Opinion
21-P-761
06-23-2022
COMMONWEALTH v. RANDY OGIE.
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
The defendant, Randy Ogie, was convicted by a jury of trafficking in heroin, in violation of G. L. c. 94C, § 32E (c0 (4). After his conviction was affirmed on appeal, he filed a motion for a new trial, which was denied by the trial judge. Subsequently, the defendant filed a second motion for new trial, which also was denied by the trial judge; he now appeals from the order denying his second motion for a new trial. We affirm.
Commonwealth v. Ogie, 8 7 Mass.App.Ct. 1119 (2015).
The order denying the defendant's first motion for a new trial was also affirmed on appeal. See Commonwealth v. Ogie, 92 Mass.App.Ct. 1109 (2017).
Discussion.
1. Standard of review.
"We review the denial of a motion for new trial 'only to determine whether there has been a significant error of law or other abuse of discretion.'" Commonwealth v. Indrisano, 87 Mass.App.Ct. 709, 719 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). In doing so, we "extend[] special deference to the action of a motion judge who was also the trial judge." Indrisano, supra, quoting Commonwealth v. Rosario, 460 Mass. 181, 195 (2011).
We begin our analysis by observing that all of the defendant's claims could have been raised in his direct appeal or in his first motion for a new trial. Accordingly, the claims are waived, and we review them only to determine whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002) .
2. Pressure defense instruction.
The defendant argues that based on the facts presented at trial he was entitled to an instruction on his "pressure" theory of defense. Viewed in the light most favorable to that defense, the evidence at trial revealed that, on July 2, 2012, the defendant answered the door of his girlfriend's house at 22 Rosedale Street, a two-family apartment building in the Dorchester section of Boston, where he was staying, to a man in a FedEx delivery uniform; that man, unbeknownst to the defendant, was an undercover police officer. The purported FedEx worker told the defendant he had a package for Sandra Kevin at 22 Rosedale Street. The defendant confirmed the address but stated that he was not familiar with the name and that nobody with that name lived at that address. The FedEx worker told the defendant multiple times to "just sign for it" and that "anyone can sign for a FedEx package." The worker gave the defendant a clipboard to sign, and the defendant signed for the package thinking that it might be for a neighbor. Immediately thereafter, officers emerged from their surveillance positions and detained the defendant, informing him that the package contained heroin.
The defendant is entitled to a particular instruction only if there is "some basis in evidence, viewed in the light most favorable to the [defense], supporting the requested instruction." Commonwealth v. Anestal, 463 Mass. 655, 674 (2012), quoting Commonwealth v. Cook, 419 Mass. 192, 201 (1994).
At trial, the defendant did not request a "pressure defense" instruction and did not object to the instructions as given. On appeal, the defendant does not point to any legal authority demonstrating the existence of such a pressure defense in the Commonwealth. Nor have we found any. As such, the judge did not err in failing to sua sponte provide an instruction on a theory of defense that was not pursued at trial and was not legally significant to the outcome of the case. See Commonwealth v. Waller, 486 Mass. 72, 75 (2020), quoting Commonwealth v. Norris, 462 Mass. 131, 144 (2012) ("a judge has no obligation to instruct when neither party requests, because doing so may 'interfere[] with the defendants' right to present their chosen defenses'"). See also Commonwealth v. Carey, 463 Mass. 378, 383-386 (2012) (defendant not entitled to instruction on defense that is not legally recognized). We discern no error.
The defendant makes clear in his brief that he is not referring to an entrapment defense instruction. Nor could he successfully argue that the failure to provide him with such an instruction amounted to a substantial risk of a miscarriage of justice, as that claim was addressed by the panel who decided the defendant's appeal from the denial of his first motion for a new trial. See Ogie, 92 Mass.App.Ct. 1109. See also Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005) (defendant is barred from seeking review of claims "actually litigated" and decided against him).
3. Missing element of crime.
The defendant additionally argues that the Commonwealth failed to prove that he trafficked heroin "by bringing [it] into the [C]ommonwealth," and that the judge similarly erred in failing to instruct the jury on this element. The argument wholly lacks merit. General Laws c. 94C, § 32E (c0, is disjunctive and sets forth three different theories under which a defendant may be convicted of trafficking in heroin: (1) manufacturing, distributing, or dispensing a net weight of eighteen grams or more of heroin; (2) possessing with intent to manufacture, distribute, or dispense a net weight of eighteen grams or more of heroin; and (3) by bringing into the Commonwealth a net weight of eighteen grams or more of heroin. See Commonwealth v. Roman, 414 Mass. 642, 644 (1993). At trial, the Commonwealth proceeded under the theory that the defendant possessed heroin with the intent to distribute it. The prosecution was thus not required to prove that the defendant brought heroin into the Commonwealth, and the judge was not required to provide an instruction on that theory. See, e.g., Commonwealth v. Jiles, 428 Mass. 66, 70 (1998) (where Commonwealth proceeded exclusively under theory of deliberate premeditation, judge did not instruct on first degree murder committed with extreme atrocity and cruelty). There was no error.
