Opinion
16-P-160
06-06-2017
COMMONWEALTH v. Norris A. WALDRON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Norris A. Waldron, appeals from his convictions of possession of a firearm without a license, possession of a loaded firearm without a license, and possession of a class B substance (cocaine), alleging ineffective assistance of his trial counsel, as well as multiple errors by the judge. For the reasons set forth below, we affirm.
Background. We recite the following facts from the trial record, reserving certain facts for a more detailed discussion below. On September 26, 2013, Massachusetts State police Trooper Mark Blanchard was patrolling an area of Chelsea when he observed a white Jaguar automobile. A routine check of the vehicle's license plates revealed that the registered owner had a suspended license, so Trooper Blanchard stopped the vehicle. The trooper approached the driver, who was the vehicle's only occupant, and asked for his license. The driver produced a license, identifying him as the defendant, and told Trooper Blanchard that his license was "expired." The defendant also told the trooper that he was the registered owner of the vehicle. Based on this information, Trooper Blanchard arrested the defendant for driving with a suspended license.
The Commonwealth later dismissed this charge. See Part 2 of the discussion, infra.
After placing the defendant under arrest and before the vehicle was towed, Trooper Blanchard conducted a vehicle inventory search pursuant to State police policy. He observed a black backpack sitting on the vehicle's front passenger seat. A search of that backpack revealed sunglasses, a cellular telephone, a loaded handgun, and two "twists" of a substance later determined to be cocaine. Upon discovering the loaded firearm, Trooper Blanchard asked the defendant if he had a firearm license; the defendant replied in the negative.
Discussion. 1. Ineffective assistance of counsel. The defendant alleges that he was denied the effective assistance of counsel when, during cross-examination of Trooper Blanchard, trial counsel asked the question, "And in the remainder of the vehicle did you find any other firearms or anything that you suspected to be cocaine or any sort of drugs," to which the trooper replied, "There was a partially burnt blunt on the ashtray." The defendant alleges that in doing so, trial counsel alerted the jury to the presence of drugs in the defendant's car and caused the jurors to infer that he had a criminal propensity.
At trial, there was no testimony or explanation as to what Trooper Blanchard meant by the term "blunt." On appeal, the parties have stipulated that the trooper was referring to a marijuana cigarette.
We review claims of ineffective assistance of counsel using the two-prong test first outlined in Commonwealth v. Saferian, 366 Mass. 89 (1974). In order to prevail on a motion for a new trial, the defendant must demonstrate (1) that defense counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) that counsel's conduct was prejudicial in that it "likely deprived the defendant of an otherwise available, substantial ground" of defense. Id. at 96. See Commonwealth v. Peloquin, 437 Mass. 204, 209-210 (2002).
We first note that the defendant's claim of ineffective assistance is before us as part of his direct appeal from his convictions. An ineffective assistance claim asserted in this manner is in its "weakest form" because "it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Id. at 210 n.5. Commonwealth v. Diaz, 448 Mass. 286, 289 (2007). Only in "exceptional" cases will this court review an ineffective assistance claim on direct appeal, and that "narrow" exception occurs only where "the factual basis of the [ineffective assistance] claim appears indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006).
Reasonable trial tactics "do not amount to ineffective assistance unless manifestly unreasonable when undertaken." Commonwealth v. Haley, 413 Mass. 770, 778 (1992). "When the arguably reasoned tactical or strategic judgments of a lawyer are questioned, we do not 'second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty."' Commonwealth v. Johnson, 435 Mass. 113, 133 (2001), quoting from Commonwealth v. Stone, 366 Mass. 506, 517 (1974). Rather, we are "highly deferential" to trial counsel's performance, because there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Commonwealth v. Florentino, 396 Mass. 689, 690 (1986).
Here, the question trial counsel posed to Trooper Blanchard was reasonable in light of the defendant's theory of defense, which was that he did not own the backpack and had no knowledge of its contents. That question was a continuation of a line of questioning in which the defendant's counsel sought to distance the defendant from any indication that he owned or controlled the backpack by attempting to demonstrate that no illegal contraband was found anywhere else, either in the vehicle or on his person. The reference to marijuana was heard only once by the jury, and was not mentioned in either closing argument. Understandably, defense counsel's decision not to move to strike Trooper Blanchard's testimony was reasonable in order not to call attention to that testimony. See Commonwealth v. Despasquale, 86 Mass. App. Ct. 914, 916 (2014). When viewed in light of the other testimony and evidence presented at trial, we cannot say that trial counsel's actions "indisputably" resulted in ineffective assistance. Zinser, supra at 811.
At the time of the defendant's arrest, possession of a small amount of marijuana had been decriminalized, and thus was not a criminal offense. See G. L. c. 94C, § 32L.
2. Testimony on excluded evidence. The defendant next alleges that the prosecutor violated the judge's ruling on the defendant's motion in limine to exclude certain evidence from the trial, by eliciting testimony from Trooper Blanchard that the defendant contends amounted to a contravention of the judge's ruling. The defendant also argues that the judge erred in allowing the challenged testimony. We disagree.
Prior to trial, the defendant moved in limine to exclude evidence of the defendant's suspended license since the prosecution had dismissed that charge. The judge ruled that Trooper Blanchard was allowed to testify that he ran the vehicle's license plates in his computer and learned that the registered owner had a suspended license. The judge also ruled that the trooper could testify that he arrested the defendant, but not why he arrested him. The judge indicated that he might revisit his ruling during trial if circumstances changed.
At trial, on direct examination of Trooper Blanchard, the prosecutor elicited, without objection, that a registration check of the vehicle revealed that its registered owner had a suspended license. Before proceeding further, the prosecutor requested a sidebar in which she informed the judge that she intended to inquire of Trooper Blanchard about the defendant's statements acknowledging that he was the registered owner of the vehicle and that his license was "expired." The prosecutor noted that those statements were not covered by the judge's pretrial ruling. Defense counsel agreed, but objected to the statements being admitted. The judge then allowed Trooper Blanchard to testify that he asked the defendant for his license, and that the defendant produced it and told the trooper it was "expired." Trooper Blanchard also testified that the defendant told him that he was the registered owner of the vehicle. The defendant objected to both statements.
We review evidentiary rulings such as these for an abuse of discretion. Commonwealth v. Torres, 86 Mass. App. Ct. 272, 278 (2014). Only if the judge's decision constitutes "a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives," L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation & citation omitted), will we determine that there was an abuse of discretion.
The testimony elicited by the prosecutor did not violate the judge's pretrial ruling on the defendant's motion in limine. That ruling permitted Trooper Blanchard to testify that his check of the vehicle's license plates revealed that the registered owner of the car had a suspended license, but limited further testimony that the defendant was the registered owner. Before eliciting the challenged statements, the prosecutor alerted the judge about her intentions. Defense counsel indicated that the challenged statements were not part of the motion in limine. The judge then allowed the testimony. This indicates that the judge either revisited his earlier ruling, as he suggested he might, or considered the trooper's testimony a separate evidentiary issue. Regardless of the judge's reasoning, we cannot say that his decision was an abuse of his discretion.
The effect of the challenged testimony was to provide some explanation of the reason for the defendant's arrest. Otherwise, the jury might have speculated as to the circumstances of the arrest, possibly inferring that the defendant was arrested for no reason. See Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 384 (2003) (evidence of contents of 911 call excluded, but limited testimony of nature of call allowed to provide context for police presence and actions).
We also note that Trooper Blanchard testified that the defendant told him that his license was "expired," not suspended. It is highly unlikely that evidence that a person had an expired license would lead a jury to infer that the person was a criminal or a "lawless person," as the defendant suggests.
Furthermore, evidence that the defendant was the registered owner of the vehicle was relevant to connect the defendant to the backpack found on the passenger seat, because such a fact can be probative of constructive possession. See Commonwealth v. Collins, 11 Mass. App. Ct. 583, 586 (1981) (defendant's ownership and operation of his car supported finding that he constructively possessed firearms found inside); Commonwealth v. Romero, 464 Mass. 648, 653-654 (2013) (presence in vehicle alone not enough to support constructive possession; additional evidence necessary). Accordingly, there was no error in the admission of Trooper Blanchard's testimony about the defendant's statements.
