Opinion
16-P-55
03-09-2017
COMMONWEALTH v. Angel E. FIGUEROA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Angel E. Figueroa, appeals from convictions of multiple firearms offenses, negligent operation of a motor vehicle, and child endangerment. The defendant claims that the judge abused his discretion in denying his request for a continuance of the trial, that the clerk's reference to the defendant's "three prior convictions" while reading the indictments to the jury was reversible error, that the evidence was insufficient to prove that he possessed a working firearm, and that the prosecutor's closing argument was improper. We affirm.
Unlawful possession of a firearm, G. L. c. 269, § 10(a ) ; unlawful possession of ammunition, G. L. c. 269, § 10(h )(1) ; and possession or receipt of a firearm with an obliterated serial number, G. L. c. 269, § 11C. Following his jury trial, he pleaded guilty to having committed the G. L. c. 269, § 10, violations after a previous conviction of a violent crime or a serious drug offense, subjecting him to enhanced penalties under G. L. c. 269, § 10G(a ).
Background . We recite the essential facts as the jury could have found them, reserving other facts for later discussion. At 2:10 A.M. on December 16, 2012, Massachusetts State police Trooper Michael Lucas attempted to conduct a motor vehicle stop of the defendant's vehicle driving north on Interstate Highway 91 near the Vermont-Massachusetts border. When Lucas activated his blue and white emergency lights, the defendant "picked up speed and took off." Lucas gave chase, at speeds up to 100 miles per hour. Twice during the chase, Lucas noticed objects being thrown from the passenger's side of the defendant's car. He noted the location where each object was thrown. After "[m]aybe ten minutes" Lucas stopped his pursuit at the Vermont State line.
The defendant was pulled over without incident coming off exit 1 in Vermont. His girlfriend, Kirstin Waterman, was seated in the front passenger seat; their infant son was in the back seat. Waterman told Brattleboro police Sergeant Penny Witherbee that she had thrown a pound of marijuana out the window during the chase. At the defendant's trial, however, she testified that the defendant handed her a gun (not marijuana) during the chase and told her to throw it out the window. She did not look at the gun, which she held for a "couple seconds." She testified that the gun was "consistent" with the gun that had been admitted in evidence, and that she did not see or feel any damage to the firearm before she threw it out the window. At the defendant's request, she took a "sandwich bag" of "little silver bullets" from the center console and threw it out the window.
Waterman testified that she agreed to become a witness for the Commonwealth to avoid a jail sentence.
A broken gun in "tough condition," eight nine-millimeter bullets, a spring, and an empty firearm magazine were recovered from the side of the road where Lucas first noticed an object being thrown from the defendant's car. Black pieces of the handle were also found near the highway guardrail post, which had fresh black scratches on it, "consistent with the black firearm" having hit it. In the condition in which it was recovered, the firearm would not fire.
No evidence was found at the second location.
A State police firearms expert testified at length about the damage to the gun and the efforts he made to restore it to enable it to fire a projectile.
Discussion . 1. Request for a continuance . On the Friday afternoon of the holiday weekend before the trial, Waterman, who had been a codefendant, agreed to testify against the defendant. The Commonwealth and Waterman entered into a written agreement, which was not shown to the jury, that if she "testif[ied] truthfully ... her case would be resolved without incarceration." On the first day of trial, a Tuesday, defense counsel asked for a continuance "to get documents, including [Waterman's] Vermont record, her Massachusetts record, as well as copies of certified convictions." The prosecutor suggested that because Waterman was not scheduled to testify until the third day of trial, and the first two days were scheduled as half days, defense counsel would have time to gather the necessary materials. The judge denied counsel's request.
Waterman's testimony began on the second day of trial, but the judge adjourned the trial after direct examination to give defense counsel additional time to prepare. By the next morning, counsel had been able to obtain a transcript of Waterman's testimony from a trial in the United States District Court in Vermont and documentation of her conviction in that matter.
The judge allowed counsel to use the conviction for impeachment purposes, "dispens[ing] with the certified copy" requirement.
"A judge should grant a continuance only when justice so requires, balancing the requesting party's need for additional time against concerns about inconvenience, cost, potential prejudice, and the burden of the delay on both the parties and the judicial system." Commonwealth v. Ray , 467 Mass. 115, 128 (2014). See Mass.R.Crim.P. 10(a)(1) & (2), 378 Mass. 861 (1979). "We review the denial of a request for a continuance for abuse of discretion," Ray , supra , mindful that "a trial judge may not exercise his discretion in such a way as to impair a defendant's ‘constitutional right to have counsel who has had reasonable opportunity to prepare a defense.’ " Commonwealth v. Miles , 420 Mass. 67, 85 (1995), quoting from Commonwealth v. Souza , 397 Mass. 236, 240 (1986). "[T]here is no ‘mechanical test’ for determining whether the denial of a continuance constitutes an abuse of discretion because we must examine the unique circumstances of each case, particularly the reasons underlying the request." Commonwealth v. Pena , 462 Mass. 183, 190 (2012) (quotation omitted).
