Commonwealth v. Lavin

Decision Date23 June 2022
Docket Numbers. 18-P-1652 & 18-P-1653.
Citation101 Mass.App.Ct. 278,191 N.E.3d 293
Parties COMMONWEALTH v. Timothy M. LAVIN (and ten companion cases ).
CourtAppeals Court of Massachusetts

Justin Drechsler, Cambridge, for Timothy M. Lavin.

MarySita Miles, Boston, for Nicholas Desiderio.

Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth.

Present: Meade, Rubin, Wolohojian, Sacks, & Ditkoff, JJ.2

SACKS, J.

The defendants, Timothy M. Lavin and Nicholas Desiderio, appeal from convictions, after a Superior Court jury trial, of armed home invasion, G. L. c. 265, § 18C ; and three counts each of armed and masked robbery, G. L. c. 265, § 17. Lavin also appeals from convictions of unlawfully carrying a firearm, G. L. c. 269, § 10 (a ), as an armed career criminal, G. L. c. 269, § 10G (c ) ; unlawful possession of ammunition, G. L. c. 269, § 10 (h ) (1), as an armed career criminal; and operating a motor vehicle after a suspension, G. L. c. 90, § 23, and from the order denying their motion for a new trial. The trial judge failed to instruct the jury that the Commonwealth had to prove that Desiderio, the alleged driver of the getaway car, knew that his coventurers were armed and masked. Applying the Supreme Judicial Court's decision in Commonwealth v. Silvelo, 486 Mass. 13, 154 N.E.3d 904 (2020), we conclude that this omission created a substantial risk of a miscarriage of justice, because the evidence against Desiderio, although sufficient, was not " ‘so overwhelming’ that ‘there is no likelihood that the omitted instruction materially influenced the jury's verdict[ ].’ " Id. at 18, 154 N.E.3d 904, quoting Commonwealth v. Lutskov, 480 Mass. 575, 581, 106 N.E.3d 632 (2018).

We further conclude that the judge who considered the defendantsmotion for a new trial (this was a judge other than the trial judge) did not err in denying that motion, which sought inquiry of a juror, where a witness friendly to Lavin stated after trial that one of the jurors was an umpire in a softball league in which the witness and Lavin had played. We also conclude that the trial judge acted within his discretion in admitting a State trooper's testimony about cell site location information (CSLI) evidence, at least as the trooper qualified it. Finally, we conclude that the trial judge properly denied the defendants’ various motions to suppress evidence obtained from searches conducted pursuant to search warrants of Lavin's home and for both defendants’ CSLI data. We affirm Lavin's convictions. As to Desiderio, because of the instructional error, we vacate the judgment of conviction of home invasion and set aside the verdict; we reduce his three convictions of armed robbery to unarmed robbery and remand for resentencing on those convictions.

Background. The primary victim (victim) met Desiderio, who was romantically involved with the victim's first cousin's daughter, sometime in 2009 or earlier. The victim hired Desiderio to work for him in the home repair business, which Desiderio did for three years with great success. In 2012, Desiderio left for another job in the same field. Because of the family relationship, Desiderio "was like a family member." He frequently came to the victim's house, and he assisted the victim in installing a safe hidden behind a picture in that house.

Around the time that Desiderio left the victim's employ, the victim purchased a second house in Leicester. At the victim's suggestion, Desiderio and the victim's cousin lived in the house in exchange for Desiderio's assistance in remodeling it. In summer 2013, the victim sold the remodeled house and asked Desiderio to leave. Desiderio refused to leave and, indeed, came to the victim's home and said, "If you weren't such an old, you know, SOB, I'd kick the shit out of you." After the victim retained counsel, Desiderio eventually agreed to leave. He expressed to his new boss that he felt that the victim had shortchanged him.

On January 5, 2014, at some point after 9 P.M. , two men wearing black face masks entered the victim's home. The men entered the victim's daughter's bedroom, one carrying a handgun, and the other carrying a ten- to twelve-inch crowbar, zip ties, and duct tape.3 They tied the daughter's boyfriend's hands with a zip tie and gagged him with duct tape. They had only two zip ties,4 so they whispered to each other and then one said, "Just go duct tape her." Then they duct taped the daughter's wrists and mouth.

The men asked the daughter where her father was and left for his bedroom before she could answer. They did not ask where her mother was, suggesting that they were aware that her mother would not be in the house.

The intruders woke the victim and tied his wrists with a zip tie. They brought him to the safe. They had already removed the picture hiding it. The intruders forced the victim to open the safe and took $50,000 in cash and a significant amount of jewelry.

The men deposited the victim with his daughter and asked whether there was any more money or if there were any drugs in the house. Then they searched through some drawers and the mattresses. Before leaving the premises, the masked men took the residents’ and boyfriend's cell phones with them. As they left, the gunman smacked the daughter on the buttocks and said, "Thanks for being a good sport."5

The boyfriend freed himself and saw the two men run from the house to a waiting motor vehicle. The two men got into the front passenger seat and rear passenger seat of the vehicle, and then the vehicle drove away. The boyfriend called the police at 9:52 P.M.

