Opinion
15-P-1528
02-24-2017
COMMONWEALTH v. Steeve NICLAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Steeve Niclas, appeals from his convictions of possession of a firearm without a license, in violation of G. L. c. 269, § 10(a ), and possession of a loaded firearm, in violation of G. L. c. 269, § 10(n ). The defendant argues that he should be granted a new trial because of several errors that occurred at trial. We affirm.
The defendant was also convicted of possession of ammunition without a FID card, in violation of G. L. c. 269, § 10(h ), however, this charge was dismissed on the Commonwealth's motion.
Background . On August 18, 2014, at around 1:30 A.M. , the defendant left a party and walked toward his home on Nightingale Street in Dorchester. While on route, he took a shortcut through the Boys and Girls Club parking lot.
At that time, Officers Anthony Poulos and Dean Quinby were on duty, patrolling the Mattapan area of Boston. When the officers were driving on Talbot Avenue, they observed the defendant walking in the area of Franklin Park. This area experiences "a fair amount of gun crimes," and Franklin Field, specifically, could be "very active" during the month of August.
From approximately fifty feet away, Officer Quinby observed the defendant grab "an object in his midsection ... and shift it from one side to another." The officers made a U-turn and drove toward the defendant.
As the defendant started to cross Talbot Avenue, Officer Poulos noticed the defendant "disappear[ ] for a couple seconds behind a [parked Kia Optima]." The officers did not see the defendant make a throwing gesture; however, Officer Poulos observed the defendant come out from behind the vehicle and continue to cross Talbot Avenue.
The officers drove up to within a one-foot distance of the defendant. While in their cruiser, the officers asked the defendant where he was going. The defendant told them that he was headed home to Nightingale Street. He then lifted up his shirt and stated, "I don't have any guns on me," while rotating in a 360-degree manner. The defendant testified that he had a wallet, comb, cellular telephone, and a grinder with marijuana in his pocket.
The defendant testified that the officers asked him to lift up his shirt.
The defendant walked away, and Officer Quinby drove to the Kia Optima. There, Officer Quinby observed a firearm "under[neath] the rear bumper [of the vehicle]." While Officer Quinby stayed with the firearm, Officer Poulos pursued the defendant and arrested him. At the station, the defendant was booked and informed of the charges against him. The defendant signed a form waiving his Miranda rights and spoke with detectives about the incident.
Discussion . 1. Admission of "other bad acts" evidence . The defendant argues that the judge erred in failing to strike Officer Quinby's testimony that "there was some marijuana recovered from [the defendant]" when he was booked at the police station. The defendant's objection was timely and preserved for this appeal.
"[E]vidence of uncharged criminal acts or other misbehavior is not admissible to show a defendant's bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes such as common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive." Commonwealth v. Dwyer , 448 Mass. 122, 128 (2006) (quotation omitted). Here, the testimony that the defendant had marijuana in his possession was not relevant for any permissible purpose in proving that the defendant was in possession of the firearm that was found underneath the car. See ibid . See also Commonwealth v. Walker , 460 Mass. 590, 613 (2011) ; Commonwealth v. Bresilla , 470 Mass. 422, 436 (2015). The admission of this testimony was an error.
However, the defendant did not face any unfair prejudice as a result. See Commonwealth v. Crayton , 470 Mass. 228, 249 (2014). Here, we can say with "fair assurance" that this testimony had no or very little prejudicial effect to the defendant's case, where the defendant testified on direct examination, as well as cross-examination, without objection, that he had a grinder and marijuana in his pocket. Commonwealth v. Flebotte , 417 Mass. 348, 353 (1994) (quotation omitted). See Commonwealth v. Graham , 431 Mass. 282, 288-289, cert. denied, 531 U.S. 1020 (2000). This testimony supported the defendant's theory that the object that the officers observed him adjusting in his midsection area was not a gun, but instead, that the defendant's "hand was on [his] left pocket holding the grinder."
