Commonwealth v. Wheeler
| Decision Date | 20 October 2020 |
| Docket Number | 18-P-955,18-P-1227,18-P-1683 |
| Citation | 157 N.E.3d 98 (Table),98 Mass.App.Ct. 1114 |
| Parties | COMMONWEALTH v. Darrell WHEELER (and two companion cases). |
| Court | Appeals Court of Massachusetts |
After a joint trial, a jury convicted three defendants, Darrell Wheeler, Kyriakoula Iliopoulos, and Justice Gonzalez of conspiring to violate drug laws,3 G. L. c. 94C, § 40. On appeal, the defendants raise several joint and individual claims. We review the following issues: (1) the denial of severance, (2) the admission of testimony that referenced gang affiliation, (3) the admission of the recorded telephone calls, and (4) the sufficiency of the evidence, and we affirm all three convictions.
Background. In a recorded telephone call, Gonzalez, an inmate at the Essex County House of Correction, stated that he needed somebody with "them ... shits." In response, Wheeler implied that he would acquire these items, stating "those shits are hard to come by ... but I try my best." Wheeler subsequently made statements that seemingly confirmed this agreement, such as "[i]f I do get them, ... how are we going to do this?"; and "when I get it all ... when I get everything, what ... am I supposed to do then?"
In another call, Gonzalez told Iliopoulos, Gonzalez and Iliopoulos then discussed contacting another person "because she's got the [money] to make the move." Iliopoulos asked whether this third party "knows the name and shit?" and Gonzalez responded, "She'll know it tomorrow."
The next day, Iliopoulos told Gonzalez, "I seen her for the money." Wheeler then joined the call and Gonzalez informed Wheeler that Mazza's "bail is only three hundred or whatever"; Gonzalez then spelled out Mazza's name and provided Wheeler with Mazza's MSA number.
The following day, Iliopoulos posted bail for Mazza. Two days later Iliopoulos revoked her surety and Mazza was returned to the Essex County House of Corrections. Upon return to the jail, Mazza self-identified as a gang member, which would generally result in him being housed in the same unit as Gonzalez. Before being placed in the gang unit, however, Mazza was held in an isolation cell with "dry status." While Mazza was waiting in the "dry status" cell, contraband -- including purple pills, heroin, marijuana, tobacco, and a lighter -- were recovered from Mazza's several bowel excretions.
Discussion. 1. Severance. "[S]everance is usually a matter within the sound discretion of the trial judge." Commonwealth v. Moran, 387 Mass. 644, 658 (1982). "Generally, severance will not be granted unless the defenses of the codefendants conflict to the point of being mutually antagonistic and irreconcilable" (quotation omitted). Commonwealth v. Masonoff, 70 Mass. App. Ct. 162, 167 (2007). Severance may also be appropriate, however, where "the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial." Moran, 387 Mass. at 658. Neither of these circumstances existed here. (quotations omitted). Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011).
Gonzalez asserts that Iliopoulos's defense at trial was antagonistic to his defense. We are not persuaded. Iliopoulos's defense centered on the idea that she was merely doing an innocent favor for a friend. Gonzalez's defense, on the other hand, was premised on a theory that he was misidentified. "[I]t is not enough that the defendants are hostile to one another or that one defendant would have a better chance of acquittal if tried alone." Commonwealth v. McAfee, 430 Mass. 483, 486 (1999). "Rather, severance is mandated only if their defenses conflict to the point of being mutually antagonistic and irreconcilable." Id. Where one defendant asserted that he or she was misidentified while a second defendant argued that an unnamed companion committed the crime, as was the case here, such defenses were not mutually antagonistic. See id. (). Accordingly, the judge did not abuse his discretion in denying Gonzalez's request for a severance on that basis.4
We also reject Gonzalez's and Iliopoulos's contentions that severance was required on the basis of compelling prejudice. To succeed on an assertion of compelling prejudice, the defendants must make a "strong showing of prejudice" (quotation omitted) that "was beyond the curative power of the judge's limiting instructions." Commonwealth v. Allison, 434 Mass. 670, 679 (2001). "Bare assertions of prejudice are not enough." Id. Accordingly, Gonzalez's mere claim of prejudice, without more, does not meet this test. Iliopoulos's claims fare no better.
