Opinion
15-P-1005
04-13-2017
COMMONWEALTH v. Douglas KEITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in Superior Court, the defendant was convicted of trafficking in a controlled substance with a weight of more than twenty-eight, but less than one hundred, grams in violation of G. L. c. 94C, § 32E. He subsequently moved for a new trial, which motion was denied by the same judge who had presided at his trial. His direct appeal is consolidated with his appeal from an order denying his motion for a new trial. The defendant essentially raises five issues on appeal (1) ineffective assistance of counsel, (2) admission of improper prejudicial evidence, (3) denial of his motion for mistrial, (4) improper closing argument by the prosecutor, and (5) a cumulative error claim. We affirm.
Background facts. We summarize the relevant facts as the jury could have found them, reserving some for later discussion.
In February, 2012, United States Postal Inspector John Stassi began investigating an "odd" "pattern of repeat deliveries" to 59 Rice Street in Marlborough. Shortly thereafter, he intercepted one such package addressed to the defendant, "Doug Keith," with a return label that read "D. Shaldon" and an address in Jupiter, Florida. Inspector Stassi arranged for a drug-sniffing dog to determine whether the package contained narcotics. Following an affirmative alert from the dog, officers applied for and were granted an anticipatory search warrant to trigger upon delivery of the package.
On February 10, 2012, Inspector Stassi hand-delivered the package to the defendant at 59 Rice Street. The defendant identified himself to Inspector Stassi as "Doug Keith" and took the package inside. Within minutes of the delivery, law enforcement officers executed the search warrant. The defendant was the only person inside the house at the time and led the officers to a second-floor closet where he removed the opened package from a bin. He told them he was holding it for a friend named "Dawn."
The package contained 310 oxycodone tablets in one bottle, made by three different manufacturers and 123 oxymorphone tablets in a second bottle. Also found inside was a handwritten note which read, "Billy, I am sending these ahead of me because I do not want to travel with them. Please hold them and keep them safe. See you soon. Love you, Dawn."
The defendant identified "Billy" to the officers as "Billy Phillips." The defendant was then placed under arrest. The officers recovered six more oxycodone and oxymorphone tablets from a jewelry box in a bedroom and two diazepam tablets from a car parked in the driveway. They also seized a BlackBerry cellular telephone (cell phone) which contained text messages that were introduced at trial. The text messages at issue were sent by a contact identified in the cell phone as "Billy Phillips."
The text message exchange is as follows:
2/10/12 at 8:22 p.m. : "Just tracked it. Is finally showing tomorrow, so I should be coming tomorrow."
2/10/12 at 9:47 p.m. : "So, S-H."
2/10/12 at 10:15 p.m. : "Hey, dude. She is flying up instead of driving. Now her back is all fucked up from epidurals. I ain't going to be around on Monday, so you may have to meet up if I can't do, let me know. Can she crash there until I get back from work? I will to talk to you tomorrow bro."
Discussion. 1. Ineffective assistance of counsel. In his brief on appeal, the defendant first argues that the judge erred in denying his motion for a new trial based on a claim of ineffective assistance of counsel. A motion for a new trial is granted only where "it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Our examination of the judge's denial turns on "whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Wright, 469 Mass. 447, 461 (2014) (citations omitted). Notably, "appellate courts accord substantial deference to the trial judge's favorable evaluation of a trial counsel's performance." Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 493 (1998).
a. Suppression of text messages. The defendant claims his counsel was ineffective in failing to move to suppress the text messages extracted from the seized cell phone under the theory that the search warrant authorized only the seizure of the cell phone and the supporting affidavit did not provide probable cause to permit a search of its contents.
Trial counsel unsuccessfully argued a motion to suppress the fruits of the search and seizure authorized by the search warrant, including the cell phone. However, no specific claim was made in support of suppressing its contents based on this argument.
Where a defendant claims that counsel was ineffective in failing to file a motion to suppress, he "must show that the motion to suppress would have presented a viable claim and that 'there was a reasonable possibility that the verdict would have been different without the excludable evidence.' " Commonwealth v. Segovia, 53 Mass. App. Ct. 184, 190 (2001), quoting from Commonwealth v. Pena, 31 Mass. App. Ct. 201, 205 (1991). "It is not enough for the defendant to show that [counsel's] errors had some conceivable effect on the outcome of the proceeding. ... Not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." Commonwealth v. Amirault, 424 Mass. 618, 652 (1997), quoting from Strickland v. Washington, 466 U.S. 668, 693 (1984).
