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Commonwealth v. Lavin

Appeals Court of Massachusetts, Worcester

October 30, 2018

COMMONWEALTH
v.
TIMOTHY LAVIN.

          Heard: March 12, 2018

         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.

          Present: Vuono, Hanlon, & Wendlandt, JJ.

          HANLON, J.

         After a jury trial, the defendant waS.C.nvicted of armed robbery while masked, in violation of G. L. c. 265, &S.C.; 17; home invasion, G. L. c. 265, &S.C.; 18C; assault and battery, G. L. c. 265, &S.C.; 13A (a.); possession of ammunition without a firearm identification card, G. L. c. 269, &S.C.; 10 (h); and impersonating a police officer, G. L. c. 268, &S.C.; 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, &S.C.; 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 proS.C.tor'S.C.osing 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 S.C.nd-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 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 phyS.C.l 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 defendant[4]; the victim described him as the largest of the three. 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 ranS.C.ed 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. 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.C.rrying 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.

         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]

         During their investigation, police officers recovered the ammunition clip from the stairs to the victim's S.C.nd-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 and one from a zip tie found in the victim's apartment. After processing the fingerprints, Grady matched a fingerprint ...


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