Here, despite Waterman's eleventh-hour decision to change her testimony in exchange for sentencing leniency, we see no abuse of discretion, and no prejudice to the defendant, in the judge's decision to deny a continuance. Defense counsel was able to secure the information she needed to conduct an extremely effective cross-examination of Waterman. She elicited evidence that Waterman had testified under oath in a Federal trial in Vermont—under an agreement to testify truthfully in exchange for lenient treatment—that she threw a one-pound bag of marijuana out the window during the car chase. Waterman also admitted on cross-examination that she had violated her Federal probation, that she was prosecuted in Vermont on marijuana charges arising from her arrest in the current case, that the Vermont Department of Children and Families had removed her son from her custody because of her criminal activities and drug use, and that she was angry at the defendant for something having to do with two other women. The defendant has not made any showing that more time would have produced further fodder for cross-examination. In these circumstances, the judge's decision to deny the defendant's motion to continue the trial, and to accommodate defense counsel in other ways, was not "outside the range of reasonable alternatives." L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014).
2. Reference to the defendant's previous convictions . After the jury were empanelled and sworn, the clerk formally read the indictments, beginning with "Count I ... unlawful possession of a firearm." Moving to "Count II," the clerk announced that the defendant was charged with "unlawful possession of a firearm with three prior convictions " (emphasis supplied). Defense counsel immediately objected. The judge sustained the objection and instructed, "The jury will disregard that. That's not part of this indictment. That was a mistake."
The clerk then read the indictments for "unlawful possession of ammunition"; "Count III ... possession or receipt of firearm with obliterated serial number"; "Count IV ... reckless or negligent operation of a motor vehicle"; and "finally, ... indictment for wanton and reckless endangerment of a child."
The defendant argues that the clerk's error requires reversal of his conviction. Because the judge sustained the objection and the defendant did not move for a mistrial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Gonsalves , 74 Mass. App. Ct. 910, 910 (2009).
For errors of this nature, "it is within the trial judge's discretion whether to declare a mistrial." Commonwealth v. Whitlock , 39 Mass. App. Ct. 514, 516 (1995). Here, considering the judge's forceful instruction to the jury immediately after the mistake, and in light of his pertinent statements to the jury pool, his preliminary instructions, and final charge, "[w]e are not persuaded that the defendant was harmed." Commonwealth v. Burkett , 5 Mass. App. Ct. 901, 901 (1977). The clerk's error was not compounded by other errors, as in Whitlock , supra at 518, and Commonwealth v. Williams , 19 Mass. App. Ct. 915, 916 (1984), nor is there any evidence that the jury focused on the improper reference, as in Gonsalves , supra . Accordingly, we are confident that the error did not create a substantial risk of a miscarriage of justice.
"An indictment is not evidence—is no evidence whatsoever that the Defendant is guilty of the crime."
"[A]n indictment is ... a piece of paper. ... It by itself is no evidence of guilt."
"An indictment is not evidence. It is merely a piece of paper.... It is not to be regarded by you as a circumstance tending to incriminate the Defendant, or creating against him any unfavorable impression." The judge then instructed on counts I through V, referring to them by number, in the same order that the clerk had read them. See note 6, supra .
3. Sufficiency of the evidence concerning the firearm . "We review a denial of a motion for a required finding of not guilty to determine whether, viewing the evidence in the light most favorable to the Commonwealth, there is sufficient evidence for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Bruneau , 472 Mass. 510, 518 (2015), citing Commonwealth v. Latimore , 378 Mass. 671, 676-677 (1979). Although "[t]he burden on the Commonwealth in proving that the weapon is a firearm in the statutory sense is not a heavy one," Commonwealth v. Nieves , 43 Mass. App. Ct. 1, 2 (1997), "[a]n essential element of the offense against G. L. c. 269, § 10(a ), is that the firearm ... be a working one." Commonwealth v. Rhodes , 21 Mass. App. Ct. 968, 969 (1986). The defendant claims that the lack of evidence presented on this particular element should have prevented the firearm charge from reaching the jury. Our view of the evidence is to the contrary.
