTROWITZ, BERRY & AGNES, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury found the defendant, Brian M. Lally, guilty of witness intimidation, attempt to commit a crime, and threat to commit a crime. On appeal, he raises a host of issues.

Facts. On March 10, 2011, Sergeant John Vano of the Plymouth County sheriff's department went to 99 Ruggles Street in Quincy to locate one Kyle Denn, for whom Vano had several arrest warrants.¹ When the defendant answered the door, he responded to Vano's inquiry by stating, “Kyle Denn is not here. You can't come in my fucking house. Get a fucking search warrant. I'm not letting you in.” Subsequently, Tom Foley, the boyfriend of the defendant's mother, Kathy, came from upstairs in the house and advised them that Kathy had given her consent to enter.² After a K–9 officer found Denn hiding in the basement, the defendant was taken into custody by Quincy police.

While in the cruiser, the defendant yelled, screamed, and kicked the cruiser's rear passenger window between ten and twenty times with his shod feet. As Quincy police Officer Declan Breslin instructed him to stop kicking the window, the defendant saw Foley and yelled, “Tom, go back to the hill, you fucking rat. Stop snitching, motherfucker.” At trial, Officer Breslin testified that Foley heard the defendant's remarks.

During the ride to the police station, the defendant told Officer Breslin to “watch out” and that when the defendant got out, Breslin would get “fucked up.” The defendant also made statements about his affiliation with the 730 gang, a group well known to Quincy police officers.

Erroneous admission of evidence. The defendant claims that error occurred when Sergeant Vano testified that Kathy resided in the home and gave her consent to search. This evidence was properly admitted, not to prove the truth of the matters asserted, but to explain the extent of police knowledge.³ See Commonwealth v. LaVelle, 414 Mass. 146, 155 (1993). See also Mass. G. Evid. § 801(c) (2012).

Next, he claims error in Officer Breslin's testimony that Foley heard the defendant's statement. While ordinarily one witness cannot testify to what another person heard, here there was no error in that the defendant was “yelling,” “angry and mad,” and using “very loud” volume only ten to fifteen feet away from Foley.

Intimidation. The defendant claims that the evidence was insufficient in that his statements were neither threatening nor intimidating. To support a conviction of intimidation of a witness, the Commonwealth need not prove the victim was in actual fear or that the intimidation was successful. See Commonwealth v. Robinson, 444 Mass. 102, 109–110 (2005). Accord Commonwealth v. Casiano, 70 Mass.App.Ct. 705, 709 (2007). Also, where an obvious connection between the defendant's actions and his intent is lacking, “one can make an inference based upon [t]he place, time, and circumstances [of the incident].” Ibid. (internal quotation marks and citation omitted).

Here, a reasonable trier of fact sensibly could rely on the statements “fucking rat” and “stop snitching,” made while the defendant was in custody and in the presence of police, to find that the defendant intended to intimidate Foley.

Likewise, the defendant's statements directed at Officer Breslin in the police cruiser to “watch out,” and that he would get “fucked up,” presented the jury with sufficient evidence to find the intent necessary to sustain the conviction.⁴

Attempt. The defendant argues that there was insufficient evidence for the jury to infer malicious intent in kicking the cruiser window. That the cruiser window did not actually break is immaterial because the jury could infer that the defendant, in kicking the window between ten and twenty times with shod feet, intended, took an overt act, and came reasonably close to damaging the vehicle. See Commonwealth v. Marzilli, 457 Mass. 64, 66 (2010); Criminal Model Jury Instructions for Use in the District Court § 4.120 (2009).

Improper argument. The defendant claims the prosecutor's closing remarks—“Mr. Foley could've been a witness in this case” and Breslin will “get fucked up” “in the street”—were improper and prejudicial. In the context in which the comments were made, there was no error in that an element of the intimidation charge was that Foley could have been a witness. See G.L.c. 268, § 13B.

Similarly, in the circumstances, the “in the street” comment was not unfairly prejudicial where the jury heard evidence of the defendant's affiliation with the 730 gang, and it was simply a difference in semantics in recounting Officer Breslin's testimony.⁵ Moreover, that the jury acquitted the defendant of one charge, i.e., threat to commit a crime, shows that they performed their duties conscientiously and that these statements did not unfairly prejudice the defendant. See Commonwealth v. Bourgeois, 68 Mass.App.Ct. 433, 438 (2007).

Jury issues. The defendant argues that extraneous influences and procedural errors prejudiced the jury, requiring a new trial.⁶ We disagree.

Principally, “[w]e afford a trial judge ‘a large degree of discretion’ in the jury selection process,” Commonwealth v. Seabrooks, 433 Mass. 439, 442–443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995), and “[t]he decision to deny a mistrial lies within the sound discretion of the judge,” Commonwealth v. Amirault, 404 Mass. 221, 232 (1989).

Here, the judge individually examined prospective juror number one and juror number five, excused them, and issued a curative instruction regarding the latter's statement.^7,8 The judge also instructed the venire that they should restrict themselves to evidence heard in the courtroom. See Commonwealth v.. Helfant, 398 Mass. 214, 228 (1986) (court presumes jury follow judge's instructions). Given these actions, the judge employed adequate means to correct any error or prejudice, and was well within his discretion in denying a mistrial.⁹

Jury instruction. The defendant argues that the judge administered erroneous jury instructions by omitting both “wilfully” in the witness intimidation charge, and “beyond a reasonable doubt” in the attempt charge. As defense counsel lodged no objection, we review only for a substantial risk of a miscarriage of justice. Commonwealth v. Dosouto, 82 Mass.App.Ct. 474, 481 (2012).

A judge is not required to use exact language from a model jury instruction so long as all necessary instructions are given adequate words. Cf. Commonwealth v. Maiden, 61 Mass.App.Ct. 433, 434–436 (2004). “[W]ilful conduct is intentional and by design in contrast to that which is thoughtless or accidental.” Commonwealth v. McDowell, 62 Mass.App.Ct. 15, 22 (2004) (citation and internal quotation marks omitted).

Here, the judge sufficiently apprised the jury that the defendant's conduct needed to be wilful where the judge instructed them that to convict they were required to find that the defendant “did this, made this alleged threat.” Similarly, the omission of the preface “beyond a reasonable doubt” in the attempt instruction did not create a substantial risk of a miscarriage of justice as the judge made clear elsewhere during the jury charge that “the Commonwealth must prove each and every essential element of each of these charges beyond a reasonable doubt.” ¹⁰

Lesser included offense. The Commonwealth...