Commonwealth v. Lavin

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17-P-408 Appeals Court

COMMONWEALTH vs. TIMOTHY LAVIN.

No. 17-P-408.

Worcester. March 12, 2018. - October 30, 2018.

Present: Vuono, Hanlon, & Wendlandt, JJ.

Robbery. Home Invasion. Assault and Battery. Firearms.
Evidence, Fingerprints, Disclosure of evidence, Expert
opinion, Argument by prosecutor. Practice, Criminal,
Disclosure of evidence, Mistrial, Instructions to jury,
Argument by prosecutor. Witness, Expert.

Indictments found and returned in the Superior Court
Department on February 17, 2011.

The cases were tried before Janet Kenton-Walker, J.

Justin Drechsler for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.

HANLON, J. After a jury trial, the defendant was convicted

of armed robbery while masked, in violation of G. L. c. 265,

§ 17; home invasion, G. L. c. 265, § 18C; assault and battery,

G. L. c. 265, § 13A (a); possession of ammunition without a
 2

firearm identification card, G. L. c. 269, § 10 (h); and

impersonating a police officer, G. L. c. 268, § 33.1 At the end

of the trial, after the defendant was found guilty of possession

of ammunition without a firearm identification card, he pleaded

guilty to a sentence enhancing element of that charge, one that

charged him with being a career criminal pursuant to G. L.

c. 269, § 10G.

The defendant appeals, arguing that the judge erred (1) in

denying his motion for a required finding of not guilty; (2) by

allowing the Commonwealth's expert to testify about certain

fingerprint evidence; and (3) in failing to grant a mistrial or

to provide a curative instruction to the jury about comments

made during the prosecutor's closing argument that the defendant

alleges were burden-shifting. The defendant also contends that

he was unfairly prejudiced by the Commonwealth's late disclosure

of footwear impression evidence. We affirm.

Background. The jury heard the following evidence. On

November 27, 2010, the victim was living in a second-floor

apartment in a two-family house owned by his grandmother, who

lived in the first-floor apartment. At approximately 2 A.M., he

was watching a movie when his dog began pacing, "barking and

1 Charges of possession of a firearm without a firearm
identification card as a career criminal, use of a firearm while
committing a felony, and possession of a class D substance were
dismissed at the request of the Commonwealth prior to trial.
 3

moaning, [and] growling . . . [which] was unusual." Shortly

afterwards, three men broke down his front door and entered the

apartment, yelling, "WPD, WPD, Officer O'Malley. Where's the

drugs, cocaine?"2

Each intruder was wielding what appeared to be a

semiautomatic firearm; two of the men were dressed in dark

clothes and wore black ski masks and black "hoodies." The third

man was not wearing a mask; he was approximately five feet,

seven to nine inches tall, and had a "long skinny face." The

victim described him as a "darker skinned individual. He wasn't

Caucasian."3 The victim was unable to give any physical

description of the other two men, apart from clothing, because

they were masked and wore hoodies. One of those two men, who

stayed with the victim "pretty much the whole time," was the

defendant4; the victim described him as the largest of the three.

2 The victim understood "WPD" to mean the Worcester police
department. Shortly after the intruders entered, the victim
realized they were not police officers. He testified, "So when
they weren't presenting any badges and they were just flashing
guns at me, that's when I kind of noticed they just weren't
police."

3 Later, the victim clarified, "Not too dark-skinned, but he
wasn't Caucasian." He described himself as "[h]alf Puerto
Rican, half Irish," and testified that the man was darker than
he was.

4 We refer to this man as the defendant, although there was
no direct identification testimony. The Commonwealth's case was
circumstantial and the issue for the jury at the end of the
trial was, in fact, whether this man was the defendant.
 4

He was approximately six feet tall, with a "[b]road build"; he

wore a black hoodie, dark jeans, a black mask, and "Jordan 4"

sneakers that were predominantly black with red and gray

features.5 The other masked intruder was approximately five

feet, ten inches tall.