Here, focusing on the condition of the firearm when the defendant possessed it, we think "the Commonwealth present[ed sufficient] competent evidence from which the jury reasonably [could] draw inferences that the weapon [would] fire" at that time. Nieves , supra . Waterman testified that in holding the gun for a couple of seconds, she felt no damage to it and that the gun introduced in evidence at trial was "consistent" with the one she threw out the car window. In addition, from the evidence that the defendant asked Waterman to throw the gun out of the car during the chase, a rational juror could infer that the defendant "feared the police would find [it] during a stop." Commonwealth v. Jefferson , 461 Mass. 821, 826 (2012). See Commonwealth v. Doucette , 408 Mass. 454, 461 (1990) ("Actions and statements that indicate a defendant's consciousness of guilt, together with other evidence, are sufficient to prove his guilt").
We recognize that "a weapon designed for firing projectiles may be so defective or damaged that it has lost its initial character as a firearm." Commonwealth v. Bartholomew , 326 Mass. 218, 220 (1950). However, the question here is not the extent of repairs necessary to make the gun operable, but whether the Commonwealth presented sufficient evidence from which the jury could infer that the gun, in its condition before it was thrown from the car, was operable. See Jefferson , supra (jury could infer that defendant sped off in his car for the purpose of discarding a gun, and that the damage to the gun was caused when the gun hit the ground after being thrown from the car). The damage to the gun from its defenestration during the chase—"a mischievous act designed to outwit the police," Commonwealth v. Tejeda , 89 Mass. App. Ct. 625, 629, further appellate review granted, 475 Mass. 1102 (2016) —did not negate the inference the jury could draw concerning its prior operability. See Jefferson , supra at 828.
4. Jury instructions and the prosecutor's closing . The defendant argues that given Waterman's agreement with the Commonwealth, the judge erred by failing to give a Ciampa instruction. See Commonwealth v. Ciampa , 406 Mass. 257, 263-264 (1989). He claims the error was compounded by the prosecutor's impermissible vouching for Waterman during closing argument. See Commonwealth v. Rivera , 430 Mass. 91, 96 (1999), quoting from Ciampa , supra at 265 ("While a prosecutor remains free to argue that a witness who testifies in exchange for favorable treatment by the government is credible, she may not ‘explicitly or implicitly’ vouch to the jury that she knows the witness's testimony is true"). We address these arguments, raised for the first time on appeal, under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Alphas , 430 Mass. 8, 13 (1999).
No Ciampa instruction was necessary in these circumstances. "When a prosecution witness testifies pursuant to a plea agreement containing a promise to tell the truth, and the jury are aware of the promise , the judge should warn the jury that the government does not know whether the witness is telling the truth" (emphasis supplied). Commonwealth v. Meuse , 423 Mass. 831, 832 (1996). Here, "[t]he prosecutor did not suggest to the jury that [Waterman] had a special obligation to tell the truth pursuant to her agreement with the Commonwealth, and no portion of the written agreement was before the jury." Commonwealth v. Figueroa , 83 Mass. App. Ct. 251, 265 (2013). Furthermore, "[t]he judge fully charged the jury that, in considering whether witnesses were credible, they should consider motive, bias, and interest in the outcome of the case." Commonwealth v. Correia , 65 Mass. App. Ct. 597, 603-604 (2006).
Finally, the defendant claims that the prosecutor improperly vouched for Waterman by stating in closing argument that her testimony had "the ring of truth to it," and "good for her for once, at least at this point in her life, putting herself first, her child first, and saying [defendant], you're on your own. I'm not keeping my mouth shut." However, in context, these statements were proper arguments from the evidence why the jury should credit Waterman's testimony. See Commonwealth v. Murchison , 418 Mass. 58, 60 (1994) ("The credibility of witnesses is obviously a proper subject of comment"); Commonwealth v. Dancy , 75 Mass. App. Ct. 175, 189 (2009), quoting from Commonwealth v. Raposa , 440 Mass. 684, 696 (2004) ("[A] prosecutor may ‘point to reasons why a witness's testimony, or portions of a witness's testimony, should logically be believed’ ").
The "ring of truth" comment referred not to Waterman's testimony in general, but to her specific testimony that she had thrown a bag of bullets out of the window during the chase. The prosecutor argued that the jury should believe this testimony, even though it was not corroborated by any other evidence in the case, because "[i]f this were just one big lie that she was fabricating ... she could have stuck with the marijuana story" and said that the two objects she threw out the window were the gun and the pound of marijuana. The "good for her for once" comment was based on ample evidence, used by defense counsel to attack Waterman's credibility, that Waterman had made many bad decisions in her life. In context, these statements did not suggest outside knowledge and were permissible comments on Waterman's credibility.
In cross-examination, defense counsel played on the same theme, eliciting Waterman's admissions that she cooperated with prosecutors in the Vermont Federal case—where she testified that she threw a pound of marijuana out the window—because she was "turning [her] life around," "wanted to make things right," and was "ready to do the right thing."
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Judgments affirmed.