Even if we assume that the jury should not have heard evidence that taken together indicated that the defendant was operating on a suspended license, there is no reason to suppose it had any bearing on or caused any prejudice to the defendant with regard to the principal question at trial, namely, whether he had control over the contents of the backpack. See Commonwealth v. Esteves, 429 Mass. 636, 639 (1999). Contrast Commonwealth v. Royal, 89 Mass. App. Ct. 168, 170-173 (2016) (hearsay testimony about status of defendant's license as suspended used to prove an essential element of the crime charged).
3. The prosecutor's closing argument. Finally, the defendant claims that during her closing argument, the prosecutor invited the jury to find facts not in evidence based on their personal habits. Because there was no objection at trial, we review this claim of error to determine whether the remarks created a substantial risk of a miscarriage of justice. Commonwealth v. Madera, 76 Mass. App. Ct. 154, 160 (2010).
The remarks at issue were:
"[You] have a bag. You get into—you walk over to your car. You open the driver door. You sit down, you place this on the passenger seat. You turn on your car. You start driving. I trust that most of you here have either driven a car or been a passenger in a car and have seen that happen routinely. Perhaps you, yourself, have done that.
And why is that? Because that's the natural thing to do. It's a natural thing to do when you have a bag on you. You open your car. You get in the driver's seat. Then you place it on the passenger's seat. What is not natural, is for you to get into your car, see a relatively large backpack on the passenger's seat, and continue to drive. And continue to drive that car. And not just any car, your car, the car that you own. The car that you're used to getting into every day. The car that you know what's generally in it.... And as I mentioned to you, we often put our bags in the passenger seat. Without really realizing it, there's a reason why we do that, because we can reach for it when we're going to step out of the car. Because we can reach for our credit card when we're stopping at Dunkin Donuts to pay for our coffee. Because we can reach the items that are in that bag. That's why we place our bag in the passenger seat."
Because the standards of review for a substantial risk of a miscarriage of justice and the second prong of a claim of ineffective assistance of counsel are equivalent, see Commonwealth v. LaChance, 469 Mass. 854, 858-859 (2014), we need not address the defendant's ineffective assistance claim regarding counsel's failure to object to the prosecutor's remarks, as we conclude that the remarks did not result in a substantial risk of a miscarriage of justice.
A closing argument must be based on the evidence and the fair inferences drawn from the evidence. Commonwealth v. Pettie, 363 Mass. 836, 840 (1973). See also Mass. G. Evid. § 1113(b)(2) (2017). In addition, counsel may ask the jury to use their common sense and to apply their common experience to the evidence, so long as the subject at issue does not require expert knowledge. See Commonwealth v. Jefferson, 461 Mass. 821, 836 (2012) (not improper for prosecutor to argue that firearm thrown from moving vehicle might show signs of damage, as argument was grounded in common sense). Remarks made during closing argument should be considered within the context of the entire argument, the evidence presented during the trial, and the judge's instructions to the jury. See Commonwealth v. Barros, 425 Mass. 572, 581-582 (1997) (strong evidence against defendant combined with judge's instructions that closing arguments are not evidence sufficient to overcome improper remarks made by prosecutor).
The judge cautioned the jury in this case that closing arguments were not evidence and that jurors should rely on their memory of the evidence.
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Here, the prosecutor's remarks were a proper invitation to the jury to use their own common sense and experience when considering the presence of the backpack on the passenger seat of the defendant's vehicle. The prosecutor was specifically responding to defense counsel's closing argument, where he argued that the only evidence against the defendant was that the backpack was found in his car. See Commonwealth v. Anderson, 411 Mass. 279, 286 (1991) (not improper for prosecutor to respond to specific arguments raised by defense). To that effect, the prosecutor asked the jury to use their common sense to infer that the backpack was the defendant's not simply due to its presence in the car, but because its location—the passenger seat—suggested that it was the defendant's, by pointing out that it is common for people to place items they own on the passenger seat when they get into their car. She was not suggesting that the jury find facts not in evidence, such as finding that the defendant drove his car every day, in order to make such an inference. Accordingly, when viewed in context, there was no error in the prosecutor's remarks.
Judgments affirmed.