COMMONWEALTH v. SHTUDINER (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Alexander Shtudiner, was convicted of three counts of receiving stolen property.² After trial, he pleaded guilty to one count of conspiracy to steal and distribute stolen goods. On appeal, he contends that (1) the judge erred in denying his pretrial motion to suppress evidence, (2) the introduction of prior bad acts caused unfair prejudice, and (3) the Commonwealth presented insufficient evidence to support the convictions for receiving stolen property. We affirm.

Background. We summarize the facts viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), and reserve additional facts for the discussion section below. In December of 2011, Sergeant Kimberly Cadrin of the Millbury Police Department, coordinated with members of the Sterling, Sutton, Boylston, and Worcester Police Departments in the investigation of residential breaking and entering crimes in Worcester County. In the course of the investigation, they “received information that suspects in the house breaks were delivering stolen property to the defendant's place of business,” a repair shop in Worcester called “Laptop PC and Repair.” One such suspect was Brian Avery.

On December 6, Sergeant Cadrin and a detective from the Sutton Police Department walked past the shop and observed in plain view an Emerson television and Samsung television, which they knew were “stolen from a break in, one in Millbury.” After “confirm[ing] there was stolen property” at the defendant's shop, Sergeant Cadrin obtained a warrant to search the shop. She and various other officers executed the search warrant around 11 a.m. on December 8, 2011.³ During the search the police located a stolen Toshiba laptop computer. Sergeant Cadrin asked whether the laptop had been entered into the logbook mandated by a city of Worcester ordinance.⁴ The defendant admitted that he stopped entering items he purchased from Avery into the logbook because he “had become very familiar with him.”⁵ The defendant also stated that he had purchased the Toshiba laptop from Avery; that Avery had “been in that morning and had -- he had purchased items from Mr. Avery that morning.” The defendant showed the officers five items that he had purchased that morning from Avery, which included a “PlayStation item,” Kodak camera, Sony controller, Samsung television, and Toshiba television. The police seized these items.

During the search, the defendant told the officers about two rooms in the basement where he kept additional items and equipment. While in the basement, the defendant received a telephone call from Avery. The defendant told the officers about the call, and the officers advised the defendant to tell Avery to come by the shop. The defendant did so. At some point, the defendant left the shop to smoke a cigarette while the officers stayed inside. The defendant reentered the shop, and advised that Avery had called again and stated that he was not coming in because he knew that police officers were present.

Sergeant Cadrin asked the defendant to make a written statement “to document what he had said to [the officers] in regard to Mr. Avery bringing in the stolen items.” The defendant reviewed and signed a “Millbury Police Department Voluntary Statement” form, and then provided the following written statement explaining his purchases from Avery:

“Today Millbury and Sutton PD came in asking about stolen items. Items identified as stolen were brought in by Brian Avery, including Toshiba TV, Toshiba laptop, PS3 just to name a few. While PD was here [Avery] called me to possibly sell me more items but was told outside the door that the police were here. [Avery] does come in sporadically sometimes twice a day.”

Sergeant Cadrin testified that the defendant “was the one” who identified the items as being stolen, and that she had no knowledge of the items in the statement being stolen until her arrival at the shop on December 8.

Discussion. 1. Motion to suppress. Following an evidentiary hearing on the defendant's motion to suppress, the judge recited comprehensive findings of fact and rulings of law on the record. The defendant claims that the judge erred in denying his motion to suppress because the interrogation became custodial, and the written statement was admitted in evidence in violation of Miranda.⁶ This claim is unavailing.

There is no dispute that the suppression argument hinges on whether the defendant reasonably believed that he was in custody at the time that he provided his statement. See Commonwealth v. Groome, 435 Mass. 201, 211 (2001), quoting Commonwealth v. Damiano, 422 Mass. 10, 13 (1996) (“The crucial question is whether, considering all the circumstances, a reasonable person in the defendant's position would have believed that he was in custody․ Thus, if the defendant reasonably believed that he was not free to leave, the interrogation occurred while the defendant was in custody, and Miranda warnings were required”). A court considers the following factors in determining the issue of custody:

“(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest.”

Groome, 435 Mass. at 211-212.

Here, the judge applied the Groome factors, and ruled that the defendant's statements were not the result of custodial interrogation. He determined, inter alia, that the defendant was no stranger to police; “he often worked with the police in determining whether property that may come into his possession was legitimately sold by the seller”; he was very cooperative; he “was never restrained during the search or afterward”; he was not handcuffed; he retained his cell phone; he left the premises with his cell phone and was unguarded; he was able to make and receive telephone calls; there was no formal questioning of him; he was not taken to the police station and was, at all times, in his own place of business; he “was not made to sit or stay in any one area”; additional persons were allowed to enter the business at the time of the search; and during the search he informed the police of additional rooms (of which the officers were not aware) and accompanied the police to these rooms. The record supports the judge's thorough findings, and we discern no error in his conclusion that the officers did not subject the defendant to custodial interrogation. See id. at 212-215. Compare Commonwealth v. Sneed, 440 Mass. 216, 221 (2003).