The victim was very afraid, and his dog was barking

continuously and urinating "all over the kitchen floor." The

"individuals were shouting at [him], telling [him] to put the

dog in the cage," and he did so. After that, "the individuals

zip-tied" the victim's hands behind his back. The defendant

then pointed a gun at the victim and ordered him into the living

room, where the victim "eventually . . . sat down on [his]

couch." The victim noticed his new cellular telephone (cell

phone) on the arm of the couch; although he was able to slide it

behind his back unnoticed, he was unable to gain access to it.6

The defendant stayed in the living room with the victim

while the other two men ransacked the apartment. At some point

while he was watching over the victim, the defendant asked the

victim where the drugs and money were located in the apartment.

5 The victim testified that he was a sneaker collector and,
therefore, noticed the specific details of this intruder's
sneakers.

6 The victim's previous cell phone, a "Samsung Instinct,"
had been deactivated but was located on a stand in the apartment
kitchen.
 5

The victim responded that he had a little marijuana in a drawer

in the kitchen pantry. The defendant then led the victim at

gunpoint to the kitchen pantry, but when he saw the victim's

marijuana (which weighed approximately one ounce), the defendant

insisted that there had to be more. The victim responded that

he had no other drugs, and the defendant forced him back into

the living room and ordered him to lie face down on the floor.

When the victim refused, the defendant threatened him with the

firearm; the victim believed he was going to die and did

eventually lie face down on the floor. At the same time, the

defendant also was communicating occasionally with the two other

men.

While he was lying on the floor, the victim tried to reach

for his cell phone, now under the couch, but the defendant

grabbed it away from him. The defendant then left the living

room, but quickly came back and reached behind the television

stand, grabbed a wire, and used the wire to tie the victim's

legs. He left the victim two more times, each time asking the

victim if there was anything else in the apartment. The last

time the defendant returned to the victim he was carrying a

shoebox containing "junk" (including perfume and jewelry) and

approximately $1,600 in cash. The victim estimated that, at

that point, the men had been in his apartment for approximately

forty-five minutes.
 6

Roughly ten minutes later, the victim no longer heard the

intruders and he believed that they had left. He was able to

get to his feet and find a knife, but he was unable to cut the

ties. He then "rolled down the stairs" to his grandmother's

apartment and woke her up; his grandmother also was unable to

cut the ties, so the victim asked her to call his friend, who

lived nearby, to come and help. The friend came and freed the

victim from the ties, and left shortly thereafter. The victim's

grandmother then called the victim's mother, who arrived a short

time later and called the police.

The victim then went back upstairs to his apartment to

check on the damage. Walking up the stairs, he noticed a fully

loaded ammunition clip on the stairs. He picked up the clip

with the sleeve of his sweater, and then placed it back down in

the same place.7 Although he spoke to the police when they

responded to the call, the victim also went to the Worcester

police station later that day and gave a more detailed account

of the home invasion, including a description of the items that

had been taken. He also described the Jordan sneakers the

defendant had worn.8

7 The victim had not seen the ammunition clip on the stairs
when he returned to his apartment before the home invasion.

8 The victim returned to the police station after that time
and gave the police a list of items taken from his apartment
during the home invasion.
 7

During their investigation, police officers recovered the

ammunition clip from the stairs to the victim's second-floor

apartment. Inside the apartment, they seized plastic zip ties

and a "webcam-type device with a wire"; each of the items was

logged as evidence of the crime. Officers also canvassed the

victim's neighborhood; one neighbor, who lived about four houses

away from the victim, told the police that he had been smoking a

cigarette on his front porch when he noticed a tan vehicle

parked across the street from his house at about 3 A.M.

According to the neighbor, it was a "strange" vehicle, that is,

he did not recognize it as belonging to anyone on the street.

The neighbor saw a person get out of the vehicle and put on a

hood, and then meet two individuals who were walking out of the

woods at the end of the street, which is a "dead-end." The

neighbor then saw the three men walk into the victim's house.

