Opinion
10-P-1804
01-25-2012
COMMONWEALTH v. SEAN BERRY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Convicted of carrying a firearm without a license, possession of ammunition without a firearm identification card, and possession of a loaded firearm, the defendant, Sean Berry, claims he was framed. Specifically, he contends that the police officer who had earlier pat frisked him without finding a weapon falsely claimed to find a gun on his person during booking. He argues that the prosecutor's closing argument improperly bolstered the credibility of the officer, the officer's testimony violated the defendant's right to remain silent, and the burden of proof regarding whether or not he had a license for the firearm must be imposed on the Commonwealth or the statute is unconstitutional. We affirm.
Closing argument. 'A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs.' Commonwealth v. Leach, 73 Mass. App. Ct. 758, 767 n.10 (2009), quoting from Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). A prosecutor may also 'make a fair response to an attack on the credibility of a government witness.' Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). See Commonwealth v. Smith, 404 Mass. 1, 7 (1989). A prosecutor cannot, however, vouch for a witness 'by express[ing] a personal belief in the credibility of a witness,' Commonwealth v. Pearce, 427 Mass. 642, 644 (1998), quoting from Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989), or argue that a witness should be credited 'simply because' the witness is a government official. United States v. Santana-Perez, 619 F.3d 117, 123 (1st Cir. 2010). In reviewing the propriety of the closing argument, we review the remarks in context of the entire argument and the judge's instructions.
In the instant case, the defendant testified that a police officer framed him by attributing an unknown gun to him. Thus he accused the officer of lying and engaging in criminal behavior. The Commonwealth, in its closing, sought to rebut these charges and establish the officer's credibility. It did so in a variety of ways without generating any objection from defense counsel at trial. We therefore review the closing pursuant to a substantial risk of a miscarriage of justice standard.
We recognize that certain aspects of the closing argument directed at the officer's credibility would have been better left unsaid, particularly the prosecutor's reference to the officer's military service and family responsibilities. Nonetheless, the bulk of the closing was a 'fair reply' to the argument of defense counsel that the officer was lying and engaging in criminal activity in order to secure the defendant's conviction. Commonwealth v. Smith, 404 Mass. at 7. See Commonwealth v. Chavis, 415 Mass. at 713-714. The jury were also properly instructed by the judge that argument is not evidence, that they alone decided credibility, and that they were not to be swayed by sympathy or prejudice in their fact finding. In sum, any aspects of the closing that came close to or crossed the line of appropriate closing argument did not rise to the level of presenting a substantial risk of a miscarriage of justice.
We also do not consider the prosecutor's characterization of the officer's testimony in regard to the patfrisks as 'candid' to be harmful vouching here. Although it would have been preferable if the prosecutor had only said that the officer admitted to making the error, without characterizing it as 'candid,' the prosecutor is permitted to 'comment on evidence developed at trial and draw inferences from such evidence.' Commonwealth v. Chavis, 415 Mass. at 713. Describing this particular testimony as candid is a reasonable inference. In any event, we are unpersuaded that the jury would have been swayed by the comment, particularly in light of the judge's statements reminding the jury that they alone decided credibility.
Questioning regarding postarrest silence or statements. The defendant argues that questions posed to the officer who allegedly framed the defendant violated the defendant's right to remain silent. Again there were no objections to these questions or the answers given, so we review them to determine whether they created a substantial risk of a miscarriage of justice.
After the defendant testified and claimed that the officer planted the weapon attributed to the defendant, the Commonwealth recalled the officer in rebuttal. The officer was asked whether he planted the weapon on the defendant, and he denied it. The following exchange then occurred:
Q. 'Did the defendant at the time that this happened . . . did he say anything to anybody else like, 'Oh, my God. I just got framed.'?'Defense counsel then cross-examined the officer as follows:
A. 'No, he didn't.'
Q. 'Did he say to you, 'You just planted that on me.'?'
A. 'I don't recall him saying a single word the entire time. He was quiet.'
Q. 'Officer . . . , you testified that Mr. Berry didn't say anything. Virtually the whole -- he was silent virtually the whole entire time. I mean, he answered the questions, but he wasn't talkative . . . . Isn't it true that he says, 'Are you serious?' when you put that gun on the table?'
A. 'I don't recall that.'
The Commonwealth concedes error in the questioning but argues that there was no substantial risk of a miscarriage of justice. Assuming, without deciding, that there was error, we agree that there was no substantial risk of a miscarriage of justice. The questioning was brief and not revisited in closing argument. Defense counsel's questioning also neutralized some of the impact. Finally, there may have been tactical reasons why defense counsel did not object to the questions as they allowed him to raise the possibility in the jury's mind that the defendant did say, 'Are you serious?' upon the discovery of the gun, without having the defendant cross-examined on this point. The officer did not categorically deny the '[a]re you serious' statement, but rather testified only that he could not recall, thereby presenting some arguable inconsistencies in his responses. Finally, the defendant has not filed a new trial motion, so we are in no position to evaluate defense counsel's tactics or fill in gaps in the record. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) ('an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions'). On the present record, we also do not conclude that the combination of errors relating to the prosecutor's closing and the defendant's silence gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Dwyer, 448 Mass. 122, 138 (2006), citing Commonwealth v. Cancel, 394 Mass. 567, 576 (1985).
The burden of proving firearm licensure. The defendant argues that it is the Commonwealth's burden to prove that the defendant did not have a license, and that requiring him to assert the affirmative defense of licensure violated his rights under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. This argument has, however, been rejected by the Supreme Judicial Court in Commonwealth v. Powell, 459 Mass. 573, 582 (2011), where the court stated:
In his main brief, the defendant also appears to suggest that the licensure requirement under G. L. c. 269, § 10, violates the Second Amendment to the United States Constitution and art. 17 of the Massachusetts Declaration of Rights. In his reply brief, however, the defendant says he 'does not challenge the constitutionality of the licensing statutes.' To the extent he still pursues this argument, it has been rejected by the Supreme Judicial Court in Commonwealth v. Loadholt, 460 Mass. 723 (2011).
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'We repeatedly have held that in prosecutions under G. L. c. 269, § 10(a) and (h), the Commonwealth does not need to present evidence to show that the defendant did not have a license or FID card because the burden is on the defendant under G. L. c. 278, § 7, to come forward with such evidence. . . . In Commonwealth v. Jones, [372 Mass. 403, 406 (1977)], we explained that the absence of a license is not 'an element of the crime' as that phrase is commonly used. We went on to conclude that G. L. c. 278, § 7, did not create an unconstitutional presumption because it did not shift to the defendant the burden of proof on an element of the crime.'(Citations omitted. Footnote omitted.)
Judgments affirmed.
By the Court (Kafker, Cohen & Katzmann, JJ.),