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Commonwealth v. Russell, 46 Mass.App.Ct.
307 (1999)
Appeals Court of Massachusetts, Middlesex.
No. 97‑P‑1959.
Argued
Decided
Further
Appellate Review Denied
Gregory M. Doyle,
Present:
LAURENCE, KAPLAN, & RAPOZA, JJ.
LAURENCE, J.
The sole
issue on appeal is whether a District Court judge properly denied the motion of
the defendant, William Russell, for a required finding of not guilty at the
close of the Commonwealth's case.
(FN1) The Commonwealth had
proceeded against the defendant for violation of an outstanding "no
contact" restraining order, contrary to G.L. c.
209A, § 7, by telephoning his former wife (wife) from his jail cell on December
15, 1996, and by enlisting a third person to place a telephone call to his wife
on that same date. (FN2) The defendant asserts[46 Mass.App.Ct. 308] that the judge erred
because the evidence of his guilt was entirely circumstantial; because there was "no actual proof"
that he was responsible for the December 15 call by the third person; and because the evidence was equally
susceptible of an explanation consistent with his innocence. We agree with the Commonwealth that the judge
did not err and that the evidence offered by the Commonwealth was sufficient to
persuade a rational jury beyond a reasonable doubt of the existence of every
element of the crime charged.
Although
the defendant makes a cursory bow to the principle of review applicable to his
situation‑‑that we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth,
see Commonwealth v. Latimore,
378 Mass. 671, 676‑677, 393 N.E.2d 370 (1979); Commonwealth v. Bennett,
424 Mass. 64, 68, 674 N.E.2d 237 (1997); Commonwealth v. Rivera, 425 Mass. 633,
648, 682 N.E.2d 636 (1997)‑‑his contentions fail to reflect or
appreciate the breadth of this fundamental concept:
" '[The] question is
whether, after viewing the evidence [and all permissible inferences] in the
light most favorable to the prosecution,
any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979),
quoting Jackson v. Virginia, 443 U.S.
307, 318‑319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). See Mass. R.Crim. P. 25(a),
378 Mass. 896 (1979). The question of
guilt cannot be left to conjecture or surmise. Commonwealth v. Anderson,
396 Mass. 306, 312, 486 N.E.2d 19 (1985).
Mere opportunity to commit the crime or presence at the scene is
insufficient without other evidence. Commonwealth v. Cordle,
404 Mass. 733, 742, 537 N.E.2d 130 (1989), and cases cited. However, circumstantial evidence is competent
to establish guilt beyond a reasonable doubt. Commonwealth v. Nadworny, 396 Mass. 342, 354, 486 N.E.2d 675 (1985),
cert. denied, 477 U.S. 904, 106 S.Ct. 3274, 91
L.Ed.2d 564 (1986). An inference drawn
from circumstantial evidence 'need only be reasonable and possible;
it need not be necessary or
inescapable.' Commonwealth v. Beckett, 373 Mass. 329,
341, 366 N.E.2d 1252 (1977)."
[46 Mass.App.Ct.
309] Emphasis original.)
Commonwealth v. Gilbert, 423 Mass. 863, 868, 673 N.E.2d 46 (1996).
[1][2][3]
Moreover, the evidence and the permissible inferences therefrom
need only be sufficient to persuade "minds of ordinary intelligence and
sagacity" of the defendant's guilt. Commonwealth v. Latimore,
378 Mass. at 677, 393 N.E.2d 370. Fact
finders are not "required to divorce themselves of common sense, but
rather should apply to facts which they find proven such reasonable inferences
as are justified in the light of their experience as to the natural
inclinations of human beings." Commonwealth v. Arias, 29 Mass.App.Ct. 613, 618, 563 N.E.2d 1379 (1990), quoting from United States v. Smith, 680 F.2d 255,
260 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct.
738, 74 L.Ed.2d 960 (1983). To the
extent that conflicting inferences are possible from the evidence, it is for
the fact finder to resolve the conflict. Commonwealth v. Wilborne,
382 Mass. 241, 245, 415 N.E.2d 192 (1981).
[4]
The jury could reasonably have found the following facts under these
standards: On December 12, 1996, the defendant's
wife applied for and received a restraining order against the defendant
commanding him to have no contact with her either directly or indirectly for
one year. As of December 15, 1996, the
defendant had received knowledge of the contents of the order. On December 15, 1996, the defendant was
confined in the Bravo South 1 unit of the Plymouth County Correctional
Facility. (FN3) The facility's records showed that on
December 15, 1996, four collect telephone calls were made to the wife's number
at her home in Cambridge by someone in the Bravo South 1 unit. (Prisoners there were allowed to make
telephone calls.) The wife had never
received collect calls in the past from anyone but the defendant, and she
accepted none of the December 15 calls.
At approximately 5:45 P.M. on December 15, the wife received a telephone
call at her home from a person whose voice she did not recognize. The caller said he was a friend of the
defendant (referring to the defendant by his nickname, "Butchie") and asked the wife if the defendant could
call her collect. The wife responded
that she would call the police, hung up the phone, then called the police. On December 19, 1996, the defendant was
transferred to a unit at the Plymouth County Correctional facility designated
"Pod E3." On [46 Mass.App.Ct.
310] December 26, 1996, a call was
made to the wife's home phone from Pod E3.
[5][6]
This circumstantial evidence against the defendant and the reasonable
inferences therefrom, while not overwhelming,
provided a satisfactory basis for a rational trier of
fact to find the most critical element of the crime charged‑‑the
defendant's violation of the no contact restraining order directly or through
another beyond a reasonable doubt.
(FN4) The Latimore standard, as described above,
was satisfied here. See Gelmette v.