Approximately one-half hour later the neighbor heard the vehicle

drive away.9

Worcester police Lieutenant David Grady recovered two

latent fingerprints, one from the base of the ammunition clip

9 The neighbor testified that even though, according to the
police report, he had identified the make, model, and color of
the vehicle when he was interviewed by the police around the
time of the incident, at trial, he could not recall specific
details. He remembered that he had spoken with the police, and
agreed that he had told them at the time that it was a tan
vehicle, but he was unable to be more explicit.
 8

and one from a zip tie found in the victim's apartment. After

processing the fingerprints, Grady matched a fingerprint

recovered from the ammunition clip to the defendant's left

thumbprint.

At about 9 A.M. on November 28, 2010, police officers went

to the defendant's girl friend's house. Inside the house, the

officers found the defendant lying awake in one of the bedrooms

and arrested him. In the same bedroom, the police found two

bags containing two replica revolvers and one replica

semiautomatic handgun. In addition, when he was arrested, the

defendant was wearing a pair of Jordan sneakers, which the

victim later identified as the sneakers worn by the intruder who

had kept watch over him.

Later that day, after the police sought and received a

search warrant, they returned to the girl friend's house.

Outside the house, an officer saw a "light-colored Chevy Blazer"

parked in the driveway.10 During the search, they seized

additional evidence from the same bedroom where the defendant

was found, including a black hooded sweatshirt and a pair of

jeans from a hamper, winter knit hats from a pile of clothing on

the floor, photographs of the defendant from a box in the

10The prior evening (on the day when the home invasion
occurred), the same officer noticed that the defendant's girl
friend had driven that same Chevy Blazer to the police station.
 9

closet, and a black bag containing, among other things, black

gloves, bandanas, a replica revolver, and a replica

semiautomatic handgun. In a second bedroom, officers found

another black replica firearm and, in the kitchen, a garbage bag

containing a Samsung cell phone with its battery and back cover

removed. The victim later identified the seized Samsung cell

phone as his.

Discussion. 1. Motion for required finding of not guilty.

In reviewing the denial of a motion for a required finding of

not guilty, we review the evidence in the light most favorable

to the Commonwealth, along with reasonable inferences therefrom,

to determine whether we are satisfied that the Commonwealth

presented "enough evidence that could have satisfied a rational

trier of fact of each . . . element beyond a reasonable doubt."

Commonwealth v. Torres, 468 Mass. 286, 292 (2014), quoting

Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The

jury's inferences must be "reasonable and possible" (quotation

omitted). Commonwealth v. Woods, 466 Mass. 707, 713, cert.

denied, 134 S. Ct. 2855 (2014). In this case, the question is

whether the Commonwealth presented sufficient evidence to

identify the defendant as one of the three intruders.

Relying on Commonwealth v. Morris, 422 Mass. 254 (1996),

the defendant argues that the thumbprint on the ammunition clip

was the only evidence identifying him as one of the intruders
 10

and that evidence was insufficient to prove beyond a reasonable

doubt that he left the thumbprint on the clip during the

commission of the crime. In Morris, the Supreme Judicial Court

held that fingerprint evidence is admissible and that

"[f]ingerprint evidence coupled with other evidence may

rationally link a defendant to a crime." Id. at 257. However,

there, the court concluded that fingerprint evidence on a mask

worn by one of a group of intruders, even when considered with

other evidence, was not sufficient to establish beyond a

reasonable doubt that "the defendant had been at the crime scene

and impressed his thumbprint on the mask at that time." Id. at

259. In that case, there also was evidence that "linked the

defendant, or at least his residence," to two of the known

intruders. Id. at 258. Nonetheless, the court concluded that

the evidence was insufficient -- even when combined with

evidence of the defendant's "possible resemblance to one of the

intruders, the general resemblance of the motor vehicle owned by

the defendant's mother to a vehicle leaving the crime scene, and

the clarity of the thumbprint." Id. The court determined that

this "add[ed] little weight to the evidence," and concluded that

"[o]n the evidence a doubt that was reasonable as to the

defendant's guilt had to remain." Id. at 260. See Commonwealth

v. Anitus, 93 Mass. App. Ct. 104, 108 (2018) ("[T]he presence of

a fingerprint on an object alone provides insufficient data to
 11

determine when the fingerprint was placed on the object.

