Commonwealth v. Brule

Decision Date22 July 2020
Docket NumberNo. 19-P-30,19-P-30
Citation98 Mass.App.Ct. 89,151 N.E.3d 925
Parties COMMONWEALTH v. Jesse BRULE.
CourtAppeals Court of Massachusetts

Kevin P. DeMello for the defendant.

Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.

Present: Rubin, Wolohojian, & Henry, JJ.

HENRY, J.

This case presents the question whether the defendant's conviction of assault and battery by means of a dangerous weapon causing serious bodily injury in violation of G. L. c. 265, § 15A (c ) (i), is duplicative of his conviction of assault and battery by discharge of a firearm in violation of G. L. c. 265, § 15E (a ), where both convictions were based on a single discharge of a firearm that caused the victim serious bodily injury.1 On appeal, the defendant claims that the two assault and battery convictions are duplicative, and further argues that the judge erred by permitting the Commonwealth to introduce evidence of the circumstances of his arrest in Rhode Island for possession of a firearm, and by denying his request to receive credit against his sentences for the time he spent incarcerated in Rhode Island. We affirm.

Background. The jury could have found the following facts. In the early morning hours of August 5, 2016, the victim, Angelo Patino, saw three people -- including the defendant -- looking into cars on parked on the street where Patino lived. When the three people approached Patino's car, he woke his friend, Daniel Smith, and they went outside.

Patino and Smith tried to talk to the people. The defendant fled, and Patino and Smith gave chase, first on foot and then by car. When the two caught up with the defendant, he pointed a gun at them and told them to get out of the car, which they did. The defendant then extended his arm and pointed the gun at Smith. Patino ran toward the defendant to try to take the gun away, at which point the defendant shot him in the right shoulder area. Surveillance video footage captured this encounter and showed white flashing coming from Patino's hand as he ran toward the defendant.2 After Patino had been shot, he then wrestled with the defendant on the ground to try to take possession of the gun. The defendant ended up on top of Patino and shot him in the chest before running away. Smith drove Patino to the hospital. The parties stipulated that Patino had two bullet hole entry wounds and two bullet hole exit wounds. Smith then brought a police officer to the scene of the shooting, where two spent .45 caliber shell casings stamped with "W-W," a spent projectile, and the defendant's passport were found.

The Commonwealth presented evidence that approximately two weeks after the shooting, the defendant was arrested in Rhode Island. A Pawtucket, Rhode Island police officer testified that he responded to a call from a homeowner in "one of the nicer" residential neighborhoods in Pawtucket around 11 P.M. on August 22, 2016, and encountered the defendant. The defendant appeared "uneasy" and seemed to the officer like he was "trying to look for a way to get away." The Pawtucket officer performed a Terry-type frisk "[d]ue to [the defendant's] inconsistency in his story, where he was coming and going, and his actions," and located a black Glock 21, generation 4, .45 caliber firearm in the defendant's waistband. This firearm was "consistent with" the .45 caliber shell casings found at the shooting scene. After his arrest, the defendant remained in custody in Rhode Island until his transfer to Massachusetts.

Discussion. 1. Evidence related to the defendant's arrest in Rhode Island. a. Admission of detailed testimony. The defendant first asserts that the judge erred in admitting testimony that officers responded to a call from a homeowner in a "really nice residential area," in Pawtucket, Rhode Island, and arrested the defendant upon finding him in the area and in possession of the Glock firearm. The defendant argues that this testimony cast him as a suspect for an unrelated, yet similar, burglary crime in Rhode Island and was unfairly prejudicial. The defendant objected to the testimony, and the judge overruled the objection without explanation. Accordingly, we examine the record to determine whether its admission constituted prejudicial error. Stated differently, we must ensure that the error "did not influence the jury, or had but very slight effect." Commonwealth v. Niemic, 483 Mass. 571, 580 n.14, 134 N.E.3d 1107 (2019), quoting Commonwealth v. Canty, 466 Mass. 535, 545, 998 N.E.2d 322 (2013).

