Opinion
15-P-1353
06-26-2017
COMMONWEALTH v. Rafael E. RAMIREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his convictions of unlawful possession of a firearm and unlawful possession of a loaded firearm. He argues errors in the admission of police testimony about a 911 call, in the prosecutor's closing argument, and in the admission of a ballistics certificate through a witness who had not signed it. He also appeals an order denying his postconviction motion for an inquiry into alleged juror bias and extraneous influences on the jury. Finally, he seeks a new trial on the ground that the inability to reconstruct missing portions of the trial transcript has deprived him of his right to an effective appeal. We affirm.
On the charges of disorderly conduct and of discharging a firearm within 500 feet of a building, the judge entered required findings of not guilty at the close of the Commonwealth's case.
The defendant raises this argument on appeal; he did not file a motion for new trial in the trial court.
Background. We recite the facts as the jury could have found them, reserving certain details for later discussion. On July 8, 2013, at about 2:00 A.M. , the Lawrence police department received a 911 call reporting shots fired, and an officer was dispatched to the reported location, a high-crime area. A few minutes later, the police received a similar 911 call from a nearby location, this time giving a description of the male suspect. Officer Michael Colantuoni was among those dispatched. While driving his marked cruiser along nearby streets, Colantuoni saw a male walking on the sidewalk, "matching the description that [he] was given" and later identified as the defendant. Colantuoni saw no one else on the street or porches at the time, in what was a closely packed, normally-lit residential area.
After radioing dispatch to report that he had "a possible suspect in sight," Colantuoni got out of his cruiser and called out to the defendant, "Hey, hold up a sec." The defendant turned, made eye contact, put his hand to his waistband, and then quickly turned and began walking away. Given the nature of the 911 call, Colantuoni was concerned by the defendant's hand movement because, he testified, the waistband is "the general area where people carry firearms." The defendant looked back over his shoulder at Colantuoni, who called out to him a second time, at which point the defendant began to run away. Colantuoni gave chase on foot and radioed for backup.
The defendant ran into a back yard and climbed over a tall fence into another back yard. Colantuoni lost sight of him for a few seconds. As Colantuoni neared the fence, the defendant fell, hit the ground on the other side, and began to get up. Colantuoni climbed over the fence and likewise fell. Colantuoni caught up to the defendant, ordered him to the ground, and handcuffed him. A patfrisk found no weapons. The chase had lasted approximately one minute.
By this time, backup officers had arrived, so two officers stayed with the defendant while Colantuoni and others, including Sergeant John Nicoletti, retraced the route of the chase. When they reached the area where the defendant had fallen after climbing over the fence, Colantuoni, using his flashlight, discovered a loaded .40 caliber handgun on the ground. The defendant was arrested. No additional calls for shots fired were received that night. Several officers involved testified that in their years of experience with the Lawrence police department, they had never before found a loaded gun lying in a back yard without having been specifically called to the scene for that reason.
Discussion. 1. Testimony regarding 911 call. Before trial the Commonwealth moved in limine to permit police witnesses to testify about the 911 shots-fired calls, for the permissible nonhearsay purpose of showing their state of mind, i.e., why they responded to the area and focused on the defendant. See Commonwealth v. Rosario, 430 Mass. 505, 508-510 (1999). Over the defendant's objections on confrontation clause and hearsay grounds, the judge allowed the motion, specifically ruling that the prosecution could elicit that the defendant matched the description given by the second 911 caller. The judge stated his intention to give a limiting instruction that the jury could consider the evidence as proof only of the officers' state of mind and not that the defendant possessed a firearm or fired shots.
Colantuoni then testified at trial that he had spotted and identified as a suspect a male "matching the description that [he] was given" from the 911 call. The defendant did not renew his objection. The judge's final instructions to the jury cautioned that the testimony "about a dispatch to police officers to respond to a location for shots fired" was "not evidence that shots were actually fired." The jury were instructed that they could
"consider that evidence for the limited purpose of what the police officers' state of mind was when they arrived on the scene and what caused them or impelled them to act the way they are [sic ]. So it goes to the state of mind, not to prove the actual fact that shots were fired."