Indeed, fingerprints can last for months after placement"

[citations omitted]).

The facts in this case are easily distinguished because

there was considerable evidence besides the thumbprint linking

the defendant to the crime. First, the victim described the

defendant, the largest of the three intruders (who had stood

watch over him), as being approximately six feet tall with a

"[b]road build" and wearing dark jeans, a black "hoodie," and

black "Jordan 4" sneakers with red and gray features. In the

bedroom where the police found the defendant, they also found a

black hooded sweatshirt and a pair of jeans in a hamper. At the

time of his arrest, the defendant was wearing Jordan sneakers.

The victim later identified the sneakers as those worn by the

largest intruder who had kept watch over him during the home

invasion.

Second, the victim told the police that the three intruders

were carrying semiautomatic weapons when they broke into his

apartment. In the bedroom where they found the defendant, the

police also found bags containing replica revolvers and a

replica semiautomatic weapon, photographs of the defendant in

the closet, and several more replica firearms.

Perhaps most important, "critically important," according

to the judge when she denied the defendant's motion for a
 12

required finding, the police found in a garbage bag in the

kitchen a Samsung cell phone (broken in three pieces). When the

victim went to the police station for an interview soon after

the home invasion, he described for the police items taken from

his apartment during the home invasion, including a Samsung cell

phone. He also identified that Samsung cell phone recovered

during the search as the cell phone missing from his apartment

after the home invasion.11 In addition, as the judge noted,

given that the victim had not observed the ammunition clip

earlier, it is very likely that it was left on the victim's

stairway at the time of the home invasion and that the

defendant's fingerprint was impressed on it at that time.

Finally, the victim's neighbor told the police that he saw

a tan vehicle parked near the victim's home around the time of

the incident; he saw someone get out of the vehicle, "put a hood

on," and go into the victim's house with two other individuals

who appeared to have "come out of the woods" near the end of the

victim's dead-end street. At the time the police executed a

search warrant at the house of the defendant's girlfriend, one

of the officers noticed a "light-colored Chevy Blazer" parked in

the driveway of that house.

11When one of the officers "powered up" the Samsung cell
phone, the victim was able to predict accurately what would
appear as well as "the first several contacts" recorded on the
cell phone.
 13

We are satisfied that, here, the fingerprint evidence

coupled with all of the other evidence rationally linked the

defendant to the crimes charged and was sufficient to persuade

the jury beyond a reasonable doubt of the defendant's guilt.

See Commonwealth v. Webster, 480 Mass. 161, 167 (2018) ("To be

sure, the Commonwealth's case was circumstantial. Even so,

'circumstantial evidence is sufficient to establish guilt beyond

a reasonable doubt.' Commonwealth v. Miranda, 458 Mass. 100,

113 [2010], cert. denied, 565 U.S. 1013 [2011], S.C., 474 Mass.

1008 [2016]"). See also Brangan v. Commonwealth, 478 Mass. 361,

364-365 (2017). As a result, the judge did not err in denying

the defendant's motion for a required finding of not guilty.

