Opinion
10-P-216
03-13-2012
COMMONWEALTH v. CHANHDA ONESYVIENG.
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 jury convicted the defendant of conspiracy to violate the Controlled Substances Act, but acquitted him of trafficking in cocaine. He appeals both the conviction and the denial of his motion for a new trial. We affirm, essentially for the reasons stated in the trial judge's careful memorandum.
Motion to suppress. Defendant's counsel at the hearing on the motion to suppress was admittedly inexperienced and, at least at the beginning of the hearing, seems to have misunderstood what was required. For example, he failed to file the necessary affidavit to accompany the motion and his initial arguments would have been more appropriate in a motion to dismiss. However, counsel filed the affidavit the following day and his cross-examination of the testifying police officer strongly challenged the officer's credibility.
More importantly, regardless of counsel's performance, the Commonwealth's case on the motion to suppress was very strong. The police had recovered a quantity of cocaine when they executed a search warrant in an apartment in Lowell. One of the apartment's occupants, 'X,' agreed to cooperate and made a telephone call to X's supplier. According to X, the supplier, named Chanhda, came regularly from Rhode Island to deliver drugs in a car that X described. X arranged to meet Chandha and a second male at a particular place and time. The police went to the meeting place and the defendant arrived as a passenger in a car matching the description given, including Rhode Island license plates. As the motion judge found, '[t]he arrangements unfolded like clockwork . . . . [A]s the police approached the car, they could see what appeared to be a large package of crack cocaine in the back.'
On these facts, the motion judge properly found that the police had probable cause to seize the drugs and to arrest the occupants of the car. The trial judge, who did not hear the motion to suppress, but ruled on the defendant's motion for a new trial, correctly observed, 'The defendant has not . . . provided any sound reason for thinking that more experienced or better prepared counsel could [have] achieved a better result with what there was to work with.' On appeal, the defendant's argument fares no better. We see no substantial risk of a miscarriage of justice. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1975).
We reject the argument that 'by not presenting, through the required affidavit, Onesyvieng's personal knowledge of the facts at issue . . . counsel . . . forfeited Onesyvieng's right to challenge the evidence against him in a competent manner.' See Commonwealth v. Rodriguez, 74 Mass. 314, 316 n.2 (2009) (The 'affidavit is not evidence at the suppression hearing').
Prosecutor's argument. During his closing argument, the prosecutor made two statements now challenged on appeal. First, the prosecutor compared the situation of driving around with a significant amount of cocaine in plain view of a passenger, with 'driving around with a body in your car'; a driver 'would not put the body in the back seat and let the passenger see it unless there was a commonality of mind.' Although the defendant did not object, the analogy comparing the large amount of drugs in the car to a situation with a body in the car would have been better omitted. However, the defendant's argument that the prosecutor, by '[h]arping on the seriousness of the offense due to the amount of drugs,' language he characterized as 'over-dramatization of the amount of drugs,' misperceives the situation. The prosecutor was charged with proving beyond a reasonable doubt the charge of trafficking in cocaine, 'having a net weight of 200 grams or more.' To that end, an argument referring, even repeatedly, to the amount of the drugs seized was wholly appropriate. See Commonwealth v. Silva, 455 Mass. 503, 518 (2009).
At trial, the defendant was represented by new counsel, not the attorney who represented him at the hearing on the motion to suppress.
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Second, the prosecutor argued,
'Based on counsel's argument that Mr. Onesyvieng didn't try to run or hide and therefore he's not guilty, the same argument would be made with respect to Mr. Thammavongsa [the driver], in which case we have the drug theory of just dropping these drugs mysteriously in the car and neither one is responsible.
'This is an ideal situation in which one defendant at his trial will lead the jury to infer that it was the other guy's drugs. At the second trial, some guy will say it was the first guy's drugs, and -- '
At this point, the judge interrupted and said, 'Counsel, I think you can just stop right there, on that line.' Again, there was no objection from defense counsel. Asking the jury to speculate about what the driver of the car might do at a separate trial was improper. However, the judge, sua sponte cut off that argument and, as he observed when ruling on the motion for a new trial, '[t]he prosecutor thereupon shifted to a more focused and appropriate discussion of the theory of constructive possession as it applied to the facts of the case. . . . The precharge and the final charge both included the standard admonition that opening statements and closing arguments are not evidence.' We agree with the judge that
'Although . . . the sentence in question was headed in an unwholesome direction, it was never finished. Nor was the argument seriously prejudicial, even if it had been fully developed. It stopped short of implying extra-evidentiary knowledge by the prosecutor (who was clear that the 'second trial' hadn't happened yet); nor could it reasonably have been interpreted as vouching, burden-shifting, comment on the defendant's election not to testify, or any of the other toxic errors sometimes encountered in closing argument.'
Finally, we are not persuaded by the defendant's argument that the language of the judge's precharge instruction to the jury to pay careful attention to the opening statements and closing arguments of counsel somehow placed undue emphasis on closing arguments.
The granting of a motion for new trial rests upon the discretion of the motion judge and 'will not be reversed unless it is manifestly unjust.' Commonwealth v. Lucien, 440 Mass. 658, 669 (2004). 'Reversal for abuse of discretion is particularly rare where [as here] the judge acting on the motion was also the trial judge.' Id. at 670. After reviewing the prosecutor's closing argument as a whole, and the trial judge's instructions, we see no substantial risk of a miscarriage of justice. See Commonwealth v. Verde, 444 Mass. 279, 287 (2005). Based on the record before us, it does not appear 'that justice may not have been done.' Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Berry, Trainor & Hanlon, JJ.),