On appeal, the defendant argues that the testimony that he matched the caller's description went beyond what is permitted by Rosario. That decision requires a party to minimize disclosure of the substance of the out-of-court declarant's statement to the police, because of its "high probability of misuse." 430 Mass. at 509. More limited testimony, e.g., that "an officer acted ‘upon information received,’ or ‘as a consequence of a conversation,’ or words to that effect—without further detail—[will] satisfy the purpose of explaining police conduct." Id. at 510, quoting from Commonwealth v. Perez, 27 Mass. App. Ct. 550, 554-555 (1989). See Commonwealth v. Jones, 477 Mass. 307, 328 (2017). Testimony that exceeds these limits may constitute inadmissible hearsay and violate the "confrontation guarantees of the State and Federal Constitutions." Rosario, 430 Mass. at 511.
a. Confrontation clause claim. Assuming that the defendant's objection to the motion in limine was sufficient to preserve his confrontation clause claim, see Commonwealth v. Grady, 474 Mass. 715, 718-719 (2016), we nevertheless conclude that the claim fails. Although the record does not contain a recording or transcript of the 911 call, the caller's apparently contemporaneous statements reporting shots fired and describing the suspect were not testimonial but instead were made for the nontestimonial "primary purpose of ... enabl[ing] the police to respond to an ongoing emergency," and thus their indirect admission through Colantuoni did not violate the defendant's rights under the Sixth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of rights to confront the witnesses against him. Commonwealth v. Middlemiss, 465 Mass. 627, 632-633 (2013). See Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 323-324 (2016). An ongoing emergency includes situations, like this one, "where the dispatched police officers responding to the scene may be at risk from an armed assailant ... or where an armed assailant poses a substantial risk to the public at large." Commonwealth v. Beatrice, 460 Mass 255, 260 (2011).
b. Hearsay claim. The defendant did not preserve his hearsay claim, because he failed to renew his objection to the motion in limine by objecting at trial. We therefore review for whether any error in admitting the evidence created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
At the time of the trial in this case, even where an evidentiary issue not implicating constitutional concerns was raised in a motion in limine, a party was required to renew his objection at trial in order to preserve the issue for appeal. See Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998), overruled prospectively by Grady, 474 Mass. at 718-719. See also Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 441 n.21 (2016).
We conclude that although the description-match testimony exceeded the limits recognized in Rosario, 430 Mass. at 507-511, there was no substantial risk of a miscarriage of justice. Even without this testimony, the Commonwealth's case, although circumstantial, was more than merely sufficient. The defendant's reaching toward his waistband, his sudden flight indicating consciousness of guilt, and especially the discovery of a loaded handgun in the very spot where the defendant fell during the pursuit, together with evidence that the defendant was the only civilian seen on the streets at the time and that after his arrest there were no further reports of shots fired that evening, all combine to provide ample evidence of the defendant's guilt. The erroneously admitted testimony was very brief and was not repeated in the prosecutor's closing argument. It was the subject of a forceful limiting instruction, which, without unnecessarily repeating the description-match testimony itself, told the jury that they could consider the testimony about the 911 call only to explain why the police went to the scene and why they acted as they did when they arrived, "not [as] evidence that shots were actually fired." "[W]e are persuaded that [the erroneous admission of that testimony] did not ‘materially influence[ ]’ the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
Our conclusion that there was no such risk also takes into account the defendant's other claims of error, which we reject, infra. Compare Commonwealth v. Cancel, 394 Mass. 567, 576 (1985).
See Commonwealth v. Sykes, 449 Mass. 308, 315 (2007) (defendant's clenching waistband while fleeing police in high-crime area contributed to reasonable suspicion of criminal activity); Commonwealth v. Leslie, 477 Mass. 48, 50 n.6 (2017) (grabbing at waist "can indicate that an individual possesses a firearm without a holster"). See also Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 46-47 (2002) ; Commonwealth v. Monteiro, 71 Mass. App. Ct. 477, 479-480 (2008).
In his closing, the prosecutor stated that when police responded to the 911 calls of shots fired, "[t]hey focus on the defendant because of information they have but let's be clear, he's the only person they see out there." The reference to "information they have" was proper under Rosario, 430 Mass. at 510 ; moreover, the prosecutor immediately suggested that the more important reason for focusing on the defendant was that he was the only one spotted in the neighborhood at the time.
2. Prosecutor's closing argument. As there is no indication that the defendant objected at trial to any aspect of the prosecutor's closing argument, we review the defendant's claims to determine whether any errors created a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). "[T]he cumulative effect of all the errors must be considered in the context of the arguments and the case as a whole." Commonwealth v. Niemic, 472 Mass. 665, 673 (2015) (quotation omitted).
