Commonwealth v. Delong , 60 Mass. App. Ct. 528 ( 2004 )

Mason, J.

Following a jury trial in Superior Court, the defendant was found guilty of armed robbery of a supermarket in the Brighton section of Boston. On appeal from his conviction and also from the denial of his subsequent new trial motion, the defendant claims that the judge erred in admitting evidence of two prior robberies by him, which was offered to identify him as the person who had committed the robbery at issue in Brighton. He also claims that he was denied the effective assistance of counsel. We affirm the conviction.

Background. The Commonwealth’s evidence was as follows. On the morning of January 17, 1998, Kevin Beaton was working as an assistant service manager at the Star Market on Western Avenue in Brighton. At about 10:00 a.m., Beaton responded to a page from Richard LaMonica, a part-time service associate who was working in the small “money room” located behind the courtesy booth at the front of the store. The page asked for someone to pick up the cash that had been deposited from cash registers into a drop safe located at the front of the store, and to bring such cash to the money room for processing.

Beaton went to the safe with Aleika Lewis, a service clerk whom Beaton had asked to serve as his witness for the pickup of the cash. After Beaton had counted the money in the safe, both Beaton and Lewis proceeded to the courtesy booth. As they were doing so, a man whom Lewis had previously seen observing them approached Lewis and said, “excuse me.” Lewis responded, “Just a minute please. I’ll be right with you,” and the man backed off.

A few minutes later, however, the man again approached Lewis and asked to speak to a manager. Lewis attempted to page the store manager, but when he did not respond, she asked Beaton to talk to the man.

Beaton asked the man if he could help him with anything. At that point, the man approached Beaton and said in a soft voice, “I have a .45 and this is a robbery. I want you to take me into the money room.” The man had his hands in his pockets and did not display a gun.

Beaton took the man into the courtesy booth and asked another service associate who was working there, Angela Wilson, to give him the money that was in a drawer in the booth. The man said that he wanted the money in a bag, and so Beaton grabbed a Ziploc bag and put the money in it.

The man then said to Beaton, “I want to go into the money room. I want to get the pickups that you just brought in.” In response to this statement, Beaton took the man into the money room and told LaMonica that a robbery was occurring and he should do what he was told. The man grabbed approximately $3,000 from the safe and put it into a different bag. He also asked about the pickups, but Beaton told him that the pickups had been put into the time lock portion of the safe and, hence, could not be retrieved for another ten minutes. The man then directed Beaton to take him to the front door of the store, and after Beaton had done so, the man left.

Beaton, Lewis, and LaMonica all subsequently described the individual who had robbed them to Boston police Detective Paul Mahoney. Each of them said that the man was a white male, approximately five feet ten inches in height, and approximately 190 to 200 pounds in weight. They also said that the man was wearing a dark stocking cap, sunglasses, a green pullover sweatshirt with a zipper and hood, and dark sweatpants. Beaton and Lewis further stated that the robber had yellowish or “messed up” teeth with gaps in them. A videotape of the incident taken from a security camera in the store also showed that the man had gaps in his teeth.

Two days later, on January 19, 1998, Newton police Officer Pedro Lopez, dressed in plain clothes, was assigned to conduct a security detail inside the Star Market located over the Massachusetts Turnpike in the Newtonville section of Newton. Sometime after 1:00 p.m., Officer Lopez’s attention was directed to a man, later identified as the defendant, standing in line at the customer service desk looking nervously around in different directions while pulling his shirt over his neck. The defendant was dressed in dark clothing, was wearing a knit hat and dark sunglasses, and appeared to match the description of the person who had robbed the Star Market in Brighton just two days earlier.

Officer Lopez moved to the side of the desk in order to get a closer look at the defendant. At that point, the defendant took off his sunglasses and asked a customer service representative for a job application. After receiving the job application, the defendant turned and walked down the stairs leading to the ground floor of the store, and then exited the store. Officer Lopez followed the defendant out of the store, along a street outside, and then around a comer onto another street.