2. Late disclosure of evidence. A few weeks before trial,

the Commonwealth provided to the defendant photographs of

"footwear impressions" left in the victim's apartment. On the

first day of trial, the defendant moved to dismiss the

indictments on the ground that the Commonwealth had failed to

provide "exculpatory" evidence in a timely manner. After the

disclosure, the defendant had located an expert who, defense

counsel said, would testify that his analysis would exclude the

defendant as the source of the imprints. The judge denied the

motion, saying that the defendant had not shown that he had been

prejudiced by the late disclosure.
 14

At trial, in his opening statement, defense counsel told

the jury, as he had informed the judge earlier, that his expert

witness would testify that "[h]e specifically excludes Tim Lavin

as the source of that print." However, in the middle of the

trial, the expert recanted and told defense counsel that he no

longer could provide that testimony.12 The defendant then moved

for a mistrial because, as he argued, he had made a promise to

the jury that he no longer could keep. The judge denied the

motion for a mistrial, but also ruled that the Commonwealth

would be precluded from presenting any evidence of footwear

impressions. In addition, the judge gave specific, curative

instructions to the jury in her final charge, saying that she

had excluded all of the evidence relating to the footwear

impressions, that the jurors were to disregard anything they

might have heard regarding footwear impressions, and that they

were not to consider that evidence in any way.13

12Initially, the Commonwealth intended to offer evidence
that footwear impressions obtained at the victim's apartment at
the time of the crimes were "similar to" the soles of the
sneakers that the defendant was wearing when he was arrested.
After receiving the report of the defendant's expert, the
Commonwealth's expert, using a new procedure, had developed
evidence showing that, in fact, the prints were consistent with
the defendant's shoes and were, for that reason, inculpatory.
Defense counsel so informed his expert, who then responded that
"he would not be helpful to the defense."

13After the testimony of Lieutenant Grady, whom the
defendant cross-examined about any "imprints" left by the
intruders' footwear, the judge gave a curative instruction that
 15

"A defendant seeking relief as a result of delayed

disclosure has the burden of showing that he was prejudiced by

the delay." Commonwealth v. Brien, 67 Mass. App. Ct. 309, 310

(2006). "In measuring prejudice, 'it is the consequences of the

delay that matter, not the likely impact of the nondisclosed

evidence.'" Commonwealth v. Almeida, 452 Mass. 601, 609 (2008),

quoting Commonwealth v. Stote, 433 Mass. 19, 23 (2000). "When

confronted with the Commonwealth's failure to comply with its

discovery obligations," a judge is afforded considerable

discretion. Commonwealth v. Fossa, 40 Mass. App. Ct. 563, 567

(1996). Where "there has been disclosure but no evidence of bad

faith, the question becomes whether the defendant had sufficient

time to adjust to the disclosure in shaping and preparing his

defense. . . . See Commonwealth v. Hamilton, 426 Mass. 67, 70

(1997) (denial of motion for two-week continuance not abuse of

discretion where defendant failed to show prejudice by late

disclosure of inculpatory fingerprint evidence)." Commonwealth

v. Lao, 460 Mass. 12, 20 (2011).

We see no abuse of discretion. The defendant does not

allege that the Commonwealth acted in bad faith. The evidence

that was not disclosed until a few weeks before trial was, in

the end, inculpatory, and the Commonwealth was precluded from

she was striking all testimony regarding footwear impressions
and that the jury were to disregard any such testimony.
 16

using it in any way. We are satisfied that the judge's

thoughtful solution, including her curative instructions to the

jury, obviated any possible prejudice to the defendant from the

late discovery or his counsel's unfulfilled promise. See id.

See also L.L. v. Commonwealth, 470 Mass. 169, 184 n.27 (2014).

Contrast Commonwealth v. Chambers, 465 Mass. 520, 534-535 (2013)

(Defendant prejudiced where judge reversed her pretrial ruling

and precluded during trial evidence important to defense without

providing sufficient curative jury instruction).

3. Expert testimony. Lieutenant Grady, testifying as an

expert on latent fingerprint identification, opined that the

fingerprint recovered from the ammunition clip found on the

victim's stairs belonged to the defendant. Describing the

method used to extract the print and identify the defendant,

Grady properly framed his findings in the form of an opinion,

not overstating the match as a certainty; on cross-examination

he clarified that he did not know when the defendant's

thumbprint was "impressed upon the clip." See Commonwealth v.

Fulgiam, 477 Mass. 20, 44-45, cert. denied, 138 S. Ct. 330

(2017).