2. Propensity evidence. The defendant contends that the admission of three instances of “bad act” evidence was error that created a substantial risk of a miscarriage of justice. We disagree.

First, the defendant claims error in the admission of testimony that a detective had visited the defendant's shop on myriad prior occasions. Specifically, Detective Michael Gingerelli of the Worcester Police Department testified to the city of Worcester's requirement that each transaction and purchase by a second hand store owner “be recorded in what is the store's logbook.” He further testified that any police officer in the city of Worcester “can enter the second hand store at any time and examine the [log]book.” He also testified that as part of his duties, he oversees pawn shops and second hand stores in Worcester, and in that capacity visits such stores, checks on their books, and does so pursuant to the city of Worcester by-laws. Finally, he stated that in the years prior to the execution of the search warrant, he had visited the defendant's shop on approximately twenty occasions, and reviewed the logbook. This evidence, admitted without objection,⁷ was relevant and admissible to show that the defendant was familiar with the requirement to maintain the logbook and related obligations. Put another way, the evidence spoke to the defendant's state of mind and knowledge. See Commonwealth v. Mullane, 445 Mass. 702, 708-710 (2006) (evidence of prior police investigation properly admitted to show defendant's state of mind and knowledge of illicit activity). The evidence was also relevant to show that the defendant voluntarily made statements to the officers, as he was familiar with police officers, and it was not unusual for officers to enter his shop, look at items, and view the logbook.⁸ There was no error.

Second, the defendant argues that the prosecutor improperly asked the defendant on cross-examination whether he knew of Avery's drug problems. Here again, there was no error. On direct examination, the defendant testified that Avery was “very clean ․ very well spoken ․ just a great guy, very lucid, like I said, well spoken, always clean shaven, clean clothing.” He further elaborated that “[Avery's] appearance and his speech would not make you -- anyone in their right mind suspicious, or anything.” The obvious import of the defendant's testimony was to support his claim that he had no knowledge that Avery sold stolen goods, and that he had no reason to suspect that such a clean shaven, lucid, “great guy” would sell stolen goods. In response, the prosecutor elicited testimony to the effect that Avery sold him countless electronic items within a short span of time; that at some point he stopped recording the Avery transactions in the logbook; that Avery was residing in a sober house; and that Avery had issues involving heroin and had sold items in another nearby store where heroin had been sold. This evidence was relevant to rebut the claim that Avery was a “clean” citizen whom no one would suspect of suspicious behavior. To the contrary, the evidence revealed that Avery's situation rendered him unlikely, if not unable, to have legitimate access to such a high volume of expensive goods for sale, and that the defendant was aware of Avery's situation.⁹ See Commonwealth v. Khan, 92 Mass. App. Ct. 487, 495 (2017), quoting Commonwealth v. Simpson, 434 Mass. 570, 579 (2001) (“Whether evidence is relevant and whether its probative value is substantially outweighed by the prejudicial effect is in the ‘trial judge's broad discretion and [is] not disturbed absent palpable error’ ”).

Third, the defendant contends that the prosecutor should not have elicited testimony to the effect that the defendant's license to operate his shop was revoked. The Commonwealth responds that this evidence was relevant to present a full picture of events and to demonstrate the very real penalties the defendant faced when he knowingly purchased stolen goods from Avery. The defendant has the better argument. The evidence of the license revocation was not relevant to any material issue at trial, and the prosecutor should not have sought to introduce it. Although the admission of this evidence was error, it did not cause any palpable prejudice. The defendant testified that his license had not been revoked, and clarified that he decided to close his business on his own volition. Furthermore, the reference to the license revocation was brief, neither party dwelled on the subject in any way, and the prosecutor did not reference the issue in closing argument. Finally, the evidence against the defendant was strong. Thus, the error did not create a substantial risk of a miscarriage of justice.

3. Sufficiency of the evidence. The defendant last argues that the Commonwealth failed to prove that the PlayStation and Kodak camera were actually stolen, and that the defendant knew that any of the items were stolen. The argument is also unavailing.

In evaluating whether a motion for a required finding of not guilty was properly denied, the reviewing court “must consider whether, viewing the evidence in the light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, ․ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). See Latimore, 378 Mass. at 676-677. “Circumstantial evidence is sufficient to find someone guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence need only be reasonable and possible; [they] need not be necessary or inescapable” (quotations and citation omitted). Commonwealth v. Grandison, 433 Mass. 135, 141 (2001).

In the present case, there was sufficient evidence to show that the items were stolen and that the defendant knew that the items were stolen.¹⁰ First and foremost, the defendant's written statement, viewed in the light most favorable to the Commonwealth, was an admission that the items were stolen, and that the defendant knew so. The defendant contends that he made the statement at the request of the officers, and that the use of the passive voice in the statement reveals that he was merely repeating what he had heard from the officers, or providing context to the statement.