Even if we assume that the judge should not have admitted this testimony, reversal of the convictions is not warranted. The jury also heard testimony that the victim saw the defendant looking through cars on the victim's street in the middle of the night with a flashlight, duffle bag, and backpack. Given this other evidence, the testimony about the defendant's presence in a nicer neighborhood in Rhode Island and his uneasiness during his encounter with the police two weeks after he shot the victim had little, if any, influence over any conclusions the jury might have drawn about the defendant's activities leading up to the confrontation with and shooting of the victim. It is undisputed the victim was shot, and the identity of the defendant was not in dispute. There was, therefore, no prejudicial error.

b. Lawfulness of frisk. The defendant next challenges the lawfulness of the patfrisk conducted by the Pawtucket police officer, arguing that the firearm found on the defendant should be excluded. See Commonwealth v. Narcisse, 457 Mass. 1, 6-7, 927 N.E.2d 439 (2010), citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because the defendant failed to raise this issue in a pretrial motion to suppress, he has waived the argument. Although we review unpreserved claims of error to determine whether there was a substantial risk of a miscarriage of justice, because the factual record was undeveloped at trial, any claim of error should have been brought first in a motion for a new trial. See Commonwealth v. Dew, 478 Mass. 304, 309-310, 85 N.E.3d 22 (2017). In this case, the record does not permit such review of this waived issue; defense counsel not only failed to raise the issue below but also conceded that the officer acted in accordance with proper procedure. Where the Commonwealth was not put on notice of the need to present any evidence on this issue at trial, we must "decline to reach the merits of the issue raised for the first time on appeal because it depends on the development of facts not in the record before us." Commonwealth v. Santos, 95 Mass. App. Ct. 791, 798, 132 N.E.3d 118 (2019).

2. Credit for time served. The defendant next contends that he should receive credit for the 290 days he spent in custody in Rhode Island before being transferred to Massachusetts to avoid serving "dead time" not credited to any sentence. See Commonwealth v. Milton, 427 Mass. 18, 24, 690 N.E.2d 1232 (1998). The Rhode Island charges have remained outstanding for over two years with no attempt to prosecute them.

Generally, to avoid "dead time" where different offenses are separately charged, "[f]airness requires that a prisoner not be penalized or burdened by a denial of credit because he has been acquitted or because the prosecutor has seen fit not to go forward on the [unrelated] charges." Commonwealth v. Foley, 17 Mass. App. Ct. 238, 243-244, 457 N.E.2d 654 (1983), overruled on other grounds, Commonwealth v. Amirault, 415 Mass. 112, 117 n.9, 612 N.E.2d 631 (1993). Here, however, the charges are still pending in Rhode Island. Therefore, the time served is not "dead time," at least not yet, and we decline to speculate as to whether the Rhode Island charges will be prosecuted or whether the defendant will be convicted of an offense in that State. On this record, the trial judge properly declined to award credit for the time spent in custody in Rhode Island.

3. Duplicative convictions. The defendant contends that his convictions of (1) assault and battery by discharge of a firearm (AB-DFA), in violation of G. L. c. 265, § 15E (a ), and (2) assault and battery with a dangerous weapon causing serious bodily injury (ABDW-SBI), in violation of G. L. c. 265, § 15A (c ) (i), are duplicative, and the judgment on the charge of AB-DFA should be vacated and that verdict should be set aside. Whether two different crimes are duplicative is a legal question, and our review is de novo. See Commonwealth v. Rodriguez, 476 Mass. 367, 369, 68 N.E.3d 635 (2017). The defendant preserved the issue.

In this case, the Commonwealth does not dispute that the two convictions were based on a single discharge of a firearm.3 A defendant may be punished for two crimes arising out of the same conduct so long as each crime requires proof of an element that the other does not. See Commonwealth v. Vick, 454 Mass. 418, 431, 910 N.E.2d 339 (2009) ; Morey v. Commonwealth, 108 Mass. 433, 434 (1871). Under this elements test, "[a]s long as each offense requires proof of an additional element that the other does not, neither crime is a lesser-included offense of the other, and convictions [of] both are deemed to have been authorized by the Legislature and hence not [duplicative]" (quotation and citation omitted). Vick, supra. "[W]e consider only the elements of the crimes, not the facts to be proved or the evidence adducted to prove them" (citation omitted). Id.

ABDW-SBI "requires the Commonwealth to prove [ (1) ] that the defendant intentionally touched the victim, however slightly; [ (2) ] the touching was unjustified; [ (3) ] the touching was done with an inherently dangerous weapon or an object used in a dangerous fashion; and [ (4) ] the touching caused serious bodily injury." Vick, 454 Mass. at 432, 910 N.E.2d 339. No case has enumerated the elements of AB-DFA in violation of G. L. c. 265, § 15E (a ), which became effective on January 1, 2015. Based on the statutory language, the elements are (1...

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