Shortly after the defendant had walked around the comer, he turned around and walked back to Officer Lopez. At that point, Officer Lopez identified himself as a police officer, told the defendant that he matched the description of someone with whom the police wanted to talk, and asked the defendant to walk back to the store with him. As they were doing so, they met up with Detective Nils Anderson of the Newton police department, who had been conducting a surveillance of the store, and also several other officers who had arrived at the scene.

The defendant gave his name to the officers but stated that his identification was located in his car, which was parked behind a laundromat a short distance away. After obtaining the defendant’s keys, Officer Lopez proceeded to the car and retrieved the defendant’s identification.

In the meantime, after observing that the defendant had gaps in his lower teeth and running a warrant check on the defendant’s name, Detective Anderson arrested the defendant and transported him to the police station. He also caused the defendant’s car to be impounded and towed to the Newton police garage. During a subsequent inventory search of the car, the police found tags for several of the items of clothing the defendant was wearing that day, including his sweatshirt and sunglasses, and also a receipt from an Ames department store indicating that the items had been purchased at 1:14 p.m., just forty minutes prior to the stop of the defendant, and had been charged to a credit card bearing the defendant’s last name.

Shortly thereafter, a photographic array was assembled and shown to each of the witnesses to the Brighton robbery, including Beaton, Lewis, LaMonica, and Wilson. Each of them independently identified the defendant as the person who had robbed the Brighton store.

At trial, Beaton, Lewis, and LaMonica, Detectives Mahoney and Anderson, and Officer Lopez all testified to the foregoing events. The Commonwealth also called as witnesses Barbara Sarnie, a service representative employed at the Star Market in the Chestnut Hill section of Newton, and Philip Ferrante, the manager of the Star Market in the Auburndale section of Newton. Sarnie testified that, at about 10:00 a.m. on the morning of January 14, 1998, a man wearing a black hooded-type hat with some sort of attached scarf xyrapped around his mouth, dark sunglasses, a sweatshirt, and dark pants, had approached her at the courtesy booth of the Chestnut Hill store and stated, “This is a robbery and I have a gun. And I want all the money in your drawer.” Sarnie further testified that, in response to the man’s demands, she had taken money out of a drawer in the booth and placed it in a bag the man had given her, and the robber had then turned around and walked out of the store. Sarnie also testified that she subsequently was shown the same photographic array that had been shown to the witnesses to the Brighton robbery, and had identified the defendant as the person who had robbed her.

Ferrante testified that, at about 8:50 p.m. on the evening of January 14, 1998, he had gone to the courtesy booth at the front of the Auburndale store in response to a page by a clerk indicating that someone wanted to see him. Ferrante further testified that, as he approached the booth, he noticed a man standing there who was wearing dark sunglasses, a dark sweatshirt, and dark sweatpants. Ferrante asked the man if he could help him and the man had responded by asking him if he was the manager. When Ferrante responded that he was, the man had stated to him that he had a “.45” in his sweatshirt and ordered Ferrante “to take [him] to the safe.” In response to this demand, Ferrante had taken the man to the money room behind the courtesy desk and, together with a clerk who was there, had put money into a bag. The man had then took the bag and left the store with Ferrante following him out.

Unlike Sarnie, Ferrante did not testify that he had been shown a photographic array. Nevertheless, he identified the defendant at trial as the person who had robbed him and also testified that he had previously made such an identification at a prior hearing.

The Commonwealth also called as a witness Nicholas Geannaris, a loss prevention specialist employed by Star Market. Geannaris identified a series of photographs taken from a videotape made by a security camera of the Brighton robbery which were introduced in evidence, and also videotapes of the Chestnut Hill and Aubumdale robberies, as well as the incident occurring at the Newtonville Star Market on January 19, 1998, which were also introduced in evidence. Geannaris also identified two photographs taken from a videotape made by a security camera at the Brighton store at about 8:15 p.m. on the evening of January 14, 1998, which were introduced in evidence. Although the photographs were “fuzzy in appearance,” Geannaris testified that they showed an individual in the produce area of the Brighton store who appeared to be dressed in dark clothing, a hood, and sunglasses, and who also appeared to have the same physique as the individual shown in the videotape that was made of the robbery of the Aubumdale store occurring at 8:50 p.m. on the evening of January 14, 1998.

Finally, the Commonwealth presented evidence that the Brighton Star Market was located only one and six-tenths miles from the defendant’s home on Quimby Street in Brighton, and that the Chestnut Hill and Aubumdale stores were located only a few miles from the Brighton store.

The defendant’s defense was misidentification, and in addition to bringing out inconsistencies in the testimony of the Commonwealth’s witnesses, he called several alibi witnesses. Specifically, he called his mother, Nancy Blickenstall, his grandmother, Jeanette DeStasio, and his grandmother’s longtime friend, Charles Russo, all of whom testified that the defendant had been at his mother’s house in Brighton at or about 10:00 a.m. on January 17, 1998, when the robbery of the Brighton store had occurred. He also called his wife, Ellen Delong, who testified that she and the defendant had had dinner at a Ground Round restaurant in Waltham on the evening of January 14, 1998, when the robbery of the Aubumdale store had occurred, and had remained there until some time after 8:00 p.m. Finally, the defendant called Steven Molineaux and John Ryan, both of whom testified that the defendant had been at work at a construction site in Boston on the morning of January 14, 1998, when the robbery of the Chestnut Hill store had occurred, and had remained there until approximately 10:00 a.m.

1. Admission of prior bad acts evidence. The defendant claims that the judge erred in admitting evidence pertaining to the prior robberies at the Chestnut Hill and Aubumdale stores because the Commonwealth failed to demonstrate that those prior robberies and the crime charged had “such similarities as to be meaningfully distinctive.” Commonwealth v. Brusgulis, 406 Mass. 501, 505 (1990). The defendant further claims that, even if the evidence were relevant to prove identity, the judge abused her discretion in failing to exclude the evidence on the ground that its probative value was outweighed by its potential for unfair prejudice. See Commonwealth v. Marshall, 434 Mass. 358, 366 (2001).

A trial judge may not admit evidence of acts committed prior to a charged offense to prove the bad character or criminal propensity of the accused, but may admit such evidence if it is relevant to establish a common scheme, pattern of operation, absence of mistake, identity, intent, or motive. Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). To be sufficiently probative, however, the evidence of the prior acts “must be connected with the facts of the case [and] not be too remote in time.” Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001), quoting from Commonwealth v. Barrett, 418 Mass. 788, 794 (1994).

Before evidence of prior bad acts may be admitted to show identity, the Commonwealth must show that “the prior events and the circumstances of the crime charged have such similarities as to be meaningfully distinctive. . . . There must be a uniqueness of technique, a distinctiveness, or a particularly distinguishing pattern of conduct common to the current and former incidents to warrant the admission of evidence of prior bad acts as tending to prove that the defendant was the person who committed the crime charged.” Commonwealth v. Kater, 432 Mass. 404, 414 (2000), quoting from Commonwealth v. Jackson, 417 Mass. 830, 836 (1994).

Each of these preliminary determinations is committed to the sound discretion of the trial judge, who must also consider whether the probative value of the evidence is outweighed by its prejudicial effect. Commonwealth v. Leonard, 428 Mass. 782, 786 (1999). The judge’s decision “will be upheld on appeal absent palpable error.” Id., quoting from Commonwealth v. Marrero, 427 Mass. 65, 68 (1998).

