Opinion
16-P-155
05-09-2017
COMMONWEALTH v. Samuel PIERRE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of possessing a firearm without a license, possessing a loaded firearm without a license, negligent operation of a motor vehicle, and failure to stop for a police officer. In this appeal the defendant claims error in the denial of his motion to suppress an out-of-court identification. He also argues that the evidence was insufficient for the jury to convict him of possessing a firearm; that a police officer impermissibly testified as to his opinion about the defendant's guilt; and that the prosecutor made improper statements in his closing argument. We affirm.
Background. We summarize the facts, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In September of 2013, State Trooper Keith Ledin was stationed at an intersection in Brockton when he observed a Nissan Maxima driving towards him at a high rate of speed. The vehicle sounded like it was "gunning" and "revving its motor." Suddenly, the driver braked and made a quick right turn, coming "extremely close" to hitting the trooper's cruiser. The trooper observed that the driver, who he later identified as the defendant, had "thin, short dreadlike hair," "a long pointy nose," and a "big chin." He also noticed that there were several passengers in the back of the car.
Trooper Ledin activated his emergency lights and pursued the vehicle. In response, the defendant accelerated and drove through two stop signs. His driving became "so erratic" that Trooper Ledin was unable to keep up, although he continued to follow the vehicle from a distance. The trooper then observed the vehicle come to a "skidding stop" and the occupants flee from both sides. He got out of his cruiser and ran after the defendant, who had fled in the opposite direction from the passengers. The defendant was "tightly holding onto the front of his waistband" as he ran. Trooper Ledin chased the defendant and was gaining on him until the defendant jumped over a fence and cut through the backyard of a residence, later identified as 142 Manomet Street. At this point the trooper discontinued his chase.
Thereafter, another trooper arrived at the scene with a K9 dog. The K9 alerted to a firearm in the yard of 142 Manomet Street. The firearm was located about six feet from the fence line, in the "exact path" that the defendant took through the yard.
Trooper Ledin then searched the abandoned Nissan Maxima and found a medical bill with the defendant's name. When he entered the name into the mobile data terminal in his cruiser, he obtained the defendant's registry of motor vehicles (RMV) photograph and determined that the person in the photograph was the driver of the Nissan Maxima. The trooper was able to identify the person as the driver "immediately" upon viewing the photograph and communicated with dispatch that he was "100 percent" certain of his identification.
Discussion. 1. Motion to suppress. The defendant claims that Trooper Ledin's identification from the RMV photograph should have been suppressed because the circumstances surrounding the identification were unnecessarily suggestive. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, ‘but conduct an independent review of his ultimate findings and conclusions of law.’ " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). An identification is inadmissible if the defendant has proven by a preponderance of the evidence that the identification procedure was "so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [him] due process of law." Commonwealth v. Odware, 429 Mass. 231, 235 (1999), quoting from Commonwealth v. Otsuki, 411 Mass. 218, 232 (1991). In determining whether an identification procedure was unnecessarily suggestive, we examine whether the police had "good reason" to use the procedure. Commonwealth v. Martin, 447 Mass. 274, 279 (2006), quoting from Commonwealth v. Austin, 421 Mass. 357, 361 (1995).
We observe at the outset that Trooper Ledin appears to have made his identification during the ordinary course of his investigation rather than during an identification procedure conducted by the police. Nevertheless, assuming, as the parties do, that our inquiry is governed by the same principles that apply to police identification procedures, we conclude that Trooper Ledin's identification was admissible. The trooper had "good reason" to search for a photograph of a potential suspect while he was on the scene, both to protect the public and to efficiently investigate the crime. See Austin, 421 Mass. at 362. In addition, the trooper was more likely to be able to correctly identify the suspect in the immediate aftermath of the crime. See Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014) ("Not only is a prompt identification procedure more likely to be accurate, because the eyewitness's memory is fresh, but also, more importantly, it allows the police to learn quickly whether the suspect is the perpetrator of the crime so that, if he is not, the police can continue the investigation to find the actual perpetrator").
To be clear, we do not hold, or suggest, that a police officer investigating a crime needs to have "good reason" before looking at photographs of potential suspects during the course of the investigation. Again, we are merely assuming, as the parties do, that the "good reason" test applies to this case.
