Opinion
15-P-766
03-24-2017
COMMONWEALTH v. Lysander WRIGHT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Lysander Wright, appeals from his conviction of sexual conduct for a fee, in violation of G. L. c. 272, § 53A(b ). The defendant makes several challenges on appeal, which he alleges require that he be granted a new trial. We affirm.
Background . On March 28, 2013, between 8:00 P.M. and 4:00 A.M. , the Lynn police department conducted an antiprostitution sting operation. An officer, Kelly Aylward, posed as a decoy prostitute and walked along Union Street until prospective Johns indicated an interest in engaging in sexual conduct for money. Officer Aylward wore an electronic monitoring device so that she could remain in contact with Lieutenant Peter Holey, the officer in charge of the operation. Three other officers, including Detective Richard Fucci, were parked nearby in unmarked cruisers for surveillance and to arrest the Johns at Lieutenant Holey's command.
Officer Aylward was dressed in sweatpants or jeans, and applied oil to her hair to appear unkempt and disheveled.
Around midnight, Officer Aylward noticed the defendant give her a head nod as he drove past her on Union Street in a black Toyota Camry automobile. The defendant turned on Pinkham Street and pulled to the side of the road. Officer Aylward walked toward the defendant's car, opened his passenger's side door, and asked, "Are you looking for some company?" The defendant said yes, instructed her to get in his vehicle, and asked her how much she "charge[d]." Officer Aylward stated that "it would be $20 for oral sex" but refrained from getting in the vehicle. The defendant replied, "[no] problem," and that "he had plenty of money on him." He then asked her again to get in his vehicle. She repeated, "I want $20 for oral sex." The defendant told Officer Aylward to get in the vehicle and that he didn't want to continue the conversation while she was outside of the car.
The defendant provided a different account of the events that occurred. He testified that when he saw Officer Aylward walking on Union Street, she appeared distressed and he asked her, "are you okay?" When Officer Aylward started walking toward him, he rolled down his window and asked her again if she was okay. She then began pulling on his passenger's side door. The defendant thought that she could not hear him, so he unlocked the door and asked her for a third time if she was okay. Officer Aylward said to him, "You got $20? You got $20 for a blow job? Come on, man, give me $20." The defendant testified that he told her "no" repeatedly and asked her to close his door.
The defendant then began to move a plastic bag and other items that were on his front seat to the back seat of his car to make room for Officer Aylward to sit. He also had a long "PVC" pipe in his car, running from the front passenger's side floorboard to the rear driver's side window.
At this time, Officer Aylward signaled to the officers on surveillance to move in and arrest the defendant, and began to walk away from the defendant's car. Lieutenant Holey saw the signal and instructed the officers to move in. As Officer Fucci approached the defendant, the defendant exited his vehicle and stated, "If she said that I offered her twenty dollars for a blowjob, she's lying."
The defendant was wearing police uniform pants and shoes, as well as a windbreaker that said "Boston Police." He identified himself as a police officer, stating that he was "on the job," and said that his service weapon was in his back waistband. The defendant was arrested, and Officer Aylward conferred with Lieutenant Holey so that Lieutenant Holey could write a report of the incident.
Discussion . 1. Cross-examination . The defendant argues that the prosecutor's cross-examination of the defendant impermissibly shifted the Commonwealth's evidentiary burden to the defendant by asking him why he did not call the plumber as a witness at trial. The defendant did not object; therefore, we review under the substantial risk of a miscarriage of justice standard. Commonwealth v. Rivera , 425 Mass. 633, 637 (1997).
The defendant testified that he bought the PVC pipes and other supplies at the request of his plumber, who was working on renovations to the defendant's house.
As a general rule, a "prosecutor ... cannot make statements that shift the burden of proof from the Commonwealth to the defendant." Commonwealth v. Amirault , 404 Mass. 221, 240 (1989). "[A] prosecutor shifts the burden of proof when ... she calls the jury's attention to the defendant's failure to call a witness ... [which] signal[s] to the jury that the defendant has an affirmative duty to bring forth evidence of his innocence, thereby lessening the Commonwealth's burden to prove every element of a crime." Commonwealth v. Tu Trinh , 458 Mass. 776, 787 (2011).