Here, the Commonwealth showed that all three robberies involved Star Markets that were located within a few miles of each other and of the defendant’s home. They also occurred within three days of each other. In each instance the robber was dressed in sweat clothes and a hood or soft hat, and also wore dark sunglasses. In each instance, the robber accosted a victim near the courtesy booth of the store and said that he had a “.45,” or a gun, but failed to display any such weapon. He also demanded that the money he was taking be put in a bag, and he remained calm through all three incidents. These numerous similarities were sufficient to show a distinctive pattern or scheme and, hence, warrant admission of the evidence of the prior robberies as tending to identify the defendant as the person who committed the robbery at issue. See Commonwealth v. Marrero, 427 Mass. at 71 (evidence of prior assaultive behavior by defendant occurring in same general locale as assault at issue and under similar circumstances properly admitted); Commonwealth v. Leonard, 428 Mass. at 787 (evidence of prior arson committed in same general area as arson at issue and in location near defendant’s home properly admitted). Cf. Commonwealth v. Sullivan, 436 Mass. 799, 804-805 (2002) (indictments arising out of three episodes occurring in course of one month, each of which involved robbery or attempted robbery of jewelry store located in same geographic region, properly joined for trial). Contrast Commonwealth v. Brusgulis, 406 Mass. at 506-507 (evidence of prior assaults committed far apart in both time and location improperly admitted). We therefore reject the defendant’s claim that the evidence of the prior robberies constituted inadmissible prior bad act evidence.

We also reject the defendant’s claim that, even if the evidence pertaining to the prior robberies was otherwise admissible, the judge still should have excluded the evidence on the ground that its probative value was outweighed by its potential for prejudice. While the evidence of the prior robberies was certainly prejudicial to the defendant’s case, it was not unfairly so. Moreover, the judge specifically instructed the jury that the evidence of the Chestnut Hill and Aubumdale robberies was not “substantive proof that [the defendant] committed those other robberies,” or evidence “that the defendant has a criminal personality or bad character,” but was admissible “solely on the limited issue of identification,” and then only if the crimes were “not too remote in time.” These instructions were adequate to limit any unfair prejudice to the defendant arising from admission of the evidence pertaining to the prior robberies. We therefore see no abuse of discretion in the trial judge’s conclusion that the evidence was not unduly prejudicial. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 820-821 (1998); Commonwealth v. Whiting, 59 Mass. App. Ct. 104, 109 (2003).

2. Ineffective assistance of counsel. The defendant claims that his counsel was ineffective in (1) failing to move to suppress the evidence seized from his car on the ground that the car had been improperly impounded and subjected to an inventory search following his arrest; and (2) failing to secure the presence at trial of two additional alibi witnesses who could have corroborated his wife’s testimony that he had had dinner at the Ground Round restaurant in Waltham on the evening of January 19, 1998, and had remained there until after 8:00 p.m.

To obtain a new trial on the ground of ineffective assistance of counsel, a defendant must show “serious incompetency, inefficiency, or inattention” on the part of his trial counsel that “likely deprived the defendant of an otherwise available, substantial ground of defen[s]e.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, it does not appear from the materials the defendant submitted in support of his new trial motion that defense counsel likely deprived the defendant of an otherwise available substantial ground of defense by failing to move to suppress the evidence seized from his car on the ground that the car had been unlawfully impounded. Rather, it appears from those materials (which include the transcript of a hearing a judge had held on a motion to suppress that the defendant had filed in the separate proceeding brought against him in Middle-sex County as a result of the Chestnut Hill and Aubumdale robberies [Middlesex County trial])¹ that, at the time the defendant was arrested outside the Newtonville Star Market on the afternoon of January 19, 1998, he was not accompanied by his wife or any other person who might have taken custody of his car. It also appears from the materials that the defendant’s car was parked in a private parking lot that was posted with signs limiting parking to customers of the laundromat and other nearby businesses. In these circumstances, where the defendant himself suggested no alternative, and private towing was a real possibility if the police did not impound the car, the police could lawfully impound the car. See Commonwealth v. Delong, ante 122, 128 (2003). See also Commonwealth v. Ellerbe, 430 Mass. 769, 775-776 (2000); Commonwealth v. Dunn, 34 Mass. App. Ct. 702, 703-704 (1993), and cases cited. Contrast Commonwealth v. Brinson, 440 Mass. 609, 614-615 (2003) (impoundment of vehicle improper where vehicle was parked legally in commercial parking lot located considerable distance away from place of defendant’s arrest).² Having done so, they could conduct a routine administrative inventory search of the car in the police garage pursuant to previously promulgated inventory procedures. See Commonwealth v. Garcia, 409 Mass. 675, 680-685 (1991). Hence, a motion to suppress the fruits of the inventory search conducted in this case would not have been successful.

