NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-651
COMMONWEALTH
vs.
JOSEPH R. LIMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, a District Court judge convicted
the defendant, Joseph R. Lima, of malicious killing of a
domestic animal, a cat, in violation of G. L. c. 266, § 112.
The defendant appeals, arguing in part that the prosecutor's
questions to a police officer witness -- which brought out that
the defendant refused to speak to the police when the police
came to question him (and after the defendant had received
Miranda warnings) -- violated the protections enunciated in
Doyle v. Ohio, 426 U.S. 610, 611, 616-619 (1976), and
constituted error that was not harmless beyond a reasonable
doubt. We agree, and accordingly vacate the defendant's
conviction.
Discussion. 1. Reference to the defendant's decision to
remain silent. The defendant first argues that his right to remain silent was violated when the prosecutor elicited
testimony from a police officer that the defendant indicated
that he did not want to speak to the police. During the direct
examination of the police officer, the prosecutor brought out
that the officer had received a complaint from the defendant's
former girlfriend, a co-owner of the cat, to the effect that the
defendant killed the cat. The officer testified that she then
went to the defendant's home, after which the following exchange
and objections occurred:
THE PROSECUTOR: "And, when you went to speak with [the defendant], did he answer any questions? Did he speak with you?"
DEFENSE COUNSEL: "Objection, Judge."
THE JUDGE: "Overruled. . . . You can answer."
THE WITNESS: "I -- So, he did not necessarily speak with me. I mean, he said words, but he did not answer any questions that I asked, if that's what you're asking."
THE PROSECUTOR: "Did he indicate that he wanted to speak with you?"
THE WITNESS: "No -- Oh, sorry."
THE JUDGE: "Overruled, given the answer."
THE PROSECUTOR: "And, would you just repeat that for the record?"
THE WITNESS: "No. . . . He did not wish to speak to us."
2 During cross-examination of the officer, defense counsel
brought out that before she started questioning the defendant,
the officer had provided the Miranda warnings:
DEFENSE COUNSEL: "And, then, as far as going to speak to [the defendant], you went and you knocked on his apartment door, right?"
THE WITNESS: "Yes."
DEFENSE COUNSEL: "And, [you] read him his Miranda warnings, correct?"
DEFENSE COUNSEL: "And, he exercised his rights under the Miranda warnings, correct?"
THE WITNESS: "Correct."
"There is no question that, under the fundamental
principles of jurisprudence, evidence of a criminal defendant's
postarrest, post-Miranda silence cannot be used for the
substantive purpose of permitting an inference of guilt."
Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983). Further,
"[t]estimony regarding a defendant's statements indicating his
or her intention to remain silent are 'equally unacceptable.'"
Commonwealth v. Beneche, 458 Mass. 61, 73 (2010), quoting Mahdi,
supra at 694-695. Such an admission of a defendant's
postinvocation statement constitutes a violation of the
defendant's constitutional right to remain silent. See, e.g.,
Doyle, 426 U.S. at 617-618; Beneche, supra at 73, citing
Commonwealth v. Peixoto, 430 Mass. 654, 658-659 (2000). Here,
3 the officer's testimony that the defendant did not want to speak
to police after receiving Miranda warnings, introduced by the
prosecutor, violated these principles. 1
The Commonwealth argues, however, that if it was error to
admit the testimony, such error was harmless beyond a reasonable
doubt. See Commonwealth v. Delossantos, 492 Mass. 242, 249-253
(2023); Commonwealth v. Tiscione, 482 Mass. 485, 493 (2019). We
disagree. See Tiscione, supra at 493 (burden to show error was
harmless beyond reasonable doubt was on Commonwealth, as
"beneficiary of a constitutional error" [citation omitted]). In
considering whether a Doyle error is harmless beyond a
reasonable doubt, we consider: "(1) the relationship between
the evidence and the premise of the defense; (2) who introduced
the issue at trial; (3) the weight or quantum of evidence of
guilt; (4) the frequency of the reference; and (5) the
availability or effect of curative instructions." Mahdi, 388
Mass. at 696-697. The Supreme Judicial Court in Mahdi, id. at
698, stated that "[t]he nature of a Doyle error is so egregious
that reversal is the norm, not the exception."
1 The Commonwealth contends that it is unclear whether the officer's answers addressed prearrest or postarrest statements of the defendant. However, as revealed by defense counsel's questioning, supra, the defendant indicated that he did not wish to speak to the police after receiving his Miranda warnings.
4 Here, we cannot say that the admission was harmless error.
The first three of the Mahdi factors indicate that the error was
not harmless, particularly the relationship between the evidence
and the defense, and the strength (or lack thereof) of the
Commonwealth's case. The remaining Mahdi factors do not point
us to a different result.
As to the first and second Mahdi factors, the central
premise of the defense was that the defendant's former
girlfriend, who reported the incident, fabricated her allegation
that the defendant killed the cat. The testimony elicited by
the Commonwealth -- that the defendant refused to speak to the
police -- tended to undermine that defense, by suggesting to the
factfinder that if the defendant was being falsely accused, he
likely would have wanted to speak with the police.