We decline the defendant's request—based on the fact that a sidebar discussion occurring after the prosecution's closing argument could not be transcribed—to assume that trial counsel objected to the prosecutor's closing and therefore to review for prejudicial error. Because of transcription problems, the parties entered into a stipulation, which reconstructed some of what occurred at the postclosing sidebar, including statements by the judge. In approving the stipulation, the judge stated that he had consulted his trial notes and had nothing to add. We think it highly likely that, had trial counsel made any objections to the prosecutor's closing, the judge would have responded in some way, and those responses, like his other statements at that sidebar, would have been audible. We also note that trial counsel's affidavit recounting his recollection regarding a juror bias issue, discussed infra, did not assert that he had objected to any aspect of the prosecutor's closing. And at a hearing on reconstructing the record, appellate counsel reported to the trial judge that trial counsel was willing to file an affidavit stating that he had no specific memory of what occurred during any of the inaudible portions of the trial recordings. In these circumstances, we are unwilling to assume that trial counsel made any objection to the prosecutor's closing. See Commonwealth v. Sheffield, 16 Mass. App. Ct. 342, 349 (1983) (notwithstanding missing transcript, "[i]t seems to us that ... if the prosecutor had made any significantly improper argument, defense trial counsel would have recalled it").
The defendant first challenges the prosecutor's use of the word "we" in the following passage:
"Then there were three witnesses today. Just to be perfectly clear, we called them, we subpoenaed them, we brought them in here today, we asked the questions. We did that so you know that we do complete investigations."
The prosecutor, responding to criticisms of the investigation in the defense closing, was referring to testimony from a State trooper and two scientists from the State police crime laboratory, the substance of which was that despite their efforts, no useful fingerprint or DNA evidence could be obtained from the firearm or the ammunition recovered in this case. The prosecutor's use of the word "we" did not express any opinion as to the credibility of those witnesses, nor did he align himself with the jury, as in Commonwealth v. Burts, 68 Mass. App. Ct. 684, 688-689 (2007). Nor did the argument "invite the jury to rely on the prestige of the government and its agents rather than the jury's own evaluation of the evidence," as in United States v. Torres-Galindo, 206 F.3d 136, 142 (1st Cir. 2000). Nor would the jury have understood the remark as calling attention to the defendant's failure to offer any evidence. There was no error.
As to the defendant's next claim, the Commonwealth concedes that the prosecutor came close to commenting on the defendant's failure to testify when he argued that after Colantuoni called out to the defendant, "[t]he only testimony we've heard today, the only evidence we have during this entire trial is that the defendant turned and looked directly at the officer, seeming to make eye contact." This bit of rhetorical excess did not, however, create a substantial risk of a miscarriage of justice, as the reference was a "fleeting comment, not likely to influence, or even to seize the attention of the jury." Commonwealth v. Springer, 49 Mass. App. Ct. 469, 478 (2000) (quotation omitted). "Moreover, the judge properly instructed the jury not to draw any inference from the defendant's failure to testify, and that closing arguments of counsel were not evidence." Id. at 478.
Next the defendant challenges the following statements in the prosecutor's closing:
"The facts of this case happened in the real world. It happened in a real town—Lawrence, Massachusetts. It happened in a real neighborhood, where there are real families who are in fear of real gunfire at two in the morning.
"And in the real world, in Lawrence, like everywhere else, guns don't fall from the sky. Guns don't grow on trees in people's back yards.... There are not fully-loaded handguns with a round in the chamber ... that you'll trip over as you're walking around. That is not the real world."
The defendant asserts that the reference to "real families who are in fear of real gunfire" went beyond the evidence to inflame the passions and arouse the sympathies of the jury and to imply that they had to do justice for the community of Lawrence. Although the defendant is correct that there was no direct evidence of families in fear—only testimony about two 911 calls reporting shots fired—we are not persuaded that the remarks had the unfairly prejudicial effect the defendant ascribes to them. The phrase in question was part of a response to defense counsel's argument "that that gun was put there by someone but we don't know who." The phrase may have been improper, compare Commonwealth v. Wallace, 45 Mass. App. Ct. 930, 931 (1998), but considering it in the context of the entire argument, which went carefully through the evidence step by step, we see no substantial risk that the jury would have been improperly swayed. "A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed." Kozec, 399 Mass. at 517.
