Commonwealth v. Silvia

97 Mass.App.Ct. 151

143 N.E.3d 476

COMMONWEALTH

v.Donna SILVIA.

No. 19-P-386

Appeals Court of Massachusetts, Bristol..

Argued January 3, 2020

Decided March 10, 2020

Dana Alan Curhan for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: Hanlon, Blake, & Hand, JJ.

BLAKE, J.

Following a jury trial in the Superior Court, the defendant, Donna Silvia, was convicted of mayhem, assault and battery by means of a dangerous weapon causing serious bodily injury,¹ and intimidation of a witness.² Prior to trial, the defendant moved to suppress statements that she made to the police and evidence obtained from the search of a video surveillance system.

The motions were denied. Later, however, in response to the defendant's motion for reconsideration, the Commonwealth agreed to the suppression of the defendant's statements that were made during her interview at the police station, after her involuntary transport to the station without probable cause. See Commonwealth v. Melo, 472 Mass. 278, 297-298, 34 N.E.3d 289 (2015). On appeal, the defendant contends that the evidence was insufficient to prove that she engaged in a joint venture to commit mayhem and that it was error to deny her motion to suppress the evidence obtained from the surveillance system.³ We affirm.

Background. In light of the defendant's challenge to the sufficiency of the evidence, we review the evidence under the familiar Latimore standard. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). The defendant owned Columbia Towing⁴ in Fall River. The defendant ran the company; she made all of the business decisions and handled all of the money. The victim had worked for Columbia Towing, driving a tow truck and repairing vehicles, since 2005 or 2006. During that time, he lived in an apartment owned by the defendant. The victim considered the defendant and her husband to be "like family." In March 2012, the defendant's relationship with the victim took an abrupt turn for the worse when the defendant, who for several years had been concerned that money had gone missing from the towing company, accused the victim of stealing $50,000.

Matters rapidly came to a head. On March 27, 2012, the defendant watched as her husband and James Connors, a part-time employee of Columbia Towing, beat the victim. During the beating, which took place at Columbia Towing, the defendant questioned the victim about the missing money and demanded that he admit to stealing the money.⁵ The victim denied that he had stolen the money. Before the victim left, the defendant took the victim's cell phone, truck keys, and bike.

When the victim returned to work the next day, the defendant continued to demand a written confession from him. At around midday, she told the victim to write a confession; he wrote a statement denying that he had stolen the money but suggesting how it could have been stolen. After the defendant read the statement, she demanded that the victim write another letter confessing to stealing the money. At that point, John Soares, a customer of Columbia Towing, entered the building.⁶ The victim knew Soares, as he was often at the business and performed some plumbing work there and at other properties owned by the defendant. The victim had never had any prior problems with Soares. When Soares entered the building, he was carrying a bag of tools. Soares first went to the defendant's office and met with the defendant, her husband, and Connors.⁷

Columbia Towing was equipped with a surveillance system that included cameras, monitors, and a digital video recorder (DVR). After Soares arrived, the defendant's husband and Connors moved the surveillance cameras in the garage so that they faced the ceiling.

While the defendant was meeting in her office with Soares, the victim sat on the bench in the hall, as instructed by the defendant. Soares, who held the bag that he had brought with him, then told the victim to accompany him to the garage. The two entered the garage. Video surveillance recordings from cameras outside the garage showed the defendant, her husband, and Connors leaving the building as Soares led the victim to the garage. In the garage, Soares asked the victim if he had stolen the defendant's money; the victim again denied doing so. Soares responded, "You know why they call me the sandman?

... Because people go to sleep." Soares removed a set of cutting shears, some wipes, and a propane blow torch from his bag. Soares told the victim to put a towel in his mouth and place his hands on a tool bench. He then instructed the victim to close his eyes. After the victim complied with all of Soares's directives, the victim felt his right pinkie finger being cut and heard a snip. The victim opened his eyes and found that his finger was dangling off his hand by a piece of skin. Soares briefly left the garage. The victim remained where he was; he was in shock and could not believe what had happened.