Further, the strength of the evidence against the defendant
(factor 3) was not overwhelming. The Commonwealth's case hinged
almost exclusively on the testimony of the girlfriend, who
testified that the defendant admitted to her that he killed the
cat, and that she saw specks of blood on the bathroom floor at
the time of the defendant's admission. 2 Although there was some
corroboration of the girlfriend's testimony, in that the cat was
2 The girlfriend testified that the defendant stated that when he killed the cat, the cat started bleeding from its mouth.
5 not seen again, no witnesses offered testimony describing the
incident, and no physical or documentary evidence, including
photographs, were introduced by the Commonwealth. The
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-651
COMMONWEALTH
vs.
JOSEPH R. LIMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, a District Court judge convicted
the defendant, Joseph R. Lima, of malicious killing of a
domestic animal, a cat, in violation of G. L. c. 266, § 112.
The defendant appeals, arguing in part that the prosecutor's
questions to a police officer witness -- which brought out that
the defendant refused to speak to the police when the police
came to question him (and after the defendant had received
Miranda warnings) -- violated the protections enunciated in
Doyle v. Ohio, 426 U.S. 610, 611, 616-619 (1976), and
constituted error that was not harmless beyond a reasonable
doubt. We agree, and accordingly vacate the defendant's
conviction.
Discussion. 1. Reference to the defendant's decision to
remain silent. The defendant first argues that his right to remain silent was violated when the prosecutor elicited
testimony from a police officer that the defendant indicated
that he did not want to speak to the police. During the direct
examination of the police officer, the prosecutor brought out
that the officer had received a complaint from the defendant's
former girlfriend, a co-owner of the cat, to the effect that the
defendant killed the cat. The officer testified that she then
went to the defendant's home, after which the following exchange
and objections occurred:
THE PROSECUTOR: "And, when you went to speak with [the defendant], did he answer any questions? Did he speak with you?"
DEFENSE COUNSEL: "Objection, Judge."
THE JUDGE: "Overruled. . . . You can answer."
THE WITNESS: "I -- So, he did not necessarily speak with me. I mean, he said words, but he did not answer any questions that I asked, if that's what you're asking."
THE PROSECUTOR: "Did he indicate that he wanted to speak with you?"
THE WITNESS: "No -- Oh, sorry."
THE JUDGE: "Overruled, given the answer."
THE PROSECUTOR: "And, would you just repeat that for the record?"
THE WITNESS: "No. . . . He did not wish to speak to us."
2 During cross-examination of the officer, defense counsel
brought out that before she started questioning the defendant,
the officer had provided the Miranda warnings:
DEFENSE COUNSEL: "And, then, as far as going to speak to [the defendant], you went and you knocked on his apartment door, right?"
THE WITNESS: "Yes."
DEFENSE COUNSEL: "And, [you] read him his Miranda warnings, correct?"
DEFENSE COUNSEL: "And, he exercised his rights under the Miranda warnings, correct?"
THE WITNESS: "Correct."
"There is no question that, under the fundamental
principles of jurisprudence, evidence of a criminal defendant's
postarrest, post-Miranda silence cannot be used for the
substantive purpose of permitting an inference of guilt."
Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983). Further,
"[t]estimony regarding a defendant's statements indicating his
or her intention to remain silent are 'equally unacceptable.'"
Commonwealth v. Beneche, 458 Mass. 61, 73 (2010), quoting Mahdi,
supra at 694-695. Such an admission of a defendant's
postinvocation statement constitutes a violation of the
defendant's constitutional right to remain silent. See, e.g.,
Doyle, 426 U.S. at 617-618; Beneche, supra at 73, citing
Commonwealth v. Peixoto, 430 Mass. 654, 658-659 (2000). Here,
3 the officer's testimony that the defendant did not want to speak
to police after receiving Miranda warnings, introduced by the
prosecutor, violated these principles. 1
The Commonwealth argues, however, that if it was error to
admit the testimony, such error was harmless beyond a reasonable
doubt. See Commonwealth v. Delossantos, 492 Mass. 242, 249-253
(2023); Commonwealth v. Tiscione, 482 Mass. 485, 493 (2019). We
disagree. See Tiscione, supra at 493 (burden to show error was
harmless beyond reasonable doubt was on Commonwealth, as
"beneficiary of a constitutional error" [citation omitted]). In
considering whether a Doyle error is harmless beyond a
reasonable doubt, we consider: "(1) the relationship between
the evidence and the premise of the defense; (2) who introduced
the issue at trial; (3) the weight or quantum of evidence of
guilt; (4) the frequency of the reference; and (5) the
availability or effect of curative instructions." Mahdi, 388
Mass. at 696-697. The Supreme Judicial Court in Mahdi, id. at
698, stated that "[t]he nature of a Doyle error is so egregious
that reversal is the norm, not the exception."
