Opinion
No. 12–P–518.
2013-07-12
COMMONWEALTH v. Robert F. OHANESIAN.
By the Court (VUONO, RUBIN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of distribution of cocaine and an accompanying school zone offense. On appeal, the defendant argues that (1) two statements made by the prosecutor during his opening to the jury warrant reversal of his convictions, and (2) the Commonwealth's evidence was insufficient to prove beyond a reasonable doubt that he distributed cocaine. We affirm.
At trial, the defendant stipulated to the fact that the location of the alleged offense of distribution was within 1,000 feet of the Burlington High School.
1. Opening statement. During the prosecutor's opening statement, the prosecutor essentially told the jury that Burlington police Detective Paul Glejzer, based on a tip from a confidential informant, had set up surveillance at a location where the defendant allegedly would be selling cocaine. The defendant did not object, but the judge called a side bar conference, sua sponte, to discuss the comment. The judge then gave a curative instruction to the jury . The prosecutor also told the jury that it would “hear evidence” that the defendant had been identified by Detective Glejzer “from a past experience.” As with the first challenged statement, there was no objection. This time, however, the judge did not interrupt the opening to give a separate curative instruction. Even though he did not object, the defendant now claims that the comments were unduly prejudicial and that a new trial is required. We disagree. While both comments were better left unsaid, the judge's instructions were sufficient to avert a substantial risk of miscarriage of justice. See Commonwealth v. Olivares, 30 Mass.App.Ct. 596, 601–602 (1991).
“Ladies and gentleman, I'm going to instruct you to disregard the information about what someone else may have told the police detective, that's not admissible evidence in this Court, so I'm going to instruct you to disregard that part of the opening statement.”
“As I said, the opening statements of the lawyers are not evidence, it is the testimony of the witnesses that's evidence, but with that instruction, we'll continue....”
2. Motion for required finding of not guilty. The evidence, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), permitted the jury to find the following facts. At about 3 P.M. on February 11, 2010, Detective Glejzer was parked in front of an autobody shop in Burlington in an unmarked police vehicle when he observed a gray Pontiac enter a parking lot located across the street. There were two individuals in the car and Detective Glejzer observed the defendant in the passenger seat with the window down. Moments later, Detective Glejzer noticed a man, later identified as Ryan Demore, approach the passenger side of the Pontiac where the defendant was sitting. Demore looked around, reached into his back pocket, pulled out “a quantity of ... cash,” and gave it to the defendant through the window opening. The defendant then handed something to Demore, who placed the object into his front left pocket and walked into a nearby shop. Detective Glejzer followed Demore into the shop and, after identifying himself as a police officer, said, “[Y]ou know why I'm here,” to which Demore replied, “[Y]es, I do.” Demore then retrieved a small glassine bag containing, what was later determined to be, cocaine from his front left pocket and handed it to the detective. Meanwhile, the Pontiac had driven away and was not stopped by the police.
The defendant does not dispute the identity of the substance as cocaine.
The jury did not hear any evidence relating to the circumstances of the defendant's arrest.
The circumstances presented here are similar to those we considered in Commonwealth v. Soto, 45 Mass.App.Ct. 109 (1998). In that case, officers on surveillance duty watched as a woman parked her Ford automobile in front of a house known for drug activity. Id. at 110. About fifteen minutes later, the defendant drove up in a Chevrolet Camaro and parked immediately behind the Ford. Ibid. The woman, who had remained in her car, immediately signaled with her tail lights and began to drive away with the defendant following. Ibid. Both drivers stopped their cars on a side street approximately one block from where they were originally stopped. Ibid. The defendant left her car, quickly reached inside the driver's window of the Ford, went back to her own car, and drove away. Ibid. The observing officers did not see any drugs or money change hands, but after the defendant had driven away, the officers followed and stopped the woman, who when confronted, produced a plastic bag of cocaine from her bra. Id. at 110–111. On this evidence, we concluded that a rational jury properly could have inferred beyond a reasonable doubt that a drug transaction had taken place and that the defendant was the seller, rather than the buyer. Id. at 111–112.
Here, as in Soto, the jury could have reasonably inferred beyond a reasonable doubt that a hand-to-hand drug transaction between Demore and the defendant had occurred. The defendant's reliance on Commonwealth v. Rodriguez, 456 Mass. 578 (2010), is misplaced. In that case, the alleged drug transaction occurred inside of a building beyond the view of any witnesses. Id. at 580. Thus, the court concluded that a rational jury could not have found the defendant guilty of distribution beyond a reasonable doubt. Id. at 582–583. By contrast, the hand-to-hand transaction at issue in this case was witnessed by Detective Glejzer, who then retrieved cocaine from the person he observed participating in the exchange within moments of its occurrence.
Judgments affirmed.