We further conclude that the circumstances were "not so unnecessarily suggestive that [they] created a substantial risk of a mistaken identification." Id. at 218. Trooper Ledin made his identification shortly after the crime, while his memory was still fresh. He also testified at the motion hearing that he observed the defendant from a mere "three feet away" and in a "well-lit" area. The motion judge credited the trooper's testimony that he was able to see the defendant and make out his facial features. Although there were some inconsistencies in the trooper's recollection of the defendant's hairstyle, the judge found that that was "a trial issue" and that the trooper "credibly testif[ied]" in any event that his identification was based primarily on the defendant's "distinctive" nose and chin. The judge's findings were not clearly erroneous, and he appropriately reserved for the jury the task of assessing the weight to give the trooper's identification. See Commonwealth v. Forte, 469 Mass. 469, 478 (2014).
2. Insufficient evidence of firearm possession. The defendant next argues that there was insufficient evidence to establish that he possessed the firearm that was discovered in the yard of 142 Manomet Street. We review the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, 378 Mass. at 677, quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
Because the firearm was not recovered from the defendant's person, we must determine whether the evidence was sufficient under a theory of constructive possession. To establish constructive possession, the Commonwealth must prove that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Than, 442 Mass. 748, 751 (2004), quoting from Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). "Knowledge may be established by circumstantial evidence," and "[i]ntent to exercise dominion and control can be inferred from the defendant's conduct." Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 41 (2010). A defendant's mere presence in the area where contraband was found is insufficient to prove possession; however, "presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ " Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting from United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976).
Here, both the location of the firearm and the defendant's movements were consistent with the Commonwealth's theory that the defendant carried the firearm in the waistband of his pants and discarded it after jumping over the fence into the backyard of 142 Manomet Street. The firearm was found six feet from the fence and in the defendant's "exact path" of flight. The lawn was recently manicured, suggesting that the firearm had only recently been placed there. In addition, the jury could have reasonably inferred that the defendant was holding the front of his pants because he was hiding a firearm in his waistband. Although the defendant contends that he was holding his pants to keep them from falling down, the jury could have found otherwise, especially in light of Trooper Ledin's testimony that the defendant was holding his pants "steady" from the front. A reasonable jury could also infer that the defendant fled "to throw away contraband that [he] feared the police would find during [the] stop." Commonwealth v. Jefferson, 461 Mass. 821, 826 (2012). This evidence, considered in its totality, was sufficient to prove constructive possession. Cf. Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 153-154 (2008) (constructive possession established by evidence that defendants hid behind fence and police found two firearms that were dry and "hot to the touch" in wet trash barrel behind fence); Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 552–553 (2015) (constructive possession established where defendant fled from police, firearm and his clothes were recovered from flight path, and he lied to police, indicating consciousness of guilt).
3. Opinion testimony on guilt. Next, the defendant contends that the judge erred in allowing Trooper Ledin to twice offer his opinion that the defendant was guilty. Specifically, the defendant challenges the following statements: (1) on direct examination, the trooper testified that he pursued the defendant, and not the passengers in the vehicle, because in his experience, "the only person actually committing the crime is the one ... that's operating the motor vehicle," and so he focused on "the actual person who committed the crime"; and (2) on redirect examination, the trooper testified that he was able to identify the defendant, but not the passengers, "[b]ecause they weren't the ones committing the crime." The defendant did not object to the first statement but did object to the second. We therefore review the statements, respectively, for a substantial risk of a miscarriage of justice, see Commonwealth v. Little, 453 Mass. 766, 773 (2009), and for prejudicial error, see Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
It is fundamental that "[n]o witness, including a police witness, may testify as to a defendant's guilt or innocence." Commonwealth v. Hamilton, 459 Mass. 422, 439 (2011). Reading Trooper Ledin's statements in context, however, we view his testimony not as an opinion on the defendant's guilt but, rather, as an explanation of why he focused his attention and pursuit on the driver of the vehicle, and not the passengers. The trooper made the first challenged statement—that "the only person actually committing the crime is the one ... that's operating the motor vehicle"—after he was asked by the prosecutor to explain "why [he] elected to chase the [d]efendant and not the four persons who had exited the vehicle off the passenger side." Defense counsel then asked the trooper on cross-examination to describe the passengers, which he could not do. The prosecutor returned to defense counsel's question on redirect examination, asking the trooper why it was that he was "able to identify the [d]efendant, but not necessarily the persons who were also in the vehicle." This led the trooper to make the second challenged statement—that he could not identify the passengers "[b]ecause they weren't the ones committing the crime."