We likewise conclude that the defendant’s trial counsel did not deprive the defendant of an “otherwise available, substantial ground of defen[s]e” by failing to obtain the presence of the two additional alibi witnesses referred to by the defendant. While both of these witnesses testified at the Middlesex County trial that they had been employed at the Ground Round restaurant in Waltham on the evening of January 14, 1998, and had seen the defendant and his wife enter the restaurant at or about 7:00 p.m. on that evening, neither of them could say definitely when the defendant and his wife had left the restaurant.³ Moreover, their testimony pertained to the Auburn-dale robbery only, rather than to the Brighton robbery that was at issue in the case. The testimony was also merely cumulative of the testimony of the defendant’s wife, who stated not only that she and her husband had been present at the Ground Round in Waltham on the evening of January 14, 1998, but also that she had retained and brought with her to the Middlesex County trial a receipt showing that they had not paid their bill at the Ground Round until 7:57 p.m. on that evening. In view of these circumstances, we conclude that the defendant’s trial counsel was not ineffective in failing to obtain the presence of these two additional alibi witnesses. See Commonwealth v. Sarmanian, 426 Mass. 405, 407-408 (1998) (no error where counsel did not call additional witnesses but evidence from them would have been cumulative, not dispositive); Commonwealth v. Rodriguez, 57 Mass. App. Ct. 368, 372-373 (2003) (same).

Judgment affirmed.

Denial of motion for new trial affirmed.

1 The defendant claimed in this motion that the evidence seized from his car should be suppressed because, when Officer Lopez went to his car to obtain the defendant’s identification, he improperly opened a plastic bag and discovered a receipt showing that the defendant had just recently purchased the clothes he was wearing, and that the subsequent seizure was the “fruit” of this unlawful search. The motion judge agreed that Officer Lopez’s actions were unlawful, but found that the seizure was the fruit of the subsequent, lawful inventory search, rather than of this initial unlawful activity.

2 We recognize that in Commonwealth v. Brinson, 440 Mass. at 615 n.6, the Supreme Judicial Court left open the question whether an impoundment might be improper merely because there was a considerable distance between the place of the defendant’s arrest and the location of his parked car, regardless of the existence of one or more attendant circumstances, such as that the car was parked in a restricted area, that might otherwise justify the impoundment. Here, however, it appears from the record that the laundromat parking lot, although not contiguous to the Star Market where the defendant was arrested, was located only a short distance away, specifically just beyond a municipal parking lot which was located across the street from the market.

3 We recognize that one of the witnesses “estimated” that the defendant and his wife did not leave the restaurant until 8:45 or 9:00 p.m., and that this testimony might have tended to show, at the least, that the defendant could not have been the individual shown on the videotape taken at the Brighton store at 8:15 p.m. on the evening of January 14, 1998, whom Geannaris testified appeared to be wearing the same clothing and have the same physique as the individual shown on the videotape that was made of the robbery of the Aubumdale store occurring later that evening. This was not a central issue in the case, however. Indeed, the prosecutor did not refer to the January 14 videotape taken at the Brighton store during her closing argument or assert that the defendant was the individual shown on that videotape.