Opinion
21-P-307
10-14-2022
COMMONWEALTH v. NHAN HUYNH
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of possession of a firearm without a firearm identification card (FID) and possession of ammunition without an FID card and found not guilty of conspiracy. On appeal, the defendant claims two unpreserved errors created a substantial risk of a miscarriage of justice: (1) the judge improperly deprived him of the opportunity to make a closing argument and (2) the judge erroneously admitted hearsay evidence. We affirm.
At the close of the Commonwealth's case, the judge dismissed charges for receiving stolen property and for defacing a firearm serial number.
1. Closing argument.
The defendant claims that the judge denied him the opportunity to make a closing argument, which in turn denied him the right to counsel, and resulted in a substantial risk of a miscarriage of justice. We disagree.
"The Sixth Amendment right to counsel includes a defendant's right to make a closing argument in a criminal trial." Commonwealth v. Marvin, 417 Mass. 291, 292 (1994) . See Herring v. New York, 422 U.S. 853, 858-865 (1975); Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 12-13 (1986). In Herring, the Supreme Court also noted the following:
"[t]he Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny the accused such right" (emphasis added).Herring, supra at 860, quoting Yopps v. State, 228 Md. 204, 207 (1962) .
Here, at the close of the evidence, defense counsel moved and argued for required findings of not guilty on the possession charges. After the Commonwealth concluded its argument in opposition to the motions, the judge asked, "Do you wish to argue on the rest of the charges?" The Commonwealth offered an additional argument, but the defendant did not request to be heard further. The judge stated, "Okay. So[,] I'm going to review everything and I'll be back." Defense counsel replied, "Very good, your Honor." When the judge returned from her recess, she rendered her verdict and asked if the Commonwealth was moving for sentencing. Defense counsel interrupted and asked if he could be heard, and the judge said, "Yes you may." Defense counsel then argued, albeit unsuccessfully, that two of the convictions were duplicative. He made no request to be heard further.
Contrary to the defendant's claim, defense counsel was given the opportunity to argue but did not avail himself of the opportunity. In fact, rather than asking to be permitted to make a closing argument, counsel told the judge, "Very good," when she announced her intention to recess to evaluate the case. While the better practice would have been for the judge to explicitly inquire whether counsel desired to present a closing argument, the circumstances here revealed that counsel waived that opportunity. See Herring, 422 U.S. at 860. Moreover, the defendant has not articulated what, if any, additional argument his counsel would have advanced if the judge had overtly invited closing arguments. In short, the defendant has not satisfied his burden of showing that the judge denied his counsel the right to present a closing argument. Contrast Commonwealth v. Martelli, 38 Mass.App.Ct. 669, 670-672 (1995) (defendant's rights violated when counsel started to make his closing argument and judge interrupted and said, "I don't want to hear anything"); Miranda, 22 Mass.App.Ct. at 11-13 (defendant's rights violated when judge told counsel that argument was not necessary, he had made up his mind on guilt, and argument would be superfluous). There was no error and, thus, no risk that justice miscarried.
2. Hearsay evidence.
The defendant also claims that the judge should have sua sponte excluded the testimony of two detectives that a nontestifying witness indicated that the defendant was involved in the discharge of the firearm in the liquor store parking lot. This evidence, he claims, created a substantial risk of a miscarriage of justice. We disagree.
The Supreme Judicial Court has "permitted the use of carefully circumscribed extrajudicial statements in criminal trials to explain the state of police knowledge." Commonwealth v. Rosario, 430 Mass. 505, 508 (1999). Testimony relating to the state of police knowledge explains the officer's investigative purpose and demonstrates the path that led the officer to the defendant. See id. "[T]he hearsay rule forbids only the testimonial use of reported statements. It does not preclude the use of such statements for other valid purposes such as . . . the state of police knowledge" (citation omitted). Commonwealth v. Doyle, 83 Mass.App.Ct. 384, 389 (2013) .
The evidence here was admissible as background for the state of police knowledge, and what led them to the defendant. It was not offered for its truth. See Doyle, 83 Mass.App.Ct. at 389. At the time the detectives spoke to the nontestifying witness, they did not have any identified suspects from the liquor store incident. The statements the detectives testified to were within their own personal knowledge as they were both present for the conversation with the nontestifying witness. The testimony was limited to their investigation of the defendant, and nothing further.
Even if the complained-of evidence was not admissible, the judge's failure to sua sponte exclude it did not create a substantial risk of a miscarriage of justice. We presume that a judge at a jury-waived trial "correctly instructed [her]self as to the manner in which evidence was to be considered in [her] role as factfinder." Commonwealth v. Batista, 53 Mass.App.Ct. 642, 648 (2002). That presumption fades only "where the record indicates otherwise." Commonwealth v. Urkiel, 63 Mass.App.Ct. 445, 451 (2005).
Here, nothing in the record indicates that the judge did not properly instruct herself. Moreover, the case against the defendant was strong, including the defendant's recorded interview with the police in which he admitted that he and his girlfriend exchanged three ounces of marijuana for the firearm in Braintree. He also told the detectives that they had the firearm at his residence and that they tried to hide it prior to the arrival of the Quincy Police officers. In this posture, any error in the admission of the testimony did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
The panelists are listed in order of seniority.