Opinion
No. 11–P–1971.
2013-04-5
COMMONWEALTH v. Dinol RAMOS.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions stemming from two armed robberies, the defendant, Dinol Ramos, argues that it was error to deny his motion to suppress a shotgun and other physical evidence seized pursuant to a search warrant. He also contends that the prosecutor exceeded the boundaries of fair argument in her closing remarks to the jury. We affirm.
A Superior Court jury convicted the defendant of two counts of armed robbery, two counts of illegal possession of a firearm, and assault and battery by means of a dangerous weapon. The defendant was acquitted of the greater offense of armed robbery while masked and additional firearms offenses.
1. The motion to suppress. The robberies were committed on August 21 and August 24, 2008, on Olney Street in Dorchester. In both instances the victