Com. v. Ali

• Decision Date: 26 September 1997
• Docket Number: No. 96-P-727,96-P-727
• Citation: 684 N.E.2d 1200,43 Mass.App.Ct. 549
• Parties: COMMONWEALTH v. Salahuddin ALI (and two companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 1200

684 N.E.2d 1200

43 Mass.App.Ct. 549

COMMONWEALTH v. Salahuddin ALI (and two companion cases ¹).

No. 96-P-727.

Appeals Court of Massachusetts,

Barnstable.

Argued June 4, 1997.

Decided Sept. 26, 1997.

Carlo Obligato, Boston, for Salahuddin Ali.

Richard N. Foley, Portsmouth, NH, for Anthony J. Rose, Jr.

James H. Budreau, Boston, for Myles P. Miranda.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

Before WARNER, C.J., and JACOBS and LENK, JJ.

WARNER, Chief Justice.

Salahuddin Ali, Myles Miranda, and Anthony J. Rose were convicted by a jury of armed robbery while masked. Ali and Miranda received life terms at the Massachusetts Correctional Institution at Cedar Junction (M.C.I., Cedar Junction), Ali's term to be served from and after any sentence presently being served. Rose received a sentence of from twelve to eighteen years at M.C.I., Cedar Junction.

The defendants raise the following issues on appeal: (1) whether the grand jury proceedings were tainted because the prosecution failed to present exculpatory evidence and presented inadmissible prejudicial evidence; (2) whether the trial judge should have asked the prospective jury venire if they had heard a statement made by another prospective juror; (3) whether the trial judge erred in admitting Miranda's hearsay statements implicating Ali and Rose; (4) whether Rose's motion to sever should have been allowed ²; (5) whether the trial judge failed to instruct the jury correctly concerning evidence of Ali's fingerprints; (6) whether defense counsel's failure to object to the introduction of certain evidence against Miranda constituted ineffective assistance; (7) whether the trial judge made a proper inquiry of the jurors regarding their exposure to trial publicity. We affirm the convictions.

The jury could have found the following facts. Further details will be discussed in conjunction with the relevant issues.

The robbery. On September 25, 1993, at approximately 10:30 in the morning, a noisy red-orange dirt bike approached the Plymouth Savings Bank in Cotuit. The driver was dressed in black and wore a full-faced red motorcycle helmet which left only his eyes showing. A passenger, also dressed in black and wearing black gloves, dismounted, rolled down a black ski mask, pulled out what appeared to be a gun, and entered the bank. The dirt bike circled outside.

Inside, the robber brandished the "gun," described by eyewitnesses as a black and silver colored automatic, ordered everyone to the floor, vaulted the counter, and told the bank's manager to empty the cash drawers into a bag he produced. He then ordered the manager onto the floor, and went into her office, where a window was later found broken. ³ He left the bank through the front door and escaped on the dirt bike. The thieves got away with approximately $5,900. Another $530 was recovered inside the bank and outside the broken window of the manager's office.

A knife and a lighter in the shape of an automatic handgun were found on the floor of the bank manager's office. Three pieces of black electrical tape were attached to the gun shaped lighter. Once the tape was removed and the cover opened, two fingerprints were recovered, one each on the left and right sides of the barrel. They matched the prints on Ali's left thumb and index finger. The dirt bike was recovered within an hour of the robbery in a densely wooded, unpaved area approximately fifty yards from the Cotuit water tower. Tire tracks were found nearby.

Eleven eyewitnesses, some of whom caught only short glimpses of the robbers, testified. None could make a positive identification. Only one witness, who was in the bank's parking lot when the thieves arrived, saw the face of the robber who entered the bank before he pulled down his mask. She testified that he was black, about five foot six or seven, seventeen or nineteen years old, slender, with black hair. She further testified that the driver, also black, had very dark, almond shaped eyes, and was also young.

Several other witnesses estimated that the thief who entered the bank was between five foot five and five foot nine, and of stocky build. The robbers were described as agile, and from this two witnesses concluded that they were young. ⁴

During the robbery, the bank manager had withdrawn cash from a drawer containing "bait money" which activated an alarm when removed. Covering the bait money were thirty-six two dollar bills, a denomination ordinarily disbursed only upon request. Ali was seen carrying seven or eight two dollar bills within two weeks of the robbery.