Iliopoulos contends that the joint trial of several defendants created an "atmosphere of prejudice" warranting reversal. We are not persuaded. Despite the number of defendants, "the evidence was [not] so complex as necessarily to result in confusion." Commonwealth v. Benjamin, 3 Mass. App. Ct. 604, 625 (1975).
Iliopoulos's further contention that her trial was "tainted" by the "attitude" the jury may have towards the codefendants also lacks merit. The judge's instruction, which the jury is presumed to follow, that "[e]motion ... for one party or another has no place in your deliberations," sufficiently cured the possibility of any prejudice. See Commonwealth v. Wolfe, 478 Mass. 142, 152 (2017) ().
2. Gang affiliation. We also reject the contention that the trial judge abused his discretion in allowing testimony that used the word "gang" or suggested a possible gang affiliation. "[W]here evidence of gang affiliation is relevant ..., it is within the discretion of the judge to weigh the probative value of the evidence against its prejudicial effect." Commonwealth v. Correa, 437 Mass. 197, 201 (2002). Evidence that Gonzalez was housed in a gang unit was highly relevant to the Commonwealth's conspiracy theory that Mazza self-identified as a gang member to secure housing in the same unit with Gonzalez so he could give Gonzalez the items Mazza had obtained while on bail. Moreover, although we recognize that "evidence of a defendant's gang membership risks prejudice to the defendant in that it may suggest a propensity to criminality or violence," Commonwealth v. Phim, 462 Mass. 470, 477 (2012), such prejudice was quite minimal here. The correction officers explained to the jury that the particular gang unit in which the defendant was housed was frequently used as an overflow unit and, therefore, an inmate's assignment to such unit did not necessarily mean that the inmate was indeed gang affiliated. The judge also gave appropriate limiting instructions regarding gang affiliation and pointed out that there were no allegations in the case that any of the defendants were actually gang members. We perceive no error.5
3. Wheeler's arguments. Finally, we reject Wheeler's claims that the trial judge erred in admitting the recorded telephone calls, in allowing the identification evidence of Wheeler's voice, and in finding the evidence sufficient.
a. Recorded calls and voice identification. "In the discretion of a trial judge, a voice identification may be considered by a jury as long as the witness expresses some basic familiarity with the voice he or she claims to identify." Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522, 527 (1988). Detective Withrow, who identified Wheeler's voice on the recording, explained that he had known the defendant for "[a]pproximately ten years." Withrow also testified to being familiar with Wheeler's voice because he had spoken with Wheeler multiple times and had heard Wheeler speaking with other people.6 On this record, Withrow clearly possessed a "basic familiarity" with Wheeler's voice and thus could properly identify it at trial.7
We also see no error in the admission of the recorded telephone calls without a transcript or in the absence of expert testimony to explain the slang terms contained within it. Because the defendant did not object at trial, we review this challenge for a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010).
As a general rule, "[w]here the statement is in English, the prosecution may offer the recording in evidence without a transcript and rely on the fact finder's understanding of the recorded words." Commonwealth v. Portillo, 462 Mass. 324, 327 (2012). We are not aware of any precedent which creates an exception to this rule for recordings that contain slang terms, and see no need to extend such exception for the use of the slang terms referenced in the recordings introduced at trial here.
There was testimony at trial that coded language in prison was "always changing." In most instances, the context in which the words were used provides the best meaning to these coded slang terms. See Commonwealth v. Rosa, 468 Mass. 231, 240 (2014) (). In the context of an illicit plan involving the bailing out and returning of Mazza to the jail within a couple of days, followed by evidence that Mazza's feces contained heroin, purple pills, and other contraband, the jury could reasonably infer that the use of the...
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