This post examines a recent opinion from the Appeals Court of Massachusetts: Commonwealth v. George Fichera, 2017 WL 676681 (2017). The court begins the opinion by explaining
that
[a]fter a jury-waived trial, the
defendant, George Fichera, was convicted of breaking and entering in the
nighttime with intent to commit a felony, and larceny from a building. He
appeals, arguing that the judge erred in denying his motion for a required finding of not guilty, and in admitting evidence rebutting his alibi. We
affirm.
Commonwealth v. George
Fichera, supra.
The opinion goes on to explain that in ruling on Fichera’s
motion for a required finding of not guilty, the trial court judge
heard the following evidence. Paul Hsi
provided computer support at the Massachusetts Institute of Technology (MIT).
His office was located within building 37 in a suite of three offices known as
room 232. On August 25, 2011, before he left work for the day, Hsi left a
Toshiba laptop computer in a black computer bag on the floor behind his chair
in his office. When he arrived at work the next day, the laptop was missing.
Hsi testified that both his individual office, and the outer door to room 232,
were locked each night when he left the office. In addition, because a laptop
had been stolen from a neighboring office approximately two years earlier, Hsi
had installed on his computer a motion activated recording camera to monitor
his office when he was not there. Any time the camera turned on and recorded
activity, an electronic mail message was generated with the pictures attached;
if there was no activity in his office the camera remained off.
Hsi confirmed that the time-stamped
photographs admitted in evidence were those taken by his office camera during
the evening of August 25. The pictures time stamped at 21:07 (9:07 P.M.)
and after, show the defendant entering Hsi's office holding a cup, looking
around, picking up the laptop from the bag on the floor, then replacing the
laptop and leaving the room, closing the door behind him. Pictures time stamped
at 23:52 (or 11:52 P.M.) and after, show the door to Hsi's office open, with
just an arm captured in the photo frame and then the screen went dark; several
seconds later the office lights came on and the recording ended.
Gail Wood, a facilities supervisor
at MIT, testified that on the night of August 25, the defendant was working his
usual four to midnight shift, and he was assigned to building 41. At 9:00 P.M.,
she saw the defendant in building 37 around break time; Wood concluded that he
was in building 37 without authority, and instructed him to return to his
assigned building across the street from building 37. Wood also testified that
any complaints would have gone through her and that she did not recall sending
the defendant or anyone a page to go to building 37 `or anything like that.’ As
required, at the end of his shift between 11:45 P.M. and
midnight, the defendant reported to building 10 to return the building keys (to
either Wood or the other supervisor on duty) issued to him at the beginning of
his shift.
Lawrence Brutti, the MIT parking and
transportation manager, testified that he provided the campus police with a
card activity report for the defendant's employer-issued parking card; the
report showed that, while the defendant parked in the `Strata’ garage on the
evenings of August 24 and August 26, there is no record that he parked in the
garage on the evening of August 25 between 4:00 P.M. and
midnight.
Christopher Gile, the manager of MIT
custodial services, testified that on August 25, 2011, the defendant `swiped’
in and out of work from building 10 (two or three buildings over, and a three
minute walk, from building 37) rather than his general practice of swiping in
and out of building 32.
Commonwealth v. George
Fichera, supra.
The Appeals Court included footnotes after two of the
statements above. After the paragraph that ends with “and the recording ended”,
the court added a footnote that says “[a] computer disc containing all of the
pictures was admitted at trial.” Commonwealth
v. George Fichera, supra. It also appended another footnote after the opinion’s
first mention of Gail Wood, which says that
Wood was responsible for supervising approximately twenty
Wood was responsible for supervising approximately twenty
custodial/cleaning staff, including the
defendant; she also was responsible for responding to any emergencies that
might arise in connection with any of the various MIT buildings.
Commonwealth v. George
Fichera, supra.
The Appeals Court went on to explain that
[t]o convict the defendant of breaking
and entering in the nighttime with intent to commit a felony, the Commonwealth
had the burden of proving beyond a reasonable doubt that the defendant was
guilty of each of the following elements: `(1) breaking and (2) entering a
building . . . belonging to another (3) at night, (4) with the intent to commit
a felony.’ Commonwealth v. Cabrera,
449 Mass. 825, 827 (2007). To convict him of larceny from a building, the
Commonwealth also was required to prove that the defendant `(1) took or carried
away property; (2) which belonged to another; (3) from a building; and (4) with
the intent to deprive that person of the property permanently.’ Commonwealth v. Barklow, 52
Mass. App. Ct. 765, 766 (2001).