The lack of prejudice is also evident, considering that possession of marijuana has been decriminalized in Massachusetts, and the testimony that the defendant was merely issued a citation for such possession thwarted any notion that the amount of marijuana found on the defendant's person was criminal. Moreover, any risk of prejudice was minimized by the fact that the Commonwealth did not mention the marijuana testimony in her closing argument. See Commonwealth v. Barbosa , 463 Mass. 116, 125-126 (2012). Thus, the defendant has not shown that the error has "possibly weakened [his] case in some significant way so as to require a new trial." Commonwealth v. Mahar , 430 Mass. 643, 650 (2000), quoting from Commonwealth v. Schulze , 389 Mass. 735, 741 (1983).
2. Prior recorded statements . The defendant takes issue with the prosecutor's references to the defendant's prior recorded statements that were made both on cross-examination and during closing argument. However, the defendant broached the issue on both occasions.
The defendant's objection in both instances was preserved. Subsequent to trial, the trial judge granted the defendant's motion to reconstruct the record regarding the defendant's objection at sidebar to the prosecutor's closing argument. The record was reconstructed to reflect that, after the prosecutor's closing argument, the defendant objected that the prosecutor had referred to facts that were not in evidence.
On direct examination, the defendant testified that when he was confronted by the officers, they asked him if he had anything on him and instructed him to lift his shirt. The defendant further testified that he first learned of the charges against him at the police station, and that after being informed of his rights, he signed a waiver and gave a recorded statement to the detectives. In response to this testimony, the prosecutor cross-examined the defendant, and asked him whether the officers instructed him to raise his shirt. The defendant responded in the affirmative, and the prosecutor questioned whether the day of trial was the first time that the defendant had mentioned the officers' instruction. See Commonwealth v. Rivera , 425 Mass. 633, 639 (1997) ("A defendant who takes the witness stand ... is subject to the ordinary rigors of proper cross-examination, including questioning about prior inconsistent statements voluntarily made").
When the defendant stated that it was not the first time that he had disclosed that the officers asked him to raise his shirt, the prosecutor proceeded to ask whether the defendant informed the detectives at the police station of this request. See Commonwealth v. Christian , 430 Mass. 552, 561 (2000) ("A [prosecutor] may ask a question that implies the truth of a proposition if she has a basis in fact for asking the question and is prepared to disclose that reason to the judge"). The defendant's several responses included, "It's not the first time," "I don't remember," and "I didn't think they asked me that question."
Here, "it is very likely that the prosecutor had a reasonable basis for [her] questions which, on request, [she] could have disclosed" not only based on the officers' testimony that the defendant lifted his shirt on his own initiative, but also, based on the defendant's testimony that the detectives did not ask him that question and the defendant's prior recorded statement to the detectives, where he did not disclose that he was asked to raise his shirt. Commonwealth v. Johnson , 441 Mass. 1, 6 (2004). This case is distinguishable from the cases on which the defendant relies, because the defendant did not consistently deny the prosecutor's questions. See Christian , supra ; Commonwealth v. Peck , 86 Mass. App. Ct. 34, 35 (2014). Instead, the defendant's answer of "I didn't think they asked me that question" supported the prosecutor's line of questioning—that the defendant did not tell the detectives that the officers asked him to lift up his shirt because that question was not raised by the detectives.
Turning to the prosecutor's closing argument, the prosecutor stated, "[t]he defendant can't remember what he said to the detectives ..., but I suggest to you, this is the first time today, after hearing the testimony of these officers, that the defendant now claims he was told to lift his shirt up—the first time." Here, the prosecutor accurately stated, as the defendant testified, that he did not remember the statements that he made to the detectives. This statement was also made in response to the defense counsel's closing argument, where he referred to the defendant's prior recorded statements and stated that the defendant did all he could do to "cooperate [ ] [at] every step," including complying with the officers' request to lift his shirt. See Commonwealth v. Anderson , 411 Mass. 279, 286 (1991). See also Commonwealth v. Siny Van Tran , 460 Mass. 535, 555 (2011) ("Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed"). Further, the prosecutor's statement was based on reasonable inferences from the defendant's testimony that the detectives did not ask him whether he was told to lift his shirt and the officer's testimony that the defendant did so on his own initiative. See Commonwealth v. Auclair , 444 Mass. 348, 358 (2005).
