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Commonwealth v. Hart

Appeals Court of Massachusetts, Suffolk

July 16, 2018

COMMONWEALTH
v.
LARRY HART

          Heard November 7, 2017.

         Indictments found and returned in the Superior Court Department on March 10, 2014.

         The cases were tried before Elizabeth M. Fahey, J.

          Timothy St. Lawrence for the defendant.

          Houston Armstrong (Teresa K. Anderson, Assistant District Attorney, also present) for the Commonwealth.

          Present: Green, C.J., Rubin, & Sullivan, JJ.

          RUBIN, J.

         In this direct appeal from his convictions of receiving a stolen motor vehicle, subsequent offense, G. L. c. 266, § 28 (a.), and negligent operation of a motor vehicle, G. L. c. 90, § 24(2) (a.), the defendant raises two arguments; whether (1) the trial judge erred in denying his motion for a required finding of not guilty because the Commonwealth produced insufficient evidence of identification, and (2) the judge abused her discretion in denying a motion for mistrial due to juror bias.

         1. Sufficiency.

         The easier question relates to the sufficiency of the evidence. The facts adduced at trial were as follows. On the evening of January 31, 2014, while unloading a dark Buick Enclave sport utility vehicle (SUV) for his employer, witness Shehab Ragab saw a strange man in the driver's seat of the vehicle. Ragab identified the man as dark-skinned, thin, and wearing a white jacket and a dark-colored winter hat. He never saw the man's face. Ragab unsuccessfully attempted to remove the man from the SUV. The man drove off. Ragab called the police at 7:04 P.M. and immediately began to canvass the neighborhood looking for the SUV. He saw the vehicle, attempted to stop it, and was knocked to the ground. The SUV sped away in the direction of a Stop & Shop grocery store. Ragab returned to his place of employment to give a statement to the police when he again saw the SUV. The police pursued it by foot and by car.

         Shortly thereafter, witness Roger Marcon was walking in the neighborhood and saw and heard the SUV stop abruptly on the sidewalk on the Stockwell Street side of Frawley Street, near where he was walking. He continued to walk. Although he did not see anyone get out of the SUV, he looked back and saw the defendant, who is African-American, near the SUV carrying grocery bags from Stop & Shop. The lights were on and the driver's side door was open. The defendant was wearing a dark coat and a dark winter hat, and looked disheveled, frightened, and confused. Marcon saw nobody else near the SUV. When the police arrived, Marcon pointed them toward the defendant, who was then arrested.

         At the scene, a detective conducted a show-up of the defendant with Ragab and Marcon. Ragab was unable to make a positive identification of the defendant, although he stated that the defendant's hat and skin color matched those of the man who stole the SUV.[1] Marcon, however, did make a positive identification with 100 percent confidence. Defense counsel's theory was that the defendant, who lived in the neighborhood, was simply walking home from the Stop & Shop. However, the Commonwealth elicited testimony at trial that the intersection of Frawley Street and Stockwell Street was not on the defendant's most direct route home from Stop & Shop.

         At trial, the Commonwealth introduced in evidence a video recording from the Stop & Shop parking lot. It showed that, at 7:00 £.M., an SUV pulled into the parking lot, a person got out of the vehicle, a person then entered it approximately nine minutes later, and the SUV drove off.

         Notwithstanding the equivocal identification by Ragab, the testimony of Marcon that, immediately upon hearing a vehicle screech to a halt on Frawley Street, he turned and saw the stolen vehicle with its lights on and door open and the defendant standing next to it holding bags of groceries and appearing disheveled, frightened, and confused, when combined with the facts that no other person was anywhere in the vicinity and that the location was not along the most direct walking route from the Stop & Shop to the defendant's house (in contravention of the defendant's claim that he was walking home from Stop & Shop), suffice to support the element of identification with respect to which the defendant claims there is insufficient evidence. To be sure, the record contains no explanation for the fact that the video recording purporting to show the stolen SUV entering the Stop & Shop parking lot was time stamped several minutes before the robbery occurred, rather than afterward. While such circumstances might call into question the relevance of the videotape, the adequacy of its authentication, or whether its probative ...


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