Commonwealth v. Philip G. Carter.

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-550

COMMONWEALTH

vs.

PHILIP G. CARTER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a District Court bench trial, the defendant was

convicted of breaking and entering a building at night, G. L.

c. 266, § 16. On appeal, he claims that the evidence at trial

was insufficient to identify him as the perpetrator and that

misstatements in the prosecutor's closing argument created a

substantial risk of a miscarriage of justice. The defendant

also appeals from the order denying his motion for a new trial,

claiming that the Commonwealth withheld potentially exculpatory

evidence. We affirm.

1. Identity of perpetrator. The defendant contends that

the judge erred in denying his motion for a required finding of

not guilty because the evidence failed to establish his identity

as the perpetrator of the crimes. Just prior to trial, the

defendant's codefendant -- his brother -- pleaded guilty to the
same breaking and entering. The Commonwealth's theory at the

defendant's trial was that he was a joint venturer, aiding and

abetting his brother in the breaking and entering. The aiding

and abetting consisted of the defendant driving a pickup truck

to the scene, which allowed his brother to take away items

stolen from the victim's home. On appeal, the defendant does

not dispute that the driver of the pickup truck was an

accomplice to the crime; rather, he maintains that the evidence

was insufficient to establish that he was in fact the driver of

the truck.

In reviewing the denial of a motion for a required finding

of not guilty, we consider whether any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt. Commonwealth v. Scott, 464 Mass. 355, 360

(2013). An essential element to be proven in any case is the

identity of the defendant as the perpetrator of the crime

charged. See Commonwealth v. Farley, 443 Mass. 740, 745-746

(2005). Proof of identity may be established in a number of

ways, including through circumstantial evidence. See

Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 162 (2019). A

fact finder is entitled to draw reasonable inferences from the

evidence. See Commonwealth v. Blackmer, 77 Mass. App. Ct. 474,

483 (2010). Where conflicting inferences are possible, it is

for the fact finder to determine where the truth lies because

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the weight and credibility of the evidence is wholly within the

province of the fact finder. See Commonwealth v. Platt, 440

Mass. 396, 401 (2003).

Examining the evidence in the light most favorable to the

Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979), the judge could have found the following facts. On

the evening of July 21, 2019, the victim returned from vacation

to find that his home had been broken into and ransacked. Among

the many items missing from his home, the victim identified cash

taken from his bedroom, "maybe 9 or 10 $100 bills" and "two $2

bills on a single sheet that had not been cut," as well as his

passport.

Video from the victim's home security camera showed a

pickup truck driving slowly by at about 3:45 A.M. and stopping

at his house. About five minutes later, an individual walked

across the grass and got into the truck before it drove away.

The same individual appeared again at about 6:30 A.M., this time

walking across the grass while talking on a cell phone. About

twenty minutes later, the pickup truck drove by again.1

The following day, at about 7:00 A.M., police were

dispatched to a Dunkin' Donuts for a disturbance involving a

1 Although there was no formal identification at trial,
everyone seemed to agree that the individual in the video was
the defendant's brother.

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pickup truck.2 The police stopped the pickup truck and

approached. The defendant was in the driver's seat and his

brother was in the front passenger seat. Both were sweaty with

"pinpoint" pupils. The police observed duffle bags, backpacks,

and other containers in the truck bed. When asked about the

items in the truck bed, both the defendant and his brother

stated that they had been helping a friend with moving and had

just stopped to take a break and get coffee. When the police

asked the defendant to step out of the truck, he drove off,

leading the police in a chase. Shortly thereafter, the

defendant and his brother abandoned the truck and began running.

The police were able to apprehend both of them. A search of the

defendant yielded "a couple of $2 bills" and "a lot of hundreds"

from his pocket.3 Among other stolen items retrieved from the

pickup truck, the police found the victim's passport in the cab

of the truck.4

2 The description of the pickup truck, including the license
plate, matched a pickup truck observed by police to have been
driving slowly near the area of the victim's home in the early
morning hours of July 21, 2019.

3 The inventory of the cash seized from the defendant showed
two $2 bills and twelve $100 bills.

4 Other items stolen from the victim's home were found in
the truck, including a Honda generator, a Dremel tool, a belt
sander, gift cards, video games, jewelry, a collection of half
dollar coins, and a prescription bottle.

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Two days after the break-in, the victim discovered a

backpack in his bedroom that he did not recognize. Inside, he

found tools, including a screwdriver, and empty prescription

pill bottles, one with the defendant's name on it and another

with his brother's name.

The evidence amply supported the conclusion that the

defendant was the driver of the pickup truck, aiding his brother

in the breaking and entering. The day after the victim's home

was broken into, the defendant was found driving a pickup truck

full of items stolen from the victim's home. Additionally, his

passenger was his brother, the person who broke into the

victim's home. Moreover, the pickup truck had been observed

near the area of the victim's home in the early morning hours of

July 21, 2019, the same day that the victim's home security

video showed a pickup truck picking up the defendant's brother

in the early morning hours. Added to this was the defendant's

flight after being confronted by police. As the trial judge

found, significant evidence included the discovery of $2 bills

and a number of $100 bills on the defendant himself.

The evidence thus sufficiently established the defendant as

the driver-accomplice, a knowing and intentional participant in

the breaking and entering with the intent to commit a larceny.

