Commonwealth v. Joseph R. Lima.

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?"

DEFENSE COUNSEL: "Objection, Judge."

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."

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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?"

THE WITNESS: "Yes."

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,

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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.

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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.

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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).

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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.

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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.

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