Commonwealth, 426 Mass. 1003, 1003‑1004, 686 N.E.2d 198 (1997). "A web of convincing proof [sufficient
to find guilt beyond a reasonable doubt] can be made up of inferences that are
probable, not necessary." Commonwealth v. Best, 381 Mass. 472, 483,
411 N.E.2d 442 (1980). The possibility
of raising conflicting inferences from the evidence does not preclude allowing
the fact finder to determine where the truth lies. Commonwealth v. Martino,
412 Mass. 267, 272, 588 N.E.2d 651 (1992).
(FN5)
The
jury, properly charged to draw "reasonable and natural" inferences
from the evidence "based on [their] common sense and experience of
life," see Commonwealth v. Arias,
29 Mass.App.Ct. at 618, 563 N.E.2d 1379, would not
have had to resort to speculation or
irrational thinking to find the defendant responsible for the four December 15
calls made to the wife from Bravo South 1 and for procuring the December 15
call to the wife made by the unknown caller, who had essentially sought to
induce her, on the defendant's behalf, to accept his collect calls which she
had hitherto rejected. See Commonwealth v. Collier, 427 Mass. 385,
389, 693 N.E.2d 673 (1998) (when it is claimed that a third party committed an
act that would have violated c. 209A, § 7, if committed by the defendant, there
must be proof that the defendant intended the act that resulted in the
violation, but such proof may consist of reasonable and possible inferences
drawn from circumstantial evidence).
[7]
Although the defendant implicitly invokes a familiar maxim (that "[w]hen
the evidence tends equally to sustain either of two inconsistent propositions,
neither of them can be said to be [46
Mass.App.Ct. 311]
established by legitimate proof," see
Commonwealth v. Eramo, 377 Mass. 912, 913, 387
N.E.2d 558 [1979] ), (FN6) that principle finds no application here, because
the evidence and inferences were not as equally probative of innocence as of
guilt. See Commonwealth v. Latney, 44 Mass.App.Ct. 423, 425‑426, 691 N.E.2d 601
(1998). In particular, the conjectured
exculpatory inferences‑‑(a) that some unknown and unidentifiable
person who happened to be residing in the very jail unit in which the defendant
was incarcerated would know the wife's home number and proceed to make multiple
collect calls to her, for no apparent reason and coincidentally on the heels of
the defendant's learning of the restraining order; and (b) that someone outside the jail would
call the wife purportedly on the defendant's behalf but actually motivated by
an inexplicable desire to get him into trouble‑‑were, in the
ordinary course of events and in light of natural human inclinations, far less
compelling or even plausible than the common sense deduction that the defendant
himself had made the collect calls to the wife and then instigated the third
person's call to her in the wake of her apparent rejection of his contact or nonresponsiveness to it.
[8][9]
Moreover, contrary to the defendant's intimation, the Commonwealth's proof in a
criminal trial need not exclude all possible exculpatory interpretations of the
evidence. See Commonwealth v. Merola, 405 Mass. 529,
533‑534, 542 N.E.2d 249 (1989).
Nor is it necessary for the Commonwealth to negate the possibility that
someone else other than the defendant might have committed the crime
charged. See Commonwealth v. Medeiros, 354 Mass. 193, 197, 236 N.E.2d 642
(1968);
Commonwealth v. Casale, 381 Mass. 167, 175‑176,
408 N.E.2d 841 (1980).
In
this case, the fact finders did not have to make a leap of wild surmise with
respect to the essential element at issue.
There was no evidentiary gap in the Commonwealth's case, merely a
question of the weight to be accorded to a chain of circumstantial evidence logically,
even if not infallibly, connecting the defendant to the offenses charged. See
Commonwealth v. Donovan, 395 Mass. 20, 25, 478 N.E.2d 727 (1985). While the jury would [46 Mass.App.Ct. 312] have been entitled to reject the Commonwealth's theory, its case
was properly submitted to them for consideration and rationally supported
conviction beyond a reasonable doubt.
Judgment affirmed.
(FN1.) The defendant did not offer any
evidence, and the case went to the jury after the denial of the motion for a
required finding.
(FN2.) The defendant was charged with two
counts of violation of a restraining order that the wife had applied for and
received, pursuant to G.L. c. 209A, against the
defendant on December 12, 1996. Count A
of the complaint alleged a violation on December 12, 1996, and count B alleged
a violation on December 15, 1996. The
counts did not particularize the nature or means of the offenses. The judge allowed the defendant's motion for
a required finding of not guilty at the close of the Commonwealth's case as to
count A, on the ground that the Commonwealth had failed to establish the
defendant's knowledge of the terms of the restraining order at the time of the
alleged December 12 incident.
(FN3.) The defendant was incarcerated there
from December 12 through December 18, 1996.
The reason for his incarceration is not contained in the record, but the
charges appear to have been unrelated to his domestic situation.
(FN4.) The other elements of the offense‑‑the
issuance and contents of the order, its effectiveness on December 15, 1996, and
the defendant's knowledge thereof‑‑were established and not
disputed as to the December 15 incident.
(FN5.) The defendant in fact concedes that
"one possible hypothesis [arising from the evidence] is that the defendant
used the caller to contact the alleged victim" on December 15.
(FN6.) As noted above, the defendant asserts
(citing no authority) that "while one possible hypothesis is that the
defendant used the caller to contact the alleged victim, it is just as likely
and reasonable to assume it was someone who wanted the defendant in
trouble." No evidence supporting
this speculative assumption appears in the record. The defendant makes no such argument as to
the four collect calls made to the wife on December 15, 1996, from the very unit
in which he was then incarcerated.