4. Warrantless entry and search.
The defendant next claims that, because he was detained at the time he provided the officers with consent to enter and search the apartment, and because he was not aware of his right to refuse consent, his consent was involuntary, and the officers' entry and search of the apartment was unlawful. Significantly, as the motion judge observed, "the only evidence seized from the apartment was [the defendant's] cell phone, which was never used, directly or indirectly, in the prosecution of the case." To be sure, "[u]nder what has become known as the 'fruit of the poisonous tree' doctrine, the exclusionary rule bars the use of evidence derived from an unconstitutional search or seizure." Commonwealth v. Fredericq, 482 Mass. 70, 78 (2019). In this case, however, even if we were to conclude that the entry and search of the apartment were unlawful, the evidence arising from those acts was not used at trial. As a result, the exclusionary rule is inapplicable, and the judge properly rejected this claim.
5. Prosecutor's closing argument.
The defendant also asserts that the prosecutor made inflammatory and improper statements during closing argument. Specifically, he argues that, when referencing his interaction with the FedEx worker, it was improper for the prosecutor to state the following:
"He's trying to convey to the FedEx guy, yeah, yeah, yeah, don't worry about it. I've got it. Just give me the package. She's not home. I can do it. Sandra Kevin. Yeah, yeah, yeah, she's not home. [Par.JAnd his actions manifest what is going on in his head because then as [Sergeant] Dean [LeVangie] told you he reaches out and he takes the package from him. Just give me the package. Just give me the $45,000 worth of drugs. Just give me my prize."
We agree with the motion judge that the argument was properly based in the evidence at trial and the reasonable inferences drawn therefrom. Sergeant Dean LeVangie of the Massachusetts State Police -- the officer who posed as the FedEx worker -- testified that, when he told the defendant he had a package for Sandra Kevin and asked if that person was the defendant, the defendant responded, "No. She's not home," but stated that he was authorized to sign for the package and took the package from the officer's hands. We do not agree with the defendant that such statements were overly inflammatory. "[A] prosecutor may argue 'forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.'" Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018), quoting Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Again, there was no error, and certainly no substantial risk of a miscarriage of justice.
6. Ineffective assistance of trial and appellate counsel.
The defendant claims that trial counsel was ineffective in a multitude of ways at trial. None of these claims require extended discussion. Suffice it to say that the judge concluded that the defendant failed to make a credible factual showing of trial counsel's strategy for the contested behavior and failed to demonstrate that any of counsel's strategic decisions were manifestly unreasonable when made. See Commonwealth v. Johnson, 435 Mass. 113, 133 (2001). The judge thus determined that the defendant failed to meet his burden to show that trial counsel's representation amounted to ineffective assistance. See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004) ("A defendant's submissions in support of a motion for a new trial . . . must contain sufficient credible information to cast doubt on the issue [quotation omitted]"). See also Commonwealth v. Watson, 455 Mass. 246, 256 (2009) ("mere speculation, without more, is insufficient to establish ineffective representation"). We discern no abuse of discretion.
Specifically, the defendant argues that trial counsel was ineffective for failing to investigate, failing to request an instruction on his defense, failing to challenge the admission of certain evidence, failing to object at the appropriate time, failing to impeach the officers' testimony, colluding with the Commonwealth, abandoning a viable defense, and conceding the imposition of a minimum mandatory sentence without presenting mitigating circumstances.
The defendant also claims that counsel who represented him on direct appeal was ineffective for conceding that the defendant knew what was inside the FedEx package. Appellate counsel made no such concession. Rather, appellate counsel conceded that the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove that the defendant knew that the package contained heroin. As the panel who decided the defendant's direct appeal noted, "the concession was not unwarranted." Commonwealth v. Ogie, 87 Mass.App.Ct. 1119, slip op. at 1 (2015). The defendant's second motion for a new trial was properly denied.
Order denying second motion for new trial affirmed.
The panelists are listed in order of seniority.