Opinion
No. 11–P–1346.
2012-11-7
COMMONWEALTH v. Licino LOPES.
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, following a two-day jury trial in the Superior Court, of unarmed robbery, assault and battery, assault and battery by means of a dangerous weapon, and assault by means of a dangerous weapon. We affirm.
Discussion. 1. The defendant argues that the Commonwealth improperly elicited prejudicial testimony from the investigating officer during trial. More specifically, he claims that the officer improperly detailed the names and identities of the persons who directed his investigation towards the defendant and improperly testified to the results of photographic arrays that he showed to the victims.
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. Ibid . However, the testimony cannot be admitted for the truth of the statements, but rather only to demonstrate the basis for the officer's knowledge. Id. at 508–509. The defendant mistakenly relies on this court's decision in Commonwealth v. Parkes, 53 Mass.App.Ct. 815 (2002), to suggest that the investigative officer's testimony fell outside the permissible bounds for testimony concerning the state of police knowledge. In Parkes, we determined that police testimony detailing reports of the crime created a substantial risk of a miscarriage of justice. Id. at 817–820. Unlike the situation in Parkes, in this case, from the opening statement through the closing argument, the defense called into question the quality of the police investigation and thus opened the door for the Commonwealth to elicit testimony describing the investigation. In Parkes, we ruled that since the defendant did not contest the basis for his arrest, the police did not need to testify as to the substance of their investigation. Id. at 820. Here, by contrast, the defendant largely based his defense on deficiencies in the police investigation, namely the administration of the photographic arrays. Counsel emphasized that as a result of the delay in conducting the arrays, a local newspaper article, which included a description of the crime and a photograph of the defendant, appeared before the arrays were shown to the victims. The defendant claimed that this article compromised the integrity of the photographic array because one of the victims read it before observing the array.
At trial, the Commonwealth questioned the officer about the investigatory process in order to rebut the defendant's attack on the reliability of the investigation. The officer provided testimony that fell well within the bounds of the “state of police knowledge.” Unlike the officer in Parkes, the officer in this case did not disclose the details of his conversations with the victims and the witnesses. Rather, the officer only testified that he had spoken with these individuals and that as a result of these conversations, he then focused his investigation on the defendant. As the defendant did not object to this testimony, we conclude that the officer's testimony did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
The defendant also claims that his trial counsel's failure to object to the officer's testimony amounted to ineffective assistance of counsel. In order to prevail on an ineffective assistance of counsel claim, a defendant must show (1) that counsel's behavior fell “measurably below” the standard for an ordinary lawyer and (2) that the behavior likely deprived the defendant of a substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When an ineffective assistance of counsel claim is based on a failure to object, “it must be inferable from the record that counsel's failure to object was not simply a reasonable tactical decision.” Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 21 (1986). Because, as we have determined above, the asserted error did not create a substantial risk of a miscarriage of justice, counsel's failure to object to the asserted error would not amount to ineffective assistance of counsel. See Commonwealth v. Haggett, 79 Mass.App.Ct. 167, 174 n. 10 (2011).
In any event, we conclude that counsel's failure to object could very well have been a reasonable tactical decision and was not deficient under Saferian. At trial, counsel argued that the police conducted a shoddy, substandard investigation that resulted in the wrongful arrest of the defendant. Thus, we could conclude that counsel declined to object to the scope and substance of the investigating officer's testimony in order to then cross-examine the officer on the details of his investigation. In fact, while cross-examining the police officer, defense counsel introduced the aforementioned newspaper article in evidence.
2. Twice during his closing argument, the prosecutor referenced the advanced age of one of the victims (seventy-four years old) at the time of the assault. The defendant points out that, at the time of closing, the defendant's age was not relevant to any of the charges before the jury.
He contends that the prosecutor made these references to improperly appeal to the jury's sympathy.
Since one of the victims was seventy-four years old at the time of the crime, the Commonwealth originally charged the defendant with assault by means of a dangerous weapon on a person over sixty in violation of G.L. c. 265, § 15B( a ). However, at a bench conference between the defense's closing argument and the prosecutor's closing, the judge ordered a directed verdict for the defendant on this claim. The prosecutor then immediately gave his closing. The Commonwealth contends that the prosecutor had more or less set his closing remarks in his mind and that it was possible that he inadvertently left in his argument the comments about the victim's age.
As the directed verdict entered after defense counsel's closing argument, we reject the defendant's claim of error based on the prosecutor's references to age in his opening statement.
The case upon which the defendant relies, Commonwealth v. Santiago, 425 Mass. 491 (1997), is readily distinguishable from the instant matter. First, we review under a less rigorous standard of review than the court did in Santiago, supra at 495, 500, because here counsel did not object to the prosecutor's closing argument. Second, this case is factually dissimilar to Santiago in that there the prosecutor referred to the victim's age seven times during his closing, whereas in this case the prosecutor only referred to the victim's age twice during his closing. Finally, the judge in the case at bar, unlike the judge in Santiago, instructed the jury to disregard any appeals by the litigants to the jury's sympathy. Compare the situation in this case with Santiago, supra at 501 (conviction reversed, in part, because of references to victim's age, where trial judge failed to instruct jury to disregard sympathy). In short, the defendant cannot demonstrate that the prosecutor's two references to the victim's age during his closing created a substantial risk of a miscarriage of justice or that defense counsel's failure to object constituted ineffective assistance. See Commonwealth v. Haggett, supra.
Judgments affirmed.