Commonwealth v. George
Fichera, supra.
The court went on to explain that
`[w]e review [the denial of a motion
for a required finding of not guilty] to determine whether the evidence viewed
in the light most favorable to the Commonwealth could have “satisfied a
rational trier of fact” of each element of the crimes charged beyond a reasonable
doubt.’ Commonwealth v. Conkey,
443 Mass. 60, 72 (2004), quoting from Commonwealth
v. Latimore, 378 Mass. 671, 677-678 (1979). Where the evidence is largely
circumstantial, it is not essential that the inferences drawn should be the
only necessary inferences. `”Inferences from the evidence 'need only be
reasonable and possible.’” Commonwealth v. Conkey, supra,
quoting from Commonwealth v. Lodge,
431 Mass. 461, 465 (2000). `If conflicting inferences are possible from the
evidence, 'it is for the jury to determine where the truth lies.’ Commonwealth v. Wilborne, 382 Mass. 241,
245 (1981), quoting from Commonwealth v.
Amazeen, 375 Mass. 73, 81 (1978). Commonwealth v. Deane, 458 Mass. 43, 50 (2010), quoting
from Commonwealth v. Garuti,
454 Mass. 48, 54-55 (2009).
Commonwealth v. George
Fichera, supra.
The Appeals Court went on to hold that
[r]eviewing all of the evidence in the
light most favorable to the Commonwealth, along with all permissible inferences
drawn therefrom, we are satisfied that the Commonwealth presented `enough
evidence that could have satisfied a rational trier of fact’ that on the
evening of August 25 the defendant broke into room 232 in building 37 and
removed the Toshiba laptop computer from Hsi's office without authority to do so. Commonwealth v. Torres, 468
Mass. 286, 292 (2014), quoting from Commonwealth
v. Latimore, 378 Mass. at
677-678.
Commonwealth v. George
Fichera, supra.
The court went on to address the other issue Fichera raised
in his appeal, i.e., that the trial
court judge “erred . . . in admitting evidence rebutting his alibi.” Commonwealth v. George Fichera, supra. The
opinion begins the court’s analysis of this issue by explaining that the
defendant testified that, although on
August 25 he was assigned to buildings 41 and 44, he maintained a locker in
building 37. At approximately 9 P.M. on August 25, he went to building 37
to get a teabag and make a cup of tea, when he received a page for a `water pickup.’
Because he was nearby, he went into Hsi's office and looked around; he also
picked up the laptop. When asked why he did that, the defendant replied,
`[j]ust curiosity. . . .You know, at this point in time, I don't know why. Just
stupidity. . . . It was a very thin computer.’
Commonwealth v. George
Fichera, supra.
The court then explained that
Gile testified that all of the
custodians under his management at MIT, including the defendant, carried a
pager while working. Gile provided the defendant's pager to the MIT police, and
he observed that only one page was sent to the defendant on August 25, at
around 5:00 P.M., relating to `some tickets.’ Gile also determined that no
page was sent to the defendant's pager during his shift relating to building
37, and specifically that no emergency page was sent regarding a water leak in
that building.
The defendant argues that the judge
erred in allowing Gile, over objection, to testify about whether a page had
been sent to the defendant during his work shift that night; he contends that
the Commonwealth failed to provide a foundation for Gile's basis of
knowledge. This argument also fails.
Commonwealth v. George
Fichera, supra.
The Appeals Court then held that
`[t]he only foundation required for the
testimony of lay witnesses is the ability to perceive, recall, and recount information
within the witness's personal knowledge.’ Commonwealth
v. Cintron, 435 Mass. 509, 521 (2001). See Mass. G. Evid. §602 (2016). Here, Gile's personal knowledge of relevant procedures and his
observations of the content on the defendant's pager established a sufficient
foundation to support the admission of his testimony. We see no error.
Commonwealth v. George
Fichera, supra.
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