On the night of the home invasion, there were three cell phone calls from Lavin to Desiderio between 9:09 P.M. and 9:48 P.M. and a text message from Lavin to Desiderio around 9:33 P.M. All three calls were handled, both for Lavin and Desiderio, by the same cell phone tower, which was less than one mile from the victim's home.

Lavin had problems with drug use and was generally short of money. Nonetheless, in mid-January 2014, he bought an expensive gaming system for his son. On January 16, 2014, Lavin purchased a used BMW motor vehicle for $3,700 in cash. He registered the vehicle to Gerald Bates, a longtime friend.6 Bates had known Lavin for twenty years.

On January 22, 2014, Lavin was arrested for operating the BMW with a suspended license. Lavin admitted to driving with a suspended license.7 Desiderio drove his girlfriend to the police station, where she provided cash to bail out Lavin. Desiderio later admitted that he had paid the bail. Desiderio admitted to knowing Lavin for twelve to thirteen years prior to 2014.

On January 30, 2014, police officers searched Lavin's home pursuant to a search warrant. They found a mask in Lavin's closet. They discovered jewelry, coins, and a large amount of cash in Lavin's safes. The victim and the daughter identified the victim's high school graduation ring, his wedding ring, his late wife's watch and rings, and various other pieces of jewelry belonging to the family among the items retrieved from the safes. The police also found a handgun in a bag in Lavin's basement. The victim's father's World War II medals were never recovered.

The defendants were tried together and both defendants were convicted of armed home invasion and three counts each of armed and masked robbery. Lavin was also convicted of operating a motor vehicle with a suspended license, unlawfully carrying a firearm, and unlawful possession of ammunition. Lavin then pleaded guilty to the armed career criminal enhancements. These appeals followed. The defendants also appeal from the order, by a judge other than the trial judge, denying their joint motion for a new trial, which was based on a claim of juror bias.

Discussion. 1. Sufficiency of the evidence of Desiderio's guilt. In reviewing the sufficiency of the evidence, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133, 99 N.E.3d 821 (2018), quoting Commonwealth v. Oberle, 476 Mass. 539, 547, 69 N.E.3d 993 (2017). "The inferences that support a conviction need only be reasonable and possible; [they] need not be necessary or inescapable" (quotation and citation omitted). Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303, 58 N.E.3d 1070 (2016). "To support a conviction on the charge of armed robbery while masked, the Commonwealth, proceeding on a joint venture theory of the defendant's guilt, had the burden of proving that the defendant knew that the principal perpetrators of the robbery ... would be both armed and masked." Commonwealth v. Quinones, 78 Mass. App. Ct. 215, 219, 936 N.E.2d 436 (2010).

There was sufficient evidence that Desiderio aided and abetted the two intruders by helping them plan the robbery and by acting as the getaway driver. The two masked men had considerable inside information about the victim's house. They located the hidden safe without having to ask the victim about it. They asked the daughter about her father, but not her mother, suggesting they knew that the mother was not in the house. They had brought two zip ties, evidencing that they expected two residents to be present. They seemed surprised by the unexpected presence of the daughter's boyfriend, forcing them to use duct tape for the daughter's wrists. All of this information reflected knowledge that Desiderio had obtained or inferably obtained through his relationship with the victim's family and his assistance in installing the safe. See Commonwealth v. Palmer, 59 Mass. App. Ct. 415, 421, 796 N.E.2d 423 (2003) ("familiarity with the layout and operation of the store which was likely provided by insiders" contributed to sufficiency of evidence that defendant, whose friends worked at store, was involved in armed robbery).

Furthermore, Desiderio had a motive to rob the...

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2 cases
  • Commonwealth v. Morrison
    • United States
    • Appeals Court of Massachusetts
    • 11 Septiembre 2023
    ... ... I would vacate the judgment on the aggravated kidnapping ... offense and remand for entry of judgment on the lesser ... included offense of kidnapping, see G. L. c. 265, § 26, ... first par., and for sentencing on that offense. [ 11 ] See ... Commonwealth v. Lavin , 101 Mass.App.Ct. 278, 301 ... n.28 (2022), S.C., 491 Mass. 809 (2023) ... --------- ... Notes: ... [ 1 ] The defendant consented to proceeding ... on the conspiracy indictment with the underlying ... indictments ... [ 2 ] Feeney was convicted of ... ...
  • Commonwealth v. Joyce
    • United States
    • Appeals Court of Massachusetts
    • 14 Octubre 2022
    ... ... circumstances of the crime, a victim's resistance is ... reasonably to be anticipated such that the participants in ... the crime would have recognized the need for some means by ... which to overcome that resistance." Commonwealth v ... Lavin, 101 Mass.App.Ct. 278, 284 (2022), quoting ... Commonwealth v. Netto, 438 Mass. 686, 702-703 (2003) ...          The ... evidence demonstrated that the coventurers knew the victim ... would be carrying a red limited-edition iPhone 7 Plus, which ... the victim ... ...

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