Here, the prosecutor did not engage in burden shifting. During cross-examination, the prosecutor asked the defendant if he "ha[d] ever spoken to [the plumber] about this upcoming trial." The defendant then stated, in a nonresponsive answer to the prosecutor's question, "[n]o, not to ask him to come or anything like that." Further, the prosecutor's line of questioning was in response to the defendant's direct examination testimony that the reason that the defendant was on Union Street was to leave a note for his plumber's assistant, who lived on Pinkham Place. See Commonwealth v. Miranda , 458 Mass. 100, 116 (2010) ("It is not improper for counsel to respond to arguments raised by the defense"); Commonwealth v. Cassidy , 470 Mass. 201, 226 (2014) ("A prosecutor, however, is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case" [quotation omitted] ). Thus, in reviewing the record, we are persuaded that "on balance, the prosecutor's remarks constituted permissible commentary on the strength of the Commonwealth's case, which did not cross over into burden shifting." Commonwealth v. Johnson , 463 Mass. 95, 113 (2012).
The prosecutor's line of questioning went as follows:
Q .: "You just testified that he's still your plumber, right?"
A .: "He's been my plumber for years, ma'am, yes."
Q .: "Okay. Where is he today? Do you know?"
A . "I have no idea where he is right now."
Q .: "Okay. Have you ever spoken to him about this upcoming trial?"
A .: "No, not to ask him to come or anything like that, no."
However, even assuming that the prosecutor's questioning was error, there was no substantial risk of a miscarriage of justice in this case because the testimony went to a collateral matter. Officer Aylward acknowledged that there were plumbing materials in the defendant's car, and the prosecutor did not mention the defendant's failure to call the plumber as a witness in her closing argument. See Commonwealth v. Azar , 435 Mass. 675, 686 (2002). See also Commonwealth v. Barbosa , 463 Mass. 116, 125 (2012).
2. Closing argument . The defendant raises three objections to the prosecutor's closing argument. We determine whether a prosecutor's statements made during closing argument require a new trial by considering: "(1) whether the defendant seasonably objected; (2) the judge's instructions to the jury; (3) the centrality of the error; (4) the jury's ability to sort out excessive claims by the Commonwealth; and (5) the strength of the Commonwealth's case." Commonwealth v. Ruiz , 442 Mass. 826, 835 (2004). "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman , 453 Mass. 331, 343 (2009).
As to the defendant's first argument, we agree that the prosecutor's statement that Officer Aylward remembered the defendant's arrest because she read Lieutenant Holey's report was improper because it was unsupported by the record. See Commonwealth v. Cole , 473 Mass. 317, 333 (2015), quoting from Commonwealth v. Kelly , 417 Mass. 266, 270 (1994) ("A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence"). Indeed, Officer Aylward testified that the defendant's arrest was "quite memorable" to her because "[h]e was a Boston police officer." See Commonwealth v. Silva-Santiago , 453 Mass. 782, 806 (2009).
While the defendant's objections to the prosecutor's closing statement is largely indiscernible from the record, the nature of his objections is apparent through the judge's findings. The judge noted that defense counsel objected on the grounds that the prosecutor "had misstated the evidence." Therefore, the objection to this statement is preserved.
However, the prosecutor's misstatement did not create a prejudicial error in this case. Here, the defendant has not shown how this statement bolstered Officer Aylward's credibility where the prosecutor acknowledged in closing argument that Officer Aylward remembered the arrest because the defendant "was a fellow officer," and the judge gave careful limiting instructions to the jury closely following the prosecutor's closing statement. , See Ruiz , supra ; Commonwealth v. Cabral , 69 Mass. App. Ct. 68, 75-76 (2007).
The judge instructed the jury as follows:
"A question put to a witness is never evidence. Only the answers are evidence. ... The opening statements and the closing arguments of the lawyers are not a substitute for the evidence. ... If your memory of the testimony differs from the attorneys' or mine, you are to follow your own recollection."
The judge denied the defendant's request for a curative instruction because of the "repetition" in the instructions that he was about to give, which was "minutes from" his ruling on the defendant's objections.
The defendant also argues that the prosecutor improperly suggested that the defendant was in uniform at the time of his arrest and that the defendant should have identified himself as a police officer to Officer Aylward to deter her from interacting with him. However, the prosecutor's statements were proper as they were grounded in the evidence presented at trial, and permissibly "attempt[ed] to assist the jury in their task of analyzing, evaluating, and applying the evidence." Commonwealth v. Burgess , 450 Mass. 422, 437 (2008) (quotation omitted). See Commonwealth v. Siny Van Tran , 460 Mass. 535, 555 (2011) ("Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed" [quotation omitted] ). Therefore no prejudice resulted. See Commonwealth v. Mitchell , 428 Mass. 852, 857 (1999) ("The jury are presumed to recognize that the prosecutor is an advocate, not a witness"); Commonwealth v. Lodge , 431 Mass. 461, 471 (2000), quoting from Commonwealth v. Kozec , 399 Mass. 514, 517 (1987) ("[I]nstructions from the judge inform the jury that closing argument is not evidence").
This objection is also preserved. See note 5, supra .
Both Detective Fucci and Officer Aylward testified that the defendant was wearing uniform pants and shoes. The defendant also testified that he changed into his uniform before going to his detail.
The defendant's third objection to the prosecutor's closing argument was not preserved. We agree with the defendant that the prosecutor's statement that the defendant had "participated in stings" cannot be reasonably inferred from his testimony that he has an "understanding of stings." See Cole , 473 Mass. at 333. However, such an error does not rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph , 438 Mass. 290, 297 (2002). Whether the jury believed that the defendant would recognize Officer Aylward as a decoy prostitute because he had "participated in stings" is collateral to the issue of whether the defendant agreed to pay Officer Aylward for sexual conduct. Further, the judge provided limiting instructions to the jury shortly after the prosecutor's closing statement. See Ruiz , supra ; Cabral , supra .
3. Motion for new trial . a. Ineffective assistance of counsel . A judge may grant a new trial "at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). We review a judge's ruling on a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo , 446 Mass. 435, 441 (2006). "We give special deference to the decisions of a judge who was, as here, the trial judge." Commonwealth v. Murphy , 442 Mass. 485, 499 (2004).
The defendant makes several arguments contending that his trial attorney deprived him of the effective assistance of counsel. In order to establish an ineffective assistance of counsel claim, the defendant must show that his counsel's "conduct falls ‘below that which might be expected from an ordinary fallible lawyer’ and prejudices the defendant by depriving him ‘of an otherwise available, substantial ground of defence.’ " Commonwealth v. Lavoie , 464 Mass. 83, 89 (2013), quoting from Commonwealth v. Saferian , 366 Mass. 89, 96 (1974). We agree with the judge here that "the [defendant's] allegations ... are neither substantial nor supported by a substantial showing." See L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014) (considering whether "judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" [quotation omitted] ).
The defendant argues that the judge failed to consider whether it was manifestly unreasonable for trial counsel to conduct only a limited investigation into the evidence that the defendant provided him prior to trial. To the contrary, the judge's decision states that "[t]he defendant's right to effective assistance of counsel does not include the right to introduce irrelevant and speculative evidence" or "the right ... to substitute his strategy for the reasonable strategic choices of trial counsel." See Commonwealth v. Epps , 474 Mass. 743, 758 (2016) ("The extent of [counsel's] investigation required to explore each potential defense depends on the strength of that defense relative to the availability and strength of other potential defenses").
i. Failure to consult with the defendant . The defendant argues that he was deprived of the effective assistance of counsel because his trial attorney did not consult with him, "a dark-skinned black man," before agreeing to move his case from Lynn District Court to Peabody District Court, an allegedly "predominantly white" town. The defendant, however, fails to provide a showing of how this transfer "deprived him of a substantial basis for defense," because the potential juror pools for trials conducted in Lynn and Peabody are derived from the same master list of all potential jurors within Essex County. G. L. c. 234A, §§ 2, 16.
The defendant also takes issue with trial counsel's decision to waive his opening statement. However, "[w]aiving an opening statement is a reasonable tactical decision, particularly where ... as appears to have been the case here, counsel is unsure whether the defendant will choose to testify." Commonwealth v. Williams , 450 Mass. 879, 889 (2008). Here, not only does the record indicate uncertainty as to whether the defendant would testify at trial, but the judge also instructed the jury prior to opening statements that defense counsel has the discretion to choose to make an opening statement "since the burden of proof is on the Commonwealth."
ii. Hearsay of "Johns ." The defendant argues that his counsel was ineffective by failing to introduce evidence that the defendant gave him concerning other Johns that were arrested as part of the Lynn police prostitution sting operation. This evidence was comprised of the defendant's own hearsay accounts of interviews that the defendant conducted with some of the other Johns. The defendant alleges that these men described the incidents of their arrest in a similar manner to the defendant's version, namely that Officer Aylward was "aggressive." However, the defendant's argument fails because he does not provide a substantial showing that these other Johns would testify or that if they were to testify, they would do so as the defendant claims. See Commonwealth v. Morales , 453 Mass. 40, 49 (2009). See also Commonwealth v. Alvarez , 62 Mass. App. Ct. 866, 870 (2005).
The defendant used his friends to act as interpreters for some of the Johns that he interviewed.
Indeed, prior to the defendant's trial, two of the three Johns mentioned in the defendant's brief admitted to sufficient facts in the cases against them, and the other was required to complete community service before his case was dismissed.
iii. Evidence of bias and motive to lie . The defendant argues that he should be granted a new trial because his trial counsel failed to offer evidence of bias and motive to lie when cross-examining the officers.
"Generally, the mere failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Correia , 65 Mass. App. Ct. 597, 604 (2006). First, the defendant's argument that Officer Aylward had a potential motive to lie as a result of her alleged "demot[ion] to a patrol officer" fails because it is unsupported by the record. Second, the defendant contends that his trial counsel erred by not offering evidence that Lieutenant Holey and Officer Christopher Haggerty were biased against him because of "criminal acts committed by [the defendant's] brother, who was well known to the Lynn police department." This allegation, however, does not rise to an ineffective assistance of counsel claim because such evidence might have tainted the defendant in the eyes of the jury by associating him with his brother's criminality. See Commonwealth v. Hall , 48 Mass. App. Ct. 727, 733 (2000). See also Commonwealth v. Garvin , 456 Mass. 778, 795-796 (2010).
The defendant also has not shown how trial counsel's failure to impeach through the Lynn police department's "Operations Plan" for the antiprostitution sting and the Daily Item news article, which allegedly demonstrate the police officers' aggressive tactics in executing the sting operation, amounted to ineffective assistance of counsel or resulted in prejudice to the defendant where Officer Aylward testified that the goal of the operation was to "deter individuals from coming in [to Lynn] to pick up prostitutes."
iv. Other corroborating evidence . The defendant argues that he should be granted a new trial because his trial counsel failed to introduce other corroborating evidence.
The defendant fails to allege proper grounds on appeal to support his contention that his trial counsel's "less than one page" cross-examination of Detective Fucci was ineffective. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Commonwealth v. Springer , 49 Mass. App. Ct. 469, 477 (2000).
However, an "ineffective assistance [of counsel claim] is not established simply by showing that trial counsel failed to offer certain evidence." Commonwealth v. Medina , 20 Mass. App. Ct. 258, 261 (1985). As the judge reasoned, "[m]uch of the defendant's catalogue of complaints rests on evidence that was neither relevant nor admissible at trial—certainly without the requisite foundation." Specifically, much of the evidence would have been used to prove or corroborate the defendant's timeline and purchases that were not meaningfully at issue. Also, we cannot say that it was manifestly unreasonable for trial counsel to forgo introducing evidence that the defendant only had seven dollars on his person, despite Officer Aylward's testimony that he agreed to pay twenty dollars for sexual conduct. Indeed, the defendant's affidavit alleges that trial counsel was attempting to avoid opening the door to evidence that may have been damaging to the defendant's case. Therefore, we find no abuse of discretion. See Commonwealth v. Britt , 465 Mass. 87, 93-95 (2013).
The judge properly concluded that the defendant's prior good deeds would constitute habit evidence and would not be admissible to prove that the defendant acted "in conformity with the habit on a particular occasion." Mass. G. Evid. 406(b) (2016).
Before the sting operation, a prostitute reported to the police that a black man, posing as a police officer, had picked her up, driven her to a location where she performed oral sex on him, and without paying her, threatened her to get out of his car before he arrested her. The judge ruled, before trial commenced, that this evidence would be excluded in the Commonwealth's direct case, but reserved ruling on its admissibility for use on rebuttal.
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b. Evidentiary hearing . The defendant argues that the judge abused his discretion by not conducting an evidentiary hearing on his motion for new trial. However, an evidentiary hearing is not necessary where "no substantial issue is raised by the [defendant's] motion [for new trial] or affidavits." Commonwealth v. Candelario , 446 Mass. 847, 858 (2006).
In determining whether to conduct an evidentiary hearing, a "judge considers the seriousness of the issue asserted as well as the adequacy of the defendant's showing with respect to the issue." Ibid . In light of the weaknesses in the defendant's arguments, as previously discussed, the judge did not abuse his discretion in finding that "the defendant has failed to raise a substantial issue necessitating a hearing." See id . at 859 ("If, on the papers presented, the basis of the motion is not ‘credible’ or ‘persuasive,’ an evidentiary hearing accomplishes nothing). See Murphy , 442 Mass. at 499.
Judgment affirmed.
Order denying motion for new trial affirmed.