Opinion
14-P-399
11-17-2015
COMMONWEALTH v. AARON PIRES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction, following a jury trial, of trafficking in heroin in violation of G. L. c. 94C, § 32E(c). The only issues raised by the defendant concern two aspects of the prosecutor's closing argument. As we discern no error, we affirm.
Background. We summarize the evidence presented. On August 7, 2012, while on patrol in Brockton, Trooper Keith Ledin of the Massachusetts State Police stopped a Chevrolet Impala automobile after he had observed that the driver failed to use a directional signal and nearly caused a collision with another vehicle. As the Impala slowed down, Trooper Ledin observed the front-seat passenger lean forward quickly so that he was out of the trooper's sight. After the vehicle stopped and Trooper Ledin approached the vehicle, he asked for identification and vehicle registration; the passenger identified himself as Aaron Pires, the defendant. The driver of the car also identified himself, responded that the vehicle was a rental car, and provided the trooper with the rental agreement. The vehicle was rented to a third individual, Joanna Andrade, who was not present in the car; the rental agreement stated that no one other than Andrade was permitted to operate the vehicle.
After observing a large red-and-black handled knife between the defendant's left leg and the car's center console, Trooper Ledin asked the defendant to exit the vehicle. A patfrisk led to the discovery of two plastic knotted baggies in the defendant's sock, which Trooper Ledin recognized to contain heroin. The defendant admitted that there was more in his left sock, and there the trooper discovered a larger rock of heroin in one bag. The defendant was placed under arrest and advised of his Miranda rights.
Andrea Wilson, a forensic chemist employed by State police forensic science group, testified that the three items recovered from the defendant's socks tested positive for heroin, with a combined weight of 19.70 grams. Detective Thomas Keating, a twenty-six year veteran of the Boston police department, with extensive experience in drug investigations, explained why one person's possession of a "finger" of heroin (ten grams), which he described as a bulk purchase valued at approximately $700, and two packages of approximately five grams each, was more consistent with possession with intent to distribute than with possession for personal use. Detective Keating testified that it would be unusual for a heroin user to buy in bulk because those users typically cannot afford to do so. Based on his experience, he described the quantity of heroin typically bought by users as half a gram to one gram. He testified further that recovery of paraphernalia used to ingest heroin, such as a straw or syringes, would be expected if possession were for personal use only. Detective Keating also testified that the possession of nearly twenty grams of heroin without any evidence of large amounts of United States currency, possession of a weapon such as a knife, and the use of a rental vehicle were consistent with a drug dealer who had just purchased a supply of heroin to deliver to others.
The defendant rested at the close of the Commonwealth's case and relied, in argument, on the absence of scales, packaging materials, a large amount of cash, or multiple cell phones in the vehicle, to support an inference that the defendant possessed the heroin for personal use only and did not intend to distribute it.
Discussion. Prosecutor's closing argument. Because there were no timely objections to anything the prosecutor said in his closing argument, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001).
The defendant first contends that it was improper for the prosecutor to ask, several times, after referencing various facts in evidence, "Doesn't that peak [pique] your interest?" This rhetorical question by the prosecutor followed his reference to the fact that the defendant was in a rental car, that he had a knife close by, and that there was a second person in the car who could have been serving as a lookout. The defendant contends that these rhetorical questions were "reasonably susceptible of being interpreted [by the jury] as a comment on [the defendant's] failure to take the stand," see Commonwealth v. Gouveia, 371 Mass. 566, 571 (1976), quoting from Commonwealth v. Domanski, 332 Mass. 66, 69 (1954), because they could have been answered only by the defendant. We disagree.
The challenged rhetorical questions, in context, simply directed the jury's attention to the evidence and invited the jury, consistent with the testimony provided by Detective Keating, to closely examine the circumstances surrounding the defendant's possession of nearly twenty grams of heroin. "A prosecutor may argue 'forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.'" Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000), quoting from Commonwealth v. Kozec, 399 Mass. 514, 523 (1987). The prosecutor's rhetorical questions in this case were not "appeals to the jury to penalize the defendant for not testifying." Commonwealth v. Buzzell, 53 Mass. App. Ct. 362, 366 (2001). In any event, the judge's final instructions to the jury emphasized that (a) closing arguments were not evidence, and (b) the defendant had an absolute right to choose not to testify, thereby disabusing the jury of any inclination to improperly interpret the prosecutor's comments.
The prosecutor's remarks did not approach the "close" question answered by the court in Commonwealth v. Pena, 455 Mass. 1, 17-19 (2009), considering a district attorney's express statement that the defendant was "the only one who knows" why he committed the crime. Even in evaluating such a direct comment referencing matters solely within the defendant's knowledge, the Pena court still concluded that it was unlikely that a jury would have interpreted the prosecutor's statement as a comment on the defendant's failure to testify. Id. at 19. See Commonwealth v. Habarek, 402 Mass. 105, 111 (1988). Also, we do not find that the prosecutor's use of the word "pique" invited the jury to question why the defendant did not testify.
The defendant also takes issue with the prosecutor's characterization of Detective Keating's opinion testimony as having concluded that possession of nearly twenty grams of heroin "unequivocally" indicates intent to distribute. In context, we believe the remark was intended to convey to the jury that Detective Keating did not waver in his testimony about the significance of the defendant's possession of nearly twenty grams of heroin, and not to suggest that Detective Keating had overstepped his bounds by expressing certainty that the defendant's possession was with the intent to distribute. The prosecutor was entitled to argue, based on the evidence, that the defendant possessed the heroin with the intent to distribute it. See, e.g., Commonwealth v. Colon, 449 Mass. 207, 224, cert. denied, 552 U.S. 1079 (2007).
Detective Keating testified on direct examination that based on the circumstances surrounding the discovery of nearly twenty grams of heroin on the defendant's person, his possession was "more consistent" with the intent to distribute than with mere possession. On redirect examination, the subject was revisited and Detective Keating was asked for his opinion on the matter. He replied, "My opinion would be for distribution." The defendant objected, but then withdrew the objection.
The portion of the prosecutor's closing argument at issue, in context, follows: The prosecutor: "Now, as far as what was found, as I stated, is really just a lot of heroin. It's not baggies. It's not scales. It's not grinders. It's not money. It's not cell phones. But you heard from Keating. And I posed this question to him directly. When you've got about 20 grams, 19.7 grams of heroin, packaged the way it was, one about ten grams and two about five grams, and you don't have anything else, what do you think? And he said unequivocally that's possession with intent to distribute. And here's why. Because even though we don't have those other things, we do have some other indicators." (The underlined sentence is the one about which the defendant complains.
Judgment affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 17, 2015.