Finally, the defendant claims that the prosecutor "told the jury that [they] had a duty to convict and avenge." We disagree. The prosecutor argued that the defendant, who in fleeing the police had "tried to run to avoid the consequences of his actions" and tried to hide the gun during the few seconds he was out of Colantuoni's sight, should not be allowed to keep running and hiding but should be found guilty. We do not see in these words any improper implication that the jury had any duty to convict or to avenge any wrong. Nor was there error in the prosecutor's argument that the jury should return the "only true and just verdict," i.e., guilty; the Supreme Judicial Court has said that a virtually identical phrase "amounted to a fair comment on the strength of the Commonwealth's case and constituted appropriate advocacy." Commonwealth v. Cole, 473 Mass. 317, 333 (2015).
3. Ballistics certificate. The Commonwealth rightly concedes that the admission of a ballistics certificate through a witness who did not sign it violated the confrontation clause. Because the defendant did not raise the issue below, we review for whether the defendant's lack of opportunity to confront and cross-examine the certificate's signer created a substantial risk of a miscarriage of justice. We conclude that it did not.
We reject the defendant's claim that a confrontation clause objection at trial would have been futile, and that we should thus apply the more exacting harmless beyond a reasonable doubt standard. The defendant's reliance for this proposition on Commonwealth v. Vasquez, 456 Mass. 350, 355-356 (2010), is misplaced. Unlike in Vasquez, in this case the applicability of the confrontation clause to a crime laboratory certificate of the type at issue was well established at the time of trial. See id. at 351-352. See also Commonwealth v. Brown, 75 Mass. App. Ct. 361, 363 (2009), decided six years before the trial in this case.
The certificate documented the successful test firing of the firearm and ammunition at issue, as well as the firearm's barrel length. Because the State trooper who signed the certificate had retired before trial, it was admitted through another witness, Trooper Glenn Cote. But Cote also testified that he himself had witnessed the test firing and had determined the barrel length.
The certificate was thus entirely cumulative of the testimony of Cote, whom defense counsel had a full opportunity to cross-examine. Counsel did not question Cote about any of the information conveyed by the certificate. The defense theory was not that the firearm or ammunition were inoperable (indeed, the defendant conceded operability), or that the firearm's barrel length placed it outside of the relevant statute, but that the defendant had never possessed the firearm or ammunition in the first place.
4. Juror bias and extraneous influences on jury. We also reject the defendant's challenge to the denial of his posttrial motion for an inquiry into (1) a juror's alleged bias and (2) the possibility that the juror had brought extraneous information to bear on the jury's deliberations. The defendant had maintained a Facebook account under an assumed name and—three years prior to trial—had become Facebook "friends" with, and had an extremely brief, thirteen-word online exchange with, a woman who later was seated on the jury. In his posttrial affidavit, the defendant stated that he had felt the juror staring at him during the trial, that he later remembered her first name, that at some unspecified time prior to trial they had attended the same social events on several occasions, and that she had dated an unnamed friend of his. He mentioned this issue to trial counsel after trial, as counsel's affidavit confirmed. See note 7, supra. Appellate counsel then filed a motion for an inquiry into this juror's possible bias and her possible communication of extraneous information to the other jurors. The motion judge, who was also the trial judge, denied the motion on the ground that the defendant had not made a colorable showing to warrant further inquiry of the juror in question or any of the other jurors.
Trial counsel's affidavit specifically recounted his memory that the defendant mentioned the juror issue to him after trial, but is conspicuously silent about it having been raised any earlier. We therefore dismiss as unfounded speculation the defendant's argument on appeal that the inability to transcribe certain sidebar discussions with potential jurors has hindered his ability to present his argument as to this juror's alleged bias. Compare Sheffield, 16 Mass. App. Ct. at 349 (notwithstanding missing transcript, "[i]t seems to us that, if the ... trial judge had committed any error of moment ... defense trial counsel would have recalled it").
