Commonwealth v. Ali

684 N.E.2d 1200, 43 Mass. App. Ct. 549, 1997 Mass. App. LEXIS 208
CourtMassachusetts Appeals Court
DecidedSeptember 26, 1997
DocketNo. 96-P-727
StatusPublished
Cited by10 cases

This text of 684 N.E.2d 1200 (Commonwealth v. Ali) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ali, 684 N.E.2d 1200, 43 Mass. App. Ct. 549, 1997 Mass. App. LEXIS 208 (Mass. Ct. App. 1997).

Opinion

Warner, C.J.

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), All’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 allowed2; (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.

[551]*551Inside, 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 feet six or seven, seventeen or nineteen years old, slender, with black hair. She ftirther 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 feet five and five feet nine, and of stocky build. The robbers were described as agile, and from this two witnesses concluded that they were young.4

[552]*552During 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 fix 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 testifed 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 motorcyle 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.

[553]*553A 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.

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Bluebook (online)
684 N.E.2d 1200, 43 Mass. App. Ct. 549, 1997 Mass. App. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ali-massappct-1997.