See G. L. c. 266, § 16 (breaking and entering at night); G. L.

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c. 274, § 2 (aiding and abetting). See also Commonwealth v.

Zanetti, 454 Mass. 449, 467-468 (2009).

2. Prosecutor's closing argument. The defendant argues

that the prosecutor's closing argument misstated the evidence

concerning the money found in the defendant's pocket; but he

failed to object to the statement at trial. We review

unobjected-to statements during closing argument to determine

whether they created a substantial risk of a miscarriage of

justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788

(2011) ("Where, as here, no objection was made at trial, we must

determine whether the prosecutor's closing argument error

resulted in a substantial risk of a miscarriage of justice").

Although closing arguments are not evidence, see

Commonwealth v. Lester, 486 Mass. 239, 249 (2020), prosecutors

may not misstate the evidence. See Commonwealth v. Carriere,

470 Mass. 1, 19 (2014). If there is a deviation from the

evidence, its effect must be viewed in context of the entire

argument, the evidence at trial, and the jury instructions. See

Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). In a jury-

waived trial, like this one, the judge is expected to know the

law and apply it correctly, see Commonwealth v. Healy, 452 Mass.

510, 514 (2008); for example, that the evidence, rather than

characterizations of counsel in closing argument, should be

relied on by the fact finder.

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As to the money found on the defendant, the prosecutor

stated in closing that

"there were items found in this defendant's pocket that
were specifically described by the named victim in this
case; 12 $100 bills, there was no coincidence that there
were 12 $100 bills found in this defendant's pocket, as
well as two $2 bills. Another rare form of currency. The
victim did specifically tell the Court there was something
unique about those dollar bills and that's what [the
officer] said. He couldn't remember exactly what it was,
but there was something odd about these $2 bills."

While the number of $100 bills reported missing by the

victim did not correspond exactly with the number found on the

defendant and the officer did not specifically say that there

was something unique or odd about the two $2 bills recovered,5

the thrust of the prosecutor's argument was that there was a

remarkable consistency between the description of the cash

reported missing by the victim and that recovered from the

defendant. That there were twelve $100 bills recovered when the

victim estimated "maybe 9 or 10," and that there were two $2

bills recovered without mention of them being attached on a

5 The missing cash was described by the victim as "maybe 9
or 10 $100 bills" and "two $2 bills on a single sheet that had
not been cut." The inventory reflected twelve $100 bills and
two $2 bills. An officer testified that there was "a lot of
cash" recovered from the defendant's pocket, including "a lot of
hundreds" and "a couple of $2 bills." Although he could not
recall anything specific about the $2 bills, he did testify that
"one or two bills . . . were like folded up."

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single sheet, did not undermine the conclusion that the cash

found on the defendant was likely that stolen from the victim.

Moreover, the cash on the defendant was not the only

connection to the breaking and entering. As the judge mentioned

in her findings, the defendant was found driving the truck used

to aid his brother in the breaking and entering, and it still

had in it the victim's stolen property. We do not view the

judge's mention of the "number of $100 bills," and the

"uniqueness of the $2 bills," as reliance on the prosecutor's

characterization of this evidence, rather than the evidence

itself. The general consistency of the cash stolen from the

victim and the cash found on the defendant only added to the

already overwhelming evidence of the defendant's guilt. We

discern no risk that the outcome of the case would have been

different if not for the prosecutor's comments in closing. See

Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).

3. Withholding of potentially exculpatory evidence. After

learning posttrial that a listed Commonwealth witness had been

discharged for official misconduct, the defendant moved for a

new trial on the basis of newly discovered evidence that the

prosecution had withheld potentially exculpatory evidence.

After hearing, the motion judge, who was also the trial judge,

denied the motion. On appeal, the defendant argues that the

judge had no discretion to deny the motion because he had

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established prejudicial constitutional error. See Commonwealth

v. Brescia, 471 Mass. 381, 388-389 (2015).

We review the denial of a motion for new trial for

significant error of law or other abuse of discretion. See

Commonwealth v. Hernandez, 481 Mass. 189, 195 (2019). To

succeed on a motion for new trial based on the prosecution's

withholding of potentially exculpatory evidence, the defendant

must establish that the evidence was exculpatory, that it was in

the possession of the prosecution, and that he was prejudiced by

the prosecution's withholding of the evidence. See Commonwealth

v. Caldwell, 487 Mass. 370, 375 (2021). Here, there was no

dispute that the evidence constituted exculpatory evidence in

the possession of the prosecution. The question at the hearing

was whether the defendant was prejudiced.

As the judge found, the discharged officer's role in the

investigation was limited, involving the incident at the Dunkin'

Donuts. He did not actually testify at trial; rather, the

substance of his anticipated testimony came through another

witness and a stipulation. Although the officer did handle and

document evidence, this evidence was initially witnessed by

other officers who saw the stolen goods in the open truck bed

and recovered cash from the defendant's pocket. Given the other

strong evidence of the defendant's guilt, we discern no risk

that timely disclosure of the exculpatory evidence would have

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altered the result. See Commonwealth v. Ferreira, 481 Mass.

641, 650 (2019). The judge was within her discretion in denying

the motion on the basis that the defendant had failed to show

prejudice.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Desmond, Shin &
Singh, JJ.6),

Assistant Clerk

Entered: June 20, 2024.

6 The panelists are listed in order of seniority.

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