As to the claim of juror bias, to warrant a postverdict inquiry, the defendant must first make "the requisite showing of juror bias." Commonwealth v. Guisti, 434 Mass. 245, 253 (2001). Here we see no error or abuse of discretion in the judge's conclusion that the defendant made no such showing. The defendant's postconviction motion and supporting affidavits contained no indication whatsoever that the juror in question had any bias against the defendant. He did not claim that she had any unfavorable view of him, or why she might. In denying the motion, the judge stated that the juror in question had not raised any concern during empanelment, when members of the venire were asked if they knew the defendant. He also noted that the defendant raised no concern until after the jury's guilty verdict and his sentencing.
As to the separate claim that the juror may have brought extraneous information to bear on the jury's deliberations, the judge had "broad discretion" to determine whether a hearing was warranted, and no duty to investigate unless the defendant first made "a colorable showing that an extrinsic influence may have had an impact upon the jury's impartiality." Commonwealth v. Dixon, 395 Mass. 149, 151-152 (1985). See Commonwealth v. Fidler, 377 Mass. 192, 203 (1979). "In other words, there must be something more than mere speculation." Dixon, 395 Mass. at 152 (quotation omitted). Whether the defendant has made such a showing is likewise "addressed to the discretion of the trial judge." Ibid. Here, because the postconviction motion and supporting affidavits contain nothing more than speculation, the judge did not abuse his discretion in denying the motion.
5. Missing portions of trial transcript. Finally, we reject the defendant's claim that the inability to transcribe certain portions of the trial has deprived him of his right to an effective appeal and therefore entitles him to a new trial. See note 7, supra.
If a defendant believes that missing portions of the transcript are material to his appeal, it is his "burden to settle the record as provided in Mass.R.A.P. 8(c) and (e)." Commonwealth v. Woody, 429 Mass. 95, 98 (1999). See id. at 98 n.4 ; Mass.R.A.P. 8(b)(3)(v), as appearing in 388 Mass. 1106 (1983). The procedure described in Commonwealth v. Harris, 376 Mass. 74, 79-80 (1978), then controls. See Commonwealth v. Sheffield, 16 Mass. App. Ct. 342, 348-349 (1983).
Here, once the defendant exhausted his efforts without fully reconstructing the transcript, he neither moved for a new trial on the ground that the record could not be "sufficiently reconstructed," Harris, 376 Mass. at 79, nor sought a determination that the partially reconstructed record was not "adequate to present any errors [he] alleged." Id. at 80. See Sheffield, 16 Mass. App. Ct. at 348-349. Instead, he affirmatively and successfully moved for an order "stating that those portions of the record cannot be reconstructed so that [the defendant] can proceed with his appeal." He cannot now reverse course and seek a new trial on the ground that proceeding based on the incomplete record does not "provide[ ] adequate appellate review." Harris, 376 Mass. at 80. See Sheffield, 16 Mass. App. Ct. at 348-349.
We have already rejected the defendant's claims of prejudice regarding possible unrecorded objections to the prosecutor's closing argument, see note 7, supra, and possible voir dire responses of the allegedly biased juror. See note 9, supra. The defendant's further claim that an indiscernible sidebar discussion following the judge's final charge to the jury makes it impossible to determine whether he objected to any of the judge's instructions, is belied by a paragraph in the parties' posttrial stipulation agreeing that neither party made any such objections.
Finally, the defendant engages in unfounded and illogical speculation in arguing that the failure to record the direct and cross-examinations of Sergeant Nicoletti makes it impossible to determine if Nicoletti repeated Colantuoni's erroneously admitted description-match testimony. See part 1, supra. Colantuoni testified that Nicoletti and several other officers did not arrive on the scene until after he (Colantuoni) had placed the defendant in handcuffs. There would have been no reason for the prosecutor to ask Nicoletti why he focused on the defendant.
In sum, the record is adequate for the defendant to present and us to rule upon his specific claims of error. Compare Woody, 429 Mass. at 99. The defendant's speculation that errors might lurk in the missing portions of the transcript, particularly the sidebar discussions during jury empanelment, is insufficient. See Sheffield, 16 Mass. App. Ct. at 349.
In this vein, we further note that trial counsel stated after empanelment that he was "[a]bsolutely" content with the jury. If counsel had any remaining concerns, that was the time to express them. Compare Anderson-Mole v. University of Mass., 49 Mass. App. Ct. 723, 725-726 (2000).
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Conclusion. We affirm the judgments, as well as the order denying the defendant's postconviction motion for an inquiry into alleged juror bias and extraneous influences on the jury.
So ordered.
Affirmed.