In light of this context, we conclude that Trooper Ledin's testimony did not result in reversible error. We agree with the Commonwealth that it was within the common knowledge and experience of the jury that the person in the driver's seat is generally the one responsible for any motor vehicle violations. Thus, although Trooper Ledin's statements were not worded in the best way, as the Commonwealth concedes, we think that the jury would have fairly understood them as an explanation of why he focused on the driver, and not as an opinion on the defendant's guilt. Furthermore, even assuming error, the evidence supporting the defendant's convictions of the motor vehicle violations was overwhelming, which the defendant does not contest. We are satisfied in these circumstances that any error "did not influence the jury, or had but very slight effect." Cruz, 445 Mass. at 591, quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). See Commonwealth v. Bastaldo, 472 Mass. 16, 34–35 (2015) (error not prejudicial where evidence of defendant's guilt was overwhelming).
4. Closing argument. Lastly, the defendant challenges the prosecutor's closing argument on two grounds. He first claims that the following passage constituted improper vouching:
"You just listened to about five minutes of [d]efense [c]ounsel calling Trooper Keith Ledin a liar and you should really be asking yourselves at this point why would he lie? Because he's never met [the defendant] before, never had an issue with him. He doesn't get a benefit from arresting somebody. He doesn't get punished for losing a fleeing suspect, so why would he take the stand, a veteran of the Massachusetts State [p]olice for the past [ten] years, take an oath, sit down in front of seven members of the community and just lie right to your faces? Why would he do that?
"Fear? Was he embarrassed? Was he afraid? Well, you have the benefit of watching him and watching him testify and answer the questions posed by myself and [d]efense [c]ounsel. Did he look afraid to you? Did he look like he had something to hide at any point during his testimony?"
Defense counsel requested a sidebar with the judge after the prosecutor's closing, but the conversation is marked as inaudible. It is undisputed, however, that the defendant requested a curative instruction during the sidebar, and the judge immediately gave such an instruction. Accordingly, we deem this issue to be preserved and review it for prejudicial error. See Commonwealth v. Bresilla, 470 Mass. 422, 437-438 (2015).
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We agree that this argument improperly sought to bolster Trooper Ledin's credibility. Although the Commonwealth contends that it was a fair response to defense counsel's closing argument, defense counsel never asserted in his closing that the trooper was not believable, let alone a "liar." Rather, he focused his argument on whether the trooper's identification was reliable, given that he only observed the defendant for a few seconds. Thus, the prosecutor's remarks cannot be justified as a fair response to the defense's closing. Cf. Commonwealth v. Smith, 450 Mass. 395, 408 (2008) (prosecutor permissibly stated that witnesses had no motive to lie in response to defense counsel's argument that their testimony was not truthful).
Nonetheless, we conclude that the remarks do not warrant reversal of the defendant's convictions. Immediately following the prosecutor's closing, the judge gave a curative instruction to the jury, emphasizing that closing arguments "are not a substitute for evidence," that the jurors "are the judges of [the] credibility of witnesses," and that the jurors "determine what weight to give the[ ] evidence." He then gave similar instructions in his final charge. Also in the final charge, the judge instructed that the jury should "give the testimony of each witness whatever degree of belief and importance that [they] judge it is fairly entitled to receive" and that they "may believe everything a witness says, or only part of it or none of it." In addition, the judge told the jury that they are the "sole and exclusive judges of facts" and that they "alone determine what evidence to accept, how important any evidence is that [they] do accept and what conclusions to draw from all of the evidence." In light of these instructions, we conclude that the prosecutor's statements, while improper, were not prejudicial. See Commonwealth v. Akara, 465 Mass. 245, 262 (2013) (error in prosecutor's closing not prejudicial where judge gave charge "following shortly after closing argument and responding to the prosecutor's improper argument").
The defendant's second claim of error is that the prosecutor referred to facts not in evidence when he argued that the defendant held the front of his waistband because he had a gun. Because the defendant did not object to this argument, we review to determine whether there was any error and, if so, whether it resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 359 (2015). We discern no error. "Prosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). The prosecutor's statement that the defendant was holding a gun in his waistband was a permissible inference from the evidence.
Judgments affirmed.