There is no doubt that the defendant used awkward wording in his statement. That notwithstanding, Sergeant Cadrin testified that she did not know that the camera, PlayStation, and additional items were stolen until the defendant told her so. In addition, she testified that she “had no idea about these items until [the defendant] showed them to [her].” Finally, Sergeant Cadrin testified that the defendant, in his written statement, identified the items brought to the store by Avery on the morning of the search, as “stolen.” In other words, Sergeant Cadrin not only did not tell the defendant what to put in his written statement; she also learned through the defendant's oral and written statements that the items brought to the store by Avery that same morning -- including the PlayStation and camera -- were stolen items and known by the defendant as such. That the defendant used the passive tense in his statement does not alter this conclusion. A rational jury viewing the evidence in the light most favorable to the Commonwealth could have concluded that the defendant used odd language to obfuscate or distance himself from the crime. This would not be the first case in which a defendant, under the guise of assisting law enforcement, talked his way into a conviction. See, e.g., Commonwealth v. Medina, 485 Mass. 296, 297-299 (2020) (defendant arrested after speaking with police regarding report of illegal activity and cooperating and offering information without prompting).

In denying the defendant's motion for a required finding of not guilty, the judge noted, apart from the defendant's admission, that the pattern of visits to the store by Avery, the substantial quantity of electronic items brought to the shop by Avery, and the “short period” of time during which Avery brought the items to the shop, “alone ․ would support an inference that the items were all stolen.” We agree with the judge's reasoned analysis.

Furthermore, the evidence of Avery's dire financial situation and drug-related issues further supported the reasonable inference that the recent deluge of electronic items in his possession were stolen and that the defendant knew that they were stolen. See Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 668 (2002), quoting Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 602 (1988) (jury could draw inferences that defendant had knowingly received and held stolen goods when defendant's possession of property exhibits “peculiarities” and “occurs in a context fraught with suspicion”). See also Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 569 n.2 (2000) (when defendant possesses property recently stolen, “that possession alone is a sufficient basis for jury to infer that he knows it to be stolen”).

Finally, the defendant's sudden decision to cease entering items purchased from Avery into the logbook, in violation of the city ordinance known to the defendant, and concurrent failure to record the Avery transactions in any way or maintain any receipts, provides further proof that the defendant knew the items to be stolen, and attempted to hide any record thereof. See generally Commonwealth v. Booker, 386 Mass. 466, 470 (1982), and cases cited (discussing consciousness of guilt evidence). Viewed in combination with the defendant's inculpatory statements, the evidence of the elements of receiving stolen property was not only “sufficient,” but strong.

Judgments affirmed.

FOOTNOTES

2.   The defendant was acquitted of three additional counts of receiving stolen property.

3.   Insofar as Sergeant Cadrin, a member of the Millbury Police Department, executed the search warrant in Worcester, a member of the Worcester Police Department accompanied her, per Worcester Police Department protocol.

4.   There was testimony at trial that a city of Worcester ordinance requires operators of second hand stores, like the defendant, to maintain a logbook, and record in the logbook entries of all items purchased, including the name, address, and date of birth of the seller. There was further evidence that the ordinance requires owners of such stores to refrain from displaying or selling newly purchased items for seven days, and that the defendant was well aware of the ordinance and its requirements. The defendant did not comply with the ordinance with respect to, inter alia, the stolen items he received from Avery on December 8, 2011.

5.   Avery's name appears repeatedly in the defendant's logbook between the first entry of his name on September 2, 2011, and the final entry on October 27, 2011. During this period, Avery sold the defendant cameras, numerous cell phones, computer parts, and music players. The defendant did not list any serial numbers for the items purchased from Avery. In addition, Avery provided a home address of 1059 Main Street, Worcester, for each of the above-referenced transactions. That address corresponds to Jeremiah's Inn, “which is a hospice living house, common house that people can stay at when they're trying to get on their feet.”

6.   See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

7.   In his brief, the defendant argues that evidence of the detective's prior visits to his shop was admitted over objection. Contrary to this claim, the defendant objected prior to the admission of any such testimony. At sidebar, the prosecutor explained the purpose and limits of the proposed testimony. Following this explanation, and in response to the judge's query, defense counsel stated, “Yes, that's fine. I just wanted an abundance of caution. Thank you.” Thereafter, defense counsel did not object to any of the testimony now challenged on appeal, and thus our review is limited to whether there was error, and if so, whether such error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

8.   During trial and in his final charge, the judge provided a humane practice instruction to the jury, which required the jury to determine that the defendant made his statements voluntarily.

9.   We reject the defendant's claim that the judge erred in failing to provide a limiting instruction. The defendant neither objected to the admission of the now-challenged “bad act” evidence, nor requested any such instruction. See Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992) (“the law does not require a judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested by the defendant”).

10.   Sergeant Cadrin identified the serial numbers on the Toshiba laptop as a match for the serial numbers on the Toshiba laptop stolen from a break-in in Boylston. The sufficiency of the evidence as to this item is overwhelming.