1 The Commonwealth contends that it is unclear whether the officer's answers addressed prearrest or postarrest statements of the defendant. However, as revealed by defense counsel's questioning, supra, the defendant indicated that he did not wish to speak to the police after receiving his Miranda warnings.
4 Here, we cannot say that the admission was harmless error.
The first three of the Mahdi factors indicate that the error was
not harmless, particularly the relationship between the evidence
and the defense, and the strength (or lack thereof) of the
Commonwealth's case. The remaining Mahdi factors do not point
us to a different result.
As to the first and second Mahdi factors, the central
premise of the defense was that the defendant's former
girlfriend, who reported the incident, fabricated her allegation
that the defendant killed the cat. The testimony elicited by
the Commonwealth -- that the defendant refused to speak to the
police -- tended to undermine that defense, by suggesting to the
factfinder that if the defendant was being falsely accused, he
likely would have wanted to speak with the police.
Further, the strength of the evidence against the defendant
(factor 3) was not overwhelming. The Commonwealth's case hinged
almost exclusively on the testimony of the girlfriend, who
testified that the defendant admitted to her that he killed the
cat, and that she saw specks of blood on the bathroom floor at
the time of the defendant's admission. 2 Although there was some
corroboration of the girlfriend's testimony, in that the cat was
2 The girlfriend testified that the defendant stated that when he killed the cat, the cat started bleeding from its mouth.
5 not seen again, no witnesses offered testimony describing the
incident, and no physical or documentary evidence, including
photographs, were introduced by the Commonwealth. The
Commonwealth's sole other witness was the police officer who
investigated the complaint. Under the circumstances, the
Commonwealth's effort to emphasize that the defendant did not
speak to the police could well have improperly bolstered the
credibility of the girlfriend in the eyes of the factfinder. 3
2. Sufficiency of the evidence. The defendant also argues
that the evidence was insufficient as a matter of law to
establish the elements of the crime of malicious killing of a
domestic animal. See G. L. c. 266, § 112.
We review the sufficiency of the evidence to determine
whether "there was enough evidence that could have satisfied a
rational trier of fact of each . . . element beyond a reasonable
doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-678
(1979). We consider the evidence "in the light most favorable
3 The Commonwealth also contends that the error was harmless beyond a reasonable doubt as this was a jury-waived trial, where there is a presumption that the judge has correctly instructed herself on the law, and a judge may not be as affected by impermissible testimony as a jury. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008); Commonwealth v. Kerns, 449 Mass. 641, 650 n.13 (2007). However, here, where the judge overruled defense counsel's objections and admitted the erroneous testimony, neither presumption applies. Contrast Murungu, supra at 448 (judge indicated familiarity with first complaint doctrine on record).
6 to the Commonwealth." Commonwealth v. Kobrin, 72 Mass. App. Ct.
589, 597 (2008). When evaluating sufficiency of corroborating
evidence to an admission, "the standard we apply requires merely
that there may be some evidence, besides the confession, that
the criminal act was committed by someone, that is that the
crime was real and not imaginary" (quotations and citations
omitted). Commonwealth v. Rodriguez, 76 Mass. App. Ct. 59, 63
(2009).
We consider the sufficiency of the evidence "upon that
which was admitted in evidence without regard to the propriety
of the admission." Commonwealth v. Sepheus, 468 Mass. 160, 164
(2014) (citation omitted). Here, there was sufficient evidence
to support the defendant's conviction. 4
As discussed, the defendant confessed to the girlfriend
that he killed the cat, and provided significant detail --
including that he choked the cat; blood came out of the cat's
mouth when he killed the cat; and he threw the cat away and did
not bury it. And in addition to the defendant's admissions,
upon arriving at the apartment, the girlfriend saw blood specks
on the bathroom floor and did not see the cat. She never saw
the cat again. Though the evidence was not overwhelming, the
4 We note that the evidence is sufficient even if we leave aside the improperly admitted evidence of the defendant's decision to remain silent.
7 evidence and the inferences therefrom, viewed in the light most
favorable to the Commonwealth, were sufficient to allow a
rational trier of fact to infer that the defendant killed the
cat, corroborating the defendant's admissions. See Commonwealth
v. Forde, 392 Mass. 453, 458 (1984) (sufficient evidence where
death of victim corroborated confession); Commonwealth v.
Rarick, 87 Mass. App. Ct. 349, 353 (2015) (weight of evidence is
not determination of sufficiency of evidence).
However, as noted, supra, the admission of evidence that
the defendant did not want to speak to police was an error that
was not harmless beyond a reasonable doubt. See Commonwealth v.
Vasquez, 456 Mass. 350, 362 (2010) (in reviewing harmless error,
"[i]t is not enough for the Commonwealth to demonstrate that its
other, properly admitted evidence was sufficient to convict the
defendant . . ." [quotation and citation omitted]).
Accordingly, the judgment is vacated, and the finding is
set aside.
So ordered.
By the Court (Rubin, Englander & D'Angelo, JJ. 5),
Clerk
Entered: June 24, 2024.
5 The panelists are listed in order of seniority.