Events preceding the robbery. On September 10, 1993, approximately two weeks before the robbery, Miranda moved into a house in Marstons Mills with Lori Klein, the Commonwealth's major witness, and her teen-aged son, Brian Mederois. Several days later, Rose brought over a green dirt bike, which was kept in the basement. Brian heard Rose say that he had stolen it. The bike broke down, and Rose's younger brother, Manny Lopes tried to help fixing it. During this period, according to Klein, Ali came to the house approximately a dozen times and Rose even more frequently. Klein and Brian were frequently admonished to stay out of the basement while the men were there. Klein testified that all three defendants were present during two or three of the half dozen times she was told to stay out of the basement; Rose, Miranda, and Manny Lopes were there on the other occasions.

According to Brian, Manny Lopes brought a red bike to the house several days before the robbery. ⁵ When Klein went down to the basement during this period, she saw the green bike, which had been taken apart, along with tools and black work gloves. She also saw the red-orange dirt bike which she later recognized in a newspaper photograph as the bike that had been used in the bank robbery. ⁶

Klein saw Rose driving the red-orange dirt bike approximately ten times, wearing a full-faced red motorcycle helmet. On the Thursday before the Saturday robbery, Ali and Miranda drove off in Klein's car. Rose tried to start the dirt bike, but had to change a spark plug and left about ten minutes after Ali and Miranda. He appeared anxious, and asked Klein how much time had elapsed since the others had left.

A day or two before the robbery, probably Friday, at dusk, Miranda's neighbor saw a motorcycle drive out of Miranda's lot. The driver was black, and, therefore, not Klein's son, Brian. The neighbor then saw Miranda drive down the road in Klein's car, a silver gray Nissan. He asked Miranda which way the motorcycle was going, since he was going horseback riding and wanted to avoid it. Miranda told him that they "were just going for a ride."

That Friday evening, at about five o'clock or earlier, Melvin Dishman, who was riding his dirt bike under the Cotuit power lines, saw a dirt bike on the same trail. He recognized it as the bike he had seen offered for sale at Paul Mardirosian's house. The rider was thin and wore a full-faced helmet. A silver compact car was parked on the trail underneath the water tower, an area where it was unusual to see an automobile. Miranda was leaning on the car. After the robbery, Dishman saw a newspaper photograph of the bike used in the robbery and recognized it as the bike he had seen that night.

Miranda and Rose returned to Miranda's home that evening, then left again with Klein to go to the home of Rose's girlfriend, Cheryl Gomes, in South Dennis, where Rose frequently spent the night. En route, they stopped at a Radio Shack store in Hyannis where Rose stole two sets of headphones with speakers on them. Rose and Miranda then stole batteries for the headphones at a pharmacy. They tested the headphones during the remainder of the trip to see if sounds were clear and to ascertain whether conversations could be picked up on the car radio. On certain roads, Miranda drove with the headlights off.

At Gomes's house, Miranda and Rose got out of the car and continued testing the headphones to ascertain the range from which they could hear each other. After a while, they decided that the range was insufficient. They left the headphones in the trunk of Klein's car, and she eventually turned them over to the Barnstable police.

Klein, Miranda, Rose, and Gomes went to a local bar that evening. Gomes and Klein testified that Miranda and Rose argued because Rose wanted to remain in Dennis with Gomes, while Miranda wanted him to return with them to Marstons Mills. Miranda was upset with Rose and told him not to stay the night because they had something to do that morning with Ali, they had to be up early, and Ali would be angry. Miranda said they were meeting at approximately seven o'clock, and Rose said that he would be up early. Rose and Gomes were dropped off at Gomes's apartment. A telephone call was made from the Gomes residence to the Ali residence at nine-fifty that evening. Klein testified that after she and Miranda returned home, Miranda telephoned Rose between eleven-thirty and twelve-thirty. ⁷

At six-seventeen the next morning, the day of the robbery, the Miranda residence received a call from the Ali residence. Miranda got up, dressed, and, Klein testified, telephoned Rose. ⁸ Miranda, who ordinarily got up at noon, left shortly after the phone calls. Klein did not see him until close to noon. ⁹

Rose left Gomes's house at approximately six-thirty the morning of the robbery, dressed in a black sweatshirt and jeans, and told Gomes he had to meet a cousin. Both Miranda and Ali are Rose's cousins. Klein testified that she saw Rose at her house a number of times that day, the first time before eleven-thirty in the morning. She heard the dirt bike running that morning.

Events following the robbery. Rose returned to Gomes's house at approximately twelve-thirty in the afternoon wearing different clothing. He told Gomes that he had left the clothes he had worn earlier at Miranda's house. Klein testified...