Here, the judge who ruled on the motion for a new trial also presided over the trial. In his denial of the motion for a new trial, he concluded that a motion to suppress the text messages based on the defendant's above argument would not have been viable. He further found that the text messages were "largely inconsequential, if not vaguely exculpatory."
We agree with the judge that the text messages were cumulative and consistent with the note found in the package and the statement the defendant made during the search in which he identified "Billy" as "Billy Phillips." As the judge stated, the text messages "were not necessary to associate the defendant with Dawn or Billy. The defendant did that himself when he answered the questions put to him by the officer executing the warrant." Furthermore, as stated by trial counsel in his affidavit, the text messages actually supported the defense's theory at trial that the defendant was merely helping out a friend, as opposed to dealing drugs within an illicit distribution scheme.
We need not reach the merits whether a properly argued motion to suppress would have been viable because based on the cumulative nature of the texts and consistency with the defense's theory presented at trial, we agree with the judge that the defendant cannot show "a reasonable possibility that the verdict would have been different" had the text messages been suppressed. Segovia, supra.
b. Suppression of booking statement. While he did not raise it in his motion for a new trial, we turn next to the defendant's claim that counsel was ineffective in failing to move to suppress his statement that he resided at 59 Rice Street made during booking, after invoking his right to counsel. See Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994) ("A claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction when the factual basis of the claim appears indisputably on the trial record").
Under the "routine booking question" exception, routine background questions asked during booking that are intended to establish an arrestee's identity fall outside the scope of Miranda warnings. See Pennsylvania v. Muniz, 496 U.S. 582, 601-602 (1990) ; Commonwealth v. Woods, 419 Mass. 366, 372-373 (1995). Accordingly, because the defendant has failed to show that a motion to suppress his statement given in response to a routine booking question would have been viable, his trial counsel was not ineffective. See Segovia, 53 Mass. App. Ct. at 190.
2. Admission of text messages. The defendant argues that the text messages were not properly authenticated and the judge's limiting instruction on the purpose for which they could be considered was also improper.
At trial the judge asked, "My assumption is, ... that the question here is not whether the [text] messages were appropriately recovered from the telephone. They are there. The question is whether the texts themselves are admissible; is that correct?" Defense counsel responded in the affirmative.
Because the defendant did not object to the admission of the text messages on these grounds or to the limiting instruction, we review any error for a substantial risk of a miscarriage of justice. Commonwealth v. Almele, 474 Mass. 1017, 1019 (2016). In order to constitute such a risk, the error must "materially influence the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (citation omitted).
In authentication matters, "[t]he role of the trial judge in jury cases is to determine whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be." Commonwealth v. Purdy, 459 Mass. 442, 447 (2011), quoting from Brodin & Avery, Massachusetts Evidence § 9.2, at 580 (8th ed. 2007).
Here, the judge allowed the Commonwealth to introduce the text messages not for the truth of their content, but for the limited purpose of showing the defendant's knowledge of the package's expected delivery. Therefore, the relevance and admissibility of the text messages depended on their relationship to the delivery of the package as well as their receipt by the defendant. In determining whether this evidence is properly authenticated, a judge "may look to 'confirming circumstances' that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be." Purdy, supra at 448–449. See Mass. G. Evid. § 901(b)(11) (2017).
The judge admitted the text messages "to show that these messages were received on the telephone that was recovered from [the defendant's] home."
Here, the cell phone containing the text messages was seized at 59 Rice Street, where the defendant resided and was the only one present at the time of seizure. As discussed, the text messages were consistent with the note found in the package. Finally, the text messages indicated they were from "Billy Phillips," the same name the defendant gave the officers when asked who "Billy" referred to in the note. These facts constitute the confirming circumstances necessary to conclude the text messages were received by the defendant and concerned the seized package. Accordingly, there was no error in their authentication or admission.
The judge also did not err in his limiting instruction. The jury were instructed that they could consider the "information as evidence that somebody sent that particular message, but" not "as proof of whatever that person was saying in that message." The judge also gave an example of this concept. Contrary to the defendant's claim, the instruction did not presuppose that Billy Phillips authored the text messages. Instead, it properly allowed the jury to view the existence of the text messages in the context of the confirming circumstances and arrive at the conclusion that the defendant received information relating to the package's delivery.
Even were we to assume error in the admission of the text messages or in the limiting instruction, we discern no substantial risk of a miscarriage of justice. Again, as stated by the judge, in the context of the entire case the text messages were "largely inconsequential, if not vaguely exculpatory." Thus, they did not "materially influence the guilty verdict." Alphas, 430 Mass. at 13.
