Opinion
No. 11–P–1946.
2012-10-15
COMMONWEALTH v. Reginald D. EVANS.
By the Court (COHEN, RUBIN, & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the defendant's conviction of the crime of larceny over $250. The defendant alleges that the admission of evidence that he may have ingested drugs after he was detained created a substantial risk of a miscarriage of justice. We affirm.
Background. The jury heard the following evidence. On June 2, 2011, the defendant sought to buy a computer at the Target store in Worcester. He presented a credit card to John Zamoider, a Target employee. The credit card was refused. He then presented a check to Zamoider. The check was also refused. Zamoider then placed the computer behind the counter and waited on other customers. The defendant took the computer from behind the counter and walked toward the store exit. Zamoider was alerted to the fact that the defendant had taken the computer and notified the loss prevention office. Alex Geter, an employee in the Target loss prevention office, intercepted the defendant near the exit and asked him if he had a receipt for the computer. The defendant answered that he did not. The defendant was detained and the police were notified. While awaiting the arrival of the police in the loss prevention office, Geter saw the defendant take something from his pocket and swallow it. After that the defendant appeared to be sick and asked to go to the bathroom. When Officer Christopher Breeds arrived, he observed that the defendant appeared to be lethargic. He testified, “Um, I asked him if he had swallowed anything, because, uh, the Loss Prevention, uh, advised me that he may have swallowed a—a baggie, possibly with drugs in it. So, I asked him if he swallowed anything and he said that he did not.” Defense counsel did not object to Geter's observation of the defendant swallowing an item, nor to Officer Breed's testimony as to his concerns that the defendant may have ingested drugs. The interaction between the defendant and Zamoider and the defendant and Geter was videotaped. The videotape was shown to the jury.
The defendant testified that he mistakenly thought that the computer had been paid for.
Discussion. The defendant first argues that the cumulative effect of Officer Breeds's testimony, that the defendant “may have swallowed a—a baggie, possibly with drugs in it,” Geter's testimony, that the defendant swallowed “something,” and remarks made by the prosecutor during opening, unduly prejudiced the defendant by insinuating that he was a drug user and therefore had criminal propensities. In the absence of an objection, we consider whether admission of the testimony was error and, if so, whether the error gives rise to a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
In addition to the statements at issue in this appeal, the jury also heard the following testimony: the defendant twice attempted to pay for the merchandise and was declined both times; the store employee then put the merchandise behind the counter; and, when the store employee subsequently left, the defendant took the merchandise from behind the counter and began to leave. The jury also viewed the store security camera video, which mirrored the above testimony. Further, the judge thoroughly instructed the jury as to the elements of larceny and that opening and closing statements are not evidence. We conclude that had an objection to the evidence been made, and sustained, the evidence of the defendant's guilt was nevertheless so overwhelming as to uphold a verdict of larceny. See Commonwealth v. Snow, 58 Mass.App.Ct. 917, 918 (2003).
The defendant's second argument is that trial counsel's failure to object to the testimony deprived him of ineffective assistance of counsel. Because we conclude the evidence in its entirety is overwhelming as to the defendant's guilt, we do not find that the failure of trial counsel to object deprived defendant of a substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96–97 (1974).
Judgment affirmed.