Opinion
10-P-1327
03-23-2012
COMMONWEALTH v. PATRICE KELLY (and two companion cases).
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
A Superior Court jury convicted Branden Williamson of possession of cocaine with intent to distribute and convicted Patrice Kelly of two counts of possession of cocaine with intent to distribute, G. L. c. 94C, § 32A(c). The charges stemmed from an undercover purchase of cocaine in Springfield. On appeal, the defendants raise several challenges to their convictions, none of which have merit.
Background. We summarize the facts the jury could have found. On the evening of January 20, 2009, Kelly sold a small amount of cocaine to Officer Julio Toledo. When Officer Toledo asked about purchasing a larger amount of cocaine, Kelly introduced him to Williamson, who called himself 'Bull.' Williamson showed Officer Toledo a plastic bag containing what appeared to be cocaine, which he offered to sell. However, for reasons regarding his personal safety, Officer Toledo initially declined the offer and eventually purchased additional cocaine from a third defendant, Celeste Gainey, who acted as an intermediary for Williamson.
Kelly and Gainey were arrested that same night, while Williamson was arrested a few days later after Officer Toledo identified him from a photograph shown to him by other police officers. On the eve of trial, Gainey entered a plea of guilty and subsequently testified for the Commonwealth.
1. 'Missing witness' instruction. At trial, the Commonwealth relied primarily on the testimony of Officer Toledo and Gainey to prove its case. The drug transaction was observed from a distance by two other police officers who were conducting surveillance, but neither officer testified for the Commonwealth. The defendants requested that the judge give a 'missing witness' instruction to the jury relating to the Commonwealth's failure to call the surveillance officers as witnesses. The judge declined, and both Kelly and Williamson claim the refusal constituted error. We disagree.
'The decision whether to provide a missing witness instruction to the jury is within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable.' Commonwealth v. Saletino, 449 Mass. 657, 667 (2007). 'A missing witness instruction is appropriate when a party ' has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness.' Ibid., quoting from Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991).
Here, the judge's decision not to give a missing witness instruction was based on the prosecutor's representation that the surveillance officers could not provide any testimony of importance. As the prosecutor explained, the officers were not in a position to make an identification. Because the record supports the Commonwealth's assertion that there was no logical reason to call either officer, we conclude that the judge's decision was not 'manifestly unreasonable.' Commonwealth v. Saletino, 449 Mass. at 667. Moreover, while not dispositive of the issue, it is significant that the witnesses in question were available to be called by the defense. Finally, although the judge should not have permitted it, defense counsel for both defendants made a missing witness argument to the jury. The defendants thereby received more than they were entitled to in the circumstances. Id. at 670-672.
2. Prosecutor's use of the phrase 'red herring' in closing argument. Throughout his closing argument, the prosecutor characterized defense counsels' arguments as 'red herrings.' There were timely objections from both defendants, and therefore the standard of review is prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Although the phrase 'red herring' was 'not an appropriate choice of terms,' Commonwealth v. Cohen, 412 Mass. 375, 388 (1992), the prosecutor was merely attempting to show that defense counsel had attempted to divert the jury's attention from the strong evidence of guilt. See ibid. ('It is not improper for the prosecutor to suggest to the jury that the defendant attempted to 'fool' them. . . . It is also not improper for a prosecutor to 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'). Furthermore, although the judge declined to give a specific curative instruction as requested by defense counsel, he twice instructed the jurors that closing argument is not evidence. These instructions mitigated any potential prejudice in the prosecutor's remarks. See Commonwealth v. Bol Choeurn, 446 Mass. 510, 523 (2006).
3. Williamson's motion to suppress. Prior to trial, Williamson moved to suppress Officer Toledo's photographic identification, claiming that the identification procedure was unduly suggestive. After an evidentiary hearing, the motion judge found that the identification at issue was made at the police station a few days after the purchase of drugs when other police officers placed a photograph of the defendant on a computer monitor and asked Officer Toledo whether he recognized the person depicted on the screen. The judge found that there was no writing or marking on the photograph and that Officer Toledo was not prompted in any way to identify the phonograph as the defendant. Although, as the judge acknowledged, one-on-one identifications are generally disfavored, the judge nonetheless concluded that there was nothing inherently suggestive about the identification procedure and denied the motion.
The judge's findings are fully supported by the evidence and his conclusions of law are consistent with governing case law. See Commonwealth v. Botelho, 369 Mass. 860, 867 (1976); Commonwealth v. Austin, 421 Mass. 357, 361-362 (1995); Commonwealth v. Watson, 455 Mass. 246, 250-251 (2009). Because we agree with the judge's ruling in all respects, we affirm the order denying the motion to suppress.
4. Motion for mistrial. During his opening statement to the jury, the prosecutor described a conversation between Williamson and Officer Toledo that had never occurred. The prosecutor claimed that Williamson said to Officer Toledo, 'Do you want to buy stuff? I have stuff right here,' and 'We'll make the deal. You know me, my name is Bull.' Defense counsel objected, asserting that the statements attributed to Williamson had not been disclosed. The prosecutor conceded that he had 'tak[en] liberties' in dramatizing what 'was [likely] being said at the time,' but argued that such a conversation could be inferred by the evidence. Williamson moved for a mistrial, which the judge denied, opting instead to remind the jury that opening statements are not evidence.
We review the judge's decision to deny the motion for a mistrial for abuse of discretion. Commonwealth v. Lao, 460 Mass. 12, 19 (2011). While a prosecutor is given considerable leeway in opening to state what he or she expects the evidence to prove, a prosecutor should not engage in rhetoric. We nonetheless conclude that the judge properly determined that Williamson was not prejudiced or deprived of a fair trial. See Commonwealth v. Morgan, 449 Mass. 343, 360 (2007) (in opening, prosecutor may 'argue inferences from the evidence favorable to [the Commonwealth's] case'), quoting from Commonwealth v. Johnson, 429 Mass. 745, 748 (1999). See also Commonwealth v. Cohen, 412 Mass. 375, 382- 383 (1992) ('Generally, a prosecutor in a criminal action may state anything in his opening argument that he expects to be able to prove by evidence').
5. Gainey's undisclosed statements. As indicated, the day before trial commenced, Gainey pleaded guilty and agreed to testify against the defendants. She testified that on the night in question Williamson 'had a big baggy, big plastic bag of drugs in his hand' and she heard him say to Officer Toledo: 'Dude, I got it right here. My name is Bull.' There was an objection on the grounds that Williamson's statement had not been disclosed in a timely manner. Trial counsel also claimed that she had not had adequate opportunity to interview Gainey prior to trial. The prosecutor, who also had no advance knowledge of the challenged testimony, argued that there was no prejudice because the testimony was cumulative of other evidence. Noting that defense counsel had not requested a continuance after Gainey's last-minute decision to testify for the Commonwealth, the judge overruled the objection.
Assuming without deciding that the prosecutor was responsible for the delay, the issue is 'whether 'the defense [was] materially hurt in its preparation by having to meet [the] unexpected [evidence.]" Commonwealth v. Eneh, 76 Mass. App. Ct. 672, 678 (2010), quoting from Commonwealth v. Gilbert, 377 Mass. 887, 895 (1979). Here, Gainey's testimony that the defendants were involved in the drug sale was not unexpected. Nor was Williamson 'materially hurt' by Gainey's statement that he referred to himself by the nickname 'Bull,' as similar evidence had already been introduced by Officer Toledo. Consequently, we conclude that even if there was error, it was not prejudicial.
Judgments affirmed.
By the Court (Rapoza, C.J., Smith & Vuono, JJ.),