In reviewing a defendant's claim of error in a prosecutor's closing argument, a reviewing court considers: "(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Kater , 432 Mass. 404, 422-423 (2000).
Moreover, there was no prejudice that resulted from the prosecutor's reference to the defendant's prior recorded statements either on cross-examination or during closing argument. We reject the defendant's contentions that the prosecutor's "improper insinuations struck at the heart of [his case]." Peck , supra at 40. Even if the jury disbelieved the officers' testimony and credited the defendant's statements that the officers asked him to lift his shirt, the difference has little to no significant impact on the material issue of whether the defendant possessed the firearm and placed it underneath the car. Any possibility of prejudice was also diminished by the judge's careful instructions to the jury that "a lawyer's question itself, no matter how artfully phrased, is not evidence," that "only the answers are evidence," and that "[i]f a question included any suggestions or insinuations, you are to ignore them unless I permitted the witness to answer and the witness confirmed those suggestions." The judge further instructed the jury that "[t]he opening statements and the closing arguments of the lawyers are not evidence." Therefore, there was no error. See Commonwealth v. Mitchell , 428 Mass. 852, 857 (1999) ("The jury is presumed to recognize that the prosecutor is an advocate, not a witness"); Auclair , supra at 360 ("Juries are presumed to follow [a judge's clear] instructions").
Since the objections were preserved, "we must determine whether we can say with fair assurance that the error ‘did not influence the jury, or had but very slight effect.’ " Commonwealth v. McCoy , 59 Mass. App. Ct. 284, 290 (2003), quoting from Flebotte , 417 Mass. at 353.
The judge also instructed the jury that the lawyers' closing arguments "are only intended to assist you in understanding the evidence and the contentions of the parties ... [and] [i]f your memory of the testimony differs from the attorneys or mine, you are to follow your own recollection."
3. Defendant's state of mind . The defendant also argues that the prosecutor's closing argument improperly commented on the defendant's state of mind. During closing argument, the prosecutor stated, "[The defendant] figured, ‘Hey, I'm going to lift my shirt up, I'm going to go to twirl around and do a 360.’ " The defendant's objection was not preserved and therefore, we consider whether this statement created a substantial risk of a miscarriage of justice. Commonwealth v. Ferreira , 460 Mass. 781, 788 (2011).
The defendant concedes, on appeal, that he did not raise grounds to preserve his objection to the prosecutor's alleged comment on the defendant's state of mind.
The prosecutor's statement was "properly grounded in the evidence." Commonwealth v. Pope , 406 Mass. 581, 587 (1990) (quotation omitted). At trial, the officers testified that the defendant "lifted up his shirt and said, ‘I don't have any guns on me,’ and did a complete 360." Here, the prosecutor's remark was not only "fairly inferable from the evidence presented," but also was limited to the parameters of the officers' testimony. Ibid . See Commonwealth v. Coren , 437 Mass. 723, 730 (2002).
Further, the prosecutor's statement did not prejudice the defendant so as to require a new trial. The defendant did not make a request for curative instructions at trial. See Commonwealth v. Roberts , 378 Mass. 116, 123 (1979). Further, the prosecutor's statements concerned a collateral issue that had little to no significance on whether the defendant possessed the gun and placed it behind the vehicle. See Commonwealth v. Kater , 432 Mass. 404, 422 (2000).
However, the judge did give careful limiting instructions. See note 6, supra .
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Judgments affirmed .