At the end of Grady's testimony, the prosecutor asked him

whether his findings had been verified by another expert, and he

responded, "Yes." There was no objection. That question should

not have been asked. See id. at 45-46, citing Commonwealth v.
 17

Whitaker, 460 Mass. 409, 421-422 (2011) ("Expert testimony as to

the opinions or conclusions of a second, nontestifying expert

constitutes inadmissible hearsay"). However, any possible

prejudice was cured when the verifying analyst did testify, thus

allowing the defendant an opportunity to cross-examine her.14

See Commonwealth v. Hurley, 455 Mass. 53, 63 (2009) (Although

witness was unavailable, admitting her testimony from pretrial

detention hearing did not violate confrontation clause because

defendant had opportunity to cross-examine witness at earlier

hearing). Here, the defendant concedes that the opportunity for

cross-examination cured any constitutional confrontation issue;

however, he contends that "the hearsay and vouching issues

remained." He cites no authority for that argument, and in any

event, it is clear that any error did not create a substantial

risk of a miscarriage of justice.

4. Closing argument. Finally, the defendant argues that

his motion for a mistrial was wrongly denied, because the

prosecutor in her closing argument made remarks that were

"burden-shifting." The defendant objected to the remarks, and

so we review to determine whether there was error and, if so,

whether that error was prejudicial. See Commonwealth v.

14 The defendant did not cross-examine that expert.
 18

Johnson, 463 Mass. 95, 113-114 (2012). Specifically, the

prosecutor said:

"You've heard the defense say Timothy Lavin didn't
live there. But there was no evidence to the
contradictory [sic].

"Think about what Officer Bossolt said. He went
into the house, nine o'clock in the morning. Went
upstairs. And there's Timothy Lavin in the master
bedroom in bed.

"If Timothy Lavin doesn't live at that house or
doesn't stay at that house, then why is Timothy Lavin
in someone's bed at nine o'clock in the morning? I
suggest to you, based on what you heard, he stayed at
that house." (Emphasis supplied.)

The defendant contends that, with the emphasized phrase above,

the prosecutor shifted the burden to the defendant requiring him

to testify or to present evidence countering the argument.15

"[A] 'prosecutor . . . cannot make statements that shift

the burden of proof from the Commonwealth to the defendant.'"

Johnson, 463 Mass. at 112, quoting Commonwealth v. Amirault, 404

Mass. 221, 240 (1989). "Such burden shifting typically arises

where a prosecutor . . . 'calls the jury's attention to the

defendant's failure to call a witness or witnesses, or . . . "to

contradict testimony."'" Johnson, supra, quoting Commonwealth

v. Tu Trinh, 458 Mass. 776, 787 (2011).

15 We remind lawyers that one way to ensure that they stay
within the bounds of permissible argument during their closing
arguments would be to review the succinct statement of the law
regarding closing arguments found in Mass. G. Evid. § 1113(b)
(2018).
 19

Although the phrase in question would have been better left

unsaid, "we do not find that this transgression falls into the

realm of prejudicial error." Johnson, 463 Mass. at 113. "[T]he

prosecutor did not focus the jury's attention on a specific

element missing from the defense, nor did the prosecutor

otherwise suggest to the jury -- either implicitly or explicitly

-- that the defendant had an affirmative duty to counter the

Commonwealth's evidence against him." Id. A prosecutor is

entitled to argue "the facts in evidence and the reasonable

inferences that may be drawn therefrom." Commonwealth v. Diaz,

478 Mass. 481, 487 (2017).

In addition, the judge twice informed the jury -- once

before and once after the closing arguments -- that closing

arguments are not evidence. In her final charge, the judge

emphasized that the Commonwealth has the burden of proof and

that the "defendant is not required to call any witnesses or

produce any evidence, since he's presumed to be innocent." We

presume the jury followed the judge's instructions. See

Commonwealth v. Andrade, 468 Mass. 543, 549 (2014). After

reviewing the prosecutor's remarks in the context of the whole

argument, together with the evidence admitted at trial and the

judge's instructions to the jury, we are satisfied that there

was no prejudicial error. See Diaz, 478 Mass. at 490.

Judgments affirmed.