At some point the defendant had come back into the building and gone to her office. She passed a window that looked into the garage. Soares met the defendant in her office. The video recording, as reflected in the still photographs, shows the defendant looking through her belongings and handing something to Soares. When Soares returned to the garage, he had a knife in his hand, which the victim had not seen before. Soares used the knife to make the final cut that severed the victim's finger, then he left the garage with something in his hand. The victim wrapped his hand with the towel that had been in his mouth.

After Soares left the garage, he walked into the defendant's office and placed the severed finger on the counter in front of the defendant. Soares then returned to the garage, cleaned the shears with the wipes that he had brought with him, and burned the wipes with the blow torch from his bag.

The defendant entered the garage; in a stern voice, she repeatedly told the victim "to tell the truth." The victim eventually replied, "Fine. Whatever. I did it." The defendant then told the victim to say that he lost his finger in an accident someplace other than at Columbia Towing. At some point after the defendant entered the garage, Soares took his bag and left. Neither Soares nor the defendant requested any medical assistance for the victim and neither preserved the finger for possible reattachment.⁸

After the defendant left the garage, she returned to her office. Because the victim was cold, he went to the office and asked the defendant for his keys so that he could retrieve a jacket from his truck. The defendant gave him the keys. After the victim retrieved his jacket, he returned to the office, where the defendant, her husband, and Connors were eating Chinese food. Connors then asked the victim to step into the bathroom; after they entered the bathroom, the victim heard the police yelling his name.

When the victim came out of the bathroom, the police noticed that the victim had facial injuries and that his right hand was wrapped in a blood-soaked rag. After some prodding by the police, the victim removed the rag and the police saw that the victim's right pinkie finger had been cut off with a very smooth and clean cut. They described the victim as shocked, nervous, scared, and defeated.

The defendant focused her comments to the police -- not on the victim's condition -- but on the missing money. She told the police that the victim had stolen money from her business and they had worked out a payment plan; she did not want to press charges, she just wanted the money back. She did not mention the victim's finger.

After the victim was transported to a hospital, the police "froze" the scene at Columbia Towing to conduct an investigation.

They noticed that the cameras inside the garage were pointed to the ceiling and the video monitoring system appeared to be missing some of its recording components. One of the police officers at the scene saw electrical components and a black rectangular box that appeared to be a DVR inside a red Ford Expedition (SUV) parked across the street from Columbia Towing. Because the police believed that these items were the equipment missing from Columbia Towing, they secured and towed the SUV from the scene. The DVR contained surveillance video recordings from Columbia Towing; the recordings were admitted in evidence, along with still photographs from those recordings.⁹ The surveillance system did not capture what occurred in the garage.

Discussion. 1. Sufficiency of evidence. The defendant contends that the evidence was insufficient to prove that she knowingly participated in a joint venture with Soares to commit mayhem. The elements of mayhem are set forth in G. L. c. 265, § 14, which states: "Whoever, with malicious intent to maim or disfigure ... cuts off or disables a limb or member, of another person, and whoever is privy to such intent, or is present and aids in the commission of such crime," is guilty of mayhem. The Commonwealth proceeded under a theory of joint venture liability and therefore was required to prove "that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 466, 910 N.E.2d 869 (2009). Mere presence at the scene of the crime is insufficient to prove a defendant's knowing participation, even if "supplemented by evidence that the defendant ‘knew about [the crime] in advance.’ " Commonwealth v. Gonzalez, 475 Mass. 396, 414, 56 N.E.3d 1271 (2016), quoting Zanetti, supra at 470, 910 N.E.2d 869 (Appendix). "Rather, there must be some additional proof that the defendant ‘consciously ... act[ed] together [with the principals] before or during the crime with the intent of making the crime succeed.’ " Gonzalez, supra, quoting Zanetti, supra. The intent element may be established "by direct or inferential proof that the assault was intentional, unjustified, and made with the...