3. Admission of Inspector Stassi's testimony. a. Prior deliveries. The defendant argues that the judge erred in allowing Inspector Stassi's testimony about prior packages delivered to the defendant because it was irrelevant and unfairly prejudicial evidence of "prior bad acts."
During his consideration of a motion in limine, the judge determined testimony regarding the previous deliveries was relevant and stated Inspector Stassi "will be able to testify that it's what caused him to get the [drug-sniffing dog] with respect to the last [package]." At trial, Inspector Stassi described the pattern of prior deliveries that "looked a little odd" and "warranted further investigation." This included numerous overnight deliveries, all addressed to the defendant at 59 Rice Street, with return addresses from different individuals in Florida but appearing to be in the same handwriting. We review this evidentiary ruling for an abuse of discretion. Commonwealth v. Torres, 86 Mass. App. Ct. 272, 278-280 (2014).
We acknowledge "[t]he prosecution may not introduce evidence of the defendant's prior misconduct for the purpose of showing that he has a bad character or the propensity to commit the crime charged." Commonwealth v. Cruz, 456 Mass. 741, 751 (2010). However, "[e]vidence otherwise relevant is not rendered inadmissible merely because it may indicate that the defendant had committed another offense." Commonwealth v. Titus, 32 Mass. App. Ct. 216, 225 (1992). Furthermore, an "investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct." Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting from McCormick, Evidence § 249, at 734 (3d ed. 1984).
Inspector Stassi's testimony about prior deliveries was not offered to show the defendant's bad character or criminal propensity. Rather, Inspector Stassi's observations explained the reason for the ongoing investigation that led to the seizure of the package. As the judge explained, this was relevant to show that "it wasn't a random knock at the door but rather [a] police investigation of suspicious, seemingly suspicious [activity]." Inspector Stassi did not testify that the prior deliveries contained narcotics or opine on the defendant's guilt based on these deliveries. Accordingly, we discern no abuse of discretion in the judge's allowance of the testimony regarding the prior deliveries.
As the judge further noted when considering the motion in limine, "it's certainly fair game for cross-examination that [Inspector Stassi] has no idea what was in the other packages." Defense counsel, however, did not cross-examine Inspector Stassi on this issue.
Even were we to assume error in the allowance of Inspector Stassi's testimony about handwriting or the significance of Florida as the origin of the packages, there was no prejudice to the defendant because these statements "did not influence the jury or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). These were observations merely used to show why the seized package was under suspicion, and their accuracy was not an issue before the jury. See Cohen, supra.
b. Third-party interest. The defendant argues Inspector Stassi's testimony that "an individual in Hopkinton ... was interested in the delivery status of this package" was in error. Because the defendant failed to preserve this error, we review for a substantial risk of a miscarriage of justice. Almele, 474 Mass. at 1019.
While the defendant objected to the prosecutor's question that elicited the improper response, he nonetheless failed to preserve the issue by moving to strike. See Almele, 474 Mass. at 1019.
At this point, the jury had been properly presented with evidence, including most significantly, through the note found inside the package, that at least two individuals other than the defendant had an interest in the package. This, along with the amount of and types of narcotics in the package, was enough for the jury to reasonably conclude that the defendant intended to distribute them. See Commonwealth v. Roman, 414 Mass. 642, 643-644 (1993). Accordingly, a single reference to the possible involvement of a third person did not "materially influence the guilty verdict." Alphas, 430 Mass. at 13.
4. Doyle violation. The defendant argues that the judge erred in denying a motion for a mistrial following Agent Roberto's testimony that the defendant requested counsel after he was Mirandized. The grant or denial of a mistrial is in the discretion of the judge. Commonwealth v. Kilburn, 426 Mass. 31, 37 (1997). While it is clear that Agent Roberto's testimony was improper, we must further determine whether it was harmless beyond a reasonable doubt. See Doyle v. Ohio, 426 U.S. 610, 619 (1976) ; Commonwealth v. Farley, 432 Mass. 153, 158 (2000). See Commonwealth v. Tyree, 455 Mass. 676, 700 (2010) (violations of constitutional rights constitute reversible error unless "harmless beyond a reasonable doubt").
In making this determination, this court considers several factors. See Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983). Most importantly for our purposes, "[w]here the evidence is not used against the accused, there is no Doyle violation." Commonwealth v. Thad T., 59 Mass. App. Ct. 497, 504 (2003).
Here, there was a single, isolated statement, and "at no time did the Commonwealth use ... [the] response either as evidence of guilt or to impeach" the defendant at trial. Commonwealth v. Ferreira, 381 Mass. 306, 314 (1980). Furthermore, the judge asked the defendant if he wanted a curative instruction, but he declined. See Commonwealth v. Waite, 422 Mass. 792, 799-800 (1996) ("We perceive no error in the judge's decision simply to uphold the objection and call no further attention to the problem by way of a curative instruction"). Therefore, the improper testimony was harmless beyond a reasonable doubt, and thus there was no error in the judge's denial of the motion for a mistrial.
At oral argument, the defendant argued that counsel's failure to request a curative instruction amounted to ineffective assistance. The preferred method of raising this issue is through a motion for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). Nonetheless, the record reflects defense counsel's reasonable determination that a curative instruction would only serve to highlight the improper testimony. "A defense counsel's strategic decisions do not amount to ineffective assistance of counsel unless they are 'manifestly unreasonable.' " Commonwealth v. Bousquet, 407 Mass. 854, 863-864 (1990). Foregoing a curative instruction here was not manifestly unreasonable.
5. Closing argument. The defendant contends that the prosecutor made improper statements during closing argument by arguing facts not in evidence and improperly appealing to the jury's emotions. Because there was no objection, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Jones, 471 Mass. 138, 148 (2015).
a. Facts not in evidence. The defendant claims the prosecutor's references to Billy Phillips amounted to impermissible inferences based on facts not in evidence.
The statements are the following: "Billy Phillips was in on it. This defendant and Billy Phillips were in on it. Billy Phillips is nearby" and "[t]his is a scheme. This is a scheme designed to benefit this defendant. This is a scheme that's designed to benefit this Billy Phillips person."
"Prosecutors may not refer to facts not in evidence.... 'A prosecutor may, however, in closing argument, analyze the evidence and suggest what reasonable inferences the jury should draw from that evidence.' " Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015), quoting from Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992).
Here, the references to "Billy Phillips" and his connection to the alleged drug distribution were reasonable inferences supported by the evidence. This included the note addressed to "Billy" found inside the seized package addressed to the defendant and containing more than 400 narcotics tablets, the defendant's statement to police during the search, and the text messages. We recognize that based on the judge's evidentiary ruling, the prosecutor was not permitted to suggest inferences drawn from the truth of the text messages' content. However, the prosecutor did not, nor did she need to, use their truth to suggest Billy Phillips's connection. Instead, the evidence suggesting the text messages were received on the defendant's cell phone, were sent by a contact named "Billy Phillips," and concerned the delivery of the seized package, was enough to support the inference that a person named "Billy Phillips" had an interest in the package, was presumably "nearby," and would somehow benefit therefrom.
b. Emotional appeal. The prosecutor stated during closing that the defendant "wants you to be confused" and "when you're evaluating all of the evidence, it's not unreasonable doubt. It's not these magical fairy type defenses where they're trying to distract you and say oh, no, no, no, no. Let's look at the fact that there's a third floor to this house-unreasonable." The defendant argues this was an impermissible attempt to evoke an emotional response against him.
A prosecutor may "comment on a defendant's attempt to confuse or distract the jury by diverting their attention from the strong evidence of the defendant's guilt." Cohen, 412 Mass. at 387-388. The prosecutor's statements to the jury here were exactly these types of permissible comments. In support, the prosecutor pointed to the defendant's focus on one of the officer's testimony in which he could not recall whether the house had two or three floors. The prosecutor's statements were not meant to evoke the jury's emotions, but rather alert the jury to what the Commonwealth suggested was merely a distraction from the strong evidence of guilt in this case.
Accordingly, none of the challenged remarks was improper and, thus, there was no substantial risk of a miscarriage of justice. See Jones, 471 Mass. at 148, 149.
6. Cumulative effect of errors. The defendant argues that his conviction requires reversal because of the cumulative effect of the errors at trial. Given our conclusions, there was no risk that any error requires reversal or that any cumulative effect requires such. See Commonwealth v. Roy, 464 Mass. 818, 836 (2013).
During oral argument, the defendant waived his claim regarding mandatory minimum sentences as a result of the Supreme Judicial Court's recent decision in Commonwealth v. Laltaprasad, 475 Mass. 692 (2016).
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Judgment affirmed.
Order denying motion for new trial affirmed.