Opinion
14-P-1429
03-24-2016
COMMONWEALTH v. EDWIN DEPEIZA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions after a Superior Court jury trial of unlawful possession of a firearm and carrying a loaded firearm. We affirm.
Background. In the early morning hours of October 7, 2007, Boston police officers in the youth violence strike force received a radio broadcast from operations as a result of a 911 call that provided specific information about a black Volvo station wagon. The officers determined that the vehicle was registered to Marylou DePeiza at 205 Delhi Street. Other police officers, observing the vehicle traveling on Delhi Street, activated lights and sirens. The Volvo pulled over, and Lieutenant Tarantino ordered the driver, who is the defendant, out of the vehicle. The passenger, later identified as the driver's brother, was also ordered out of the car. Lieutenant Tarantino looked inside the vehicle from the driver's side and the passenger's side and observed the pistol grip of a firearm in the pouch behind the front passenger seat. The defendant and his brother were arrested. The police took custody of the firearm, which was a Smith and Wesson semiautomatic .40 caliber pistol, loaded with ten rounds of ammunition. After he was given his Miranda warnings, the defendant told Detective Marrero that he and his brother had found the firearm in front of his house at 205 Delhi Street. The defendant said that his brother had picked up the firearm, and that he (the defendant) grabbed it from him and then put the gun in the rear of the front passenger seat. The defendant said that he and his brother were on their way to the police station to turn in the gun.
We recite the facts as the jury could have found them.
The defendant testified at trial and claimed that he and his brother were en route to the police station to turn in the firearm. He testified that he did not immediately call the police after finding the gun outside of his family's house on 205 Delhi Street, but decided instead to take the gun to the police station "due to the violent crime and tension in [his] neighborhood" and that he wanted to be "as discreet as possible about it." He testified that his neighborhood was "pretty violent at times" and that calling the police could result in "ten cars out in front of your residence, and people outside are paying attention to this." He believed that this could be "seen as cooperating with the police, and whoever might have placed that firearm there could have been watching." The defendant testified that when the police officers pulled him over, they pointed guns to his head as he got out of the vehicle. The defendant did not tell police what happened at that time because everything happened within seconds and because the police were hostile to him.
Discussion. 1. At trial, the defendant requested and received necessity defense instructions. He did not object to the instructions. On appeal, he claims that the jury instructions removed the Commonwealth's burden of proving the absence of necessity beyond a reasonable doubt. Because there was no objection, we consider only whether there was error, and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Robinson, 444 Mass. 102, 105 (2005); Commonwealth v. Sunahara, 455 Mass. 832, 836-837 (2010) ("This determination turns on whether a reasonable juror could have used the instruction incorrectly"), and cases cited. There was no error. The defendant does not find fault with the language of the necessity defense instruction. Rather, he claims that by instructing on the defense before the elements of the charged offenses, the defense was "negated." We disagree. The judge clearly instructed that the Commonwealth had the burden to prove absence of necessity beyond a reasonable doubt. Moreover, the judge explicitly instructed the jury to consider the "whole charge." While the judge could have sequenced her instructions differently, when viewed in the context of the entire charge, we cannot say that she erred in charging the jury on necessity before instructing on the elements of the charged offenses, as the instruction did not remove the Commonwealth's burden. See Commonwealth v. Rosa, 422 Mass. 18, 27 (1996); Commonwealth v. Harris, 464 Mass. 425, 434 (2013). In any event, we conclude that "a reasonable juror could [not] have used the instruction incorrectly." Commonwealth v. Sunahara, 455 Mass. at 836. See id. at 838 (error did not create a substantial likelihood of a miscarriage of justice).
With respect to the instructions, the defendant also notes for the first time on appeal, that the judge erred in stating that "[t]he fourth element that the Commonwealth must prove . . . is that the defendant possessed the firearm while being present in or on his residence" (emphasis added). This error did not create a substantial risk of a miscarriage of justice, as twice the judge repeated that the Commonwealth was required to prove beyond a reasonable doubt that the defendant possessed the weapon outside of his residence or place of business. The instructions must be considered in the context of the entire charge. Commonwealth v. Stokes, 440 Mass. 741, 750 (2004). Moreover, the verdict slip plainly reiterated that the defendant was charged with "Possession of Firearm, Not Home/Work, No License." In short, the jury understood the instructions and the offense that the Commonwealth charged. There was no substantial risk of a miscarriage of justice.
2. The defendant also contends that his convictions should be reversed because the prosecutor argued facts not in evidence and expressed her personal opinion as to the defendant's credibility. There was no objection to the Commonwealth's closing at trial, and we discern no error that would present any substantial risk of a miscarriage of justice. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015). Moreover, the judge thoroughly instructed the jury prior to closing arguments and after closing arguments that closing arguments are not evidence. See Commonwealth v. Choeurn, 446 Mass. 510, 523 (2006).
3. The defendant argues that his trial counsel was ineffective because he did not object to the judge's jury instructions or to the Commonwealth's closing argument. As noted above, the asserted omissions did not create a substantial risk of a miscarriage of justice. There is thus "no basis for an ineffective assistance of counsel claim." Commonwealth v. Curtis, 417 Mass. 619, 625 n.4 (1994).
Judgments affirmed.
By the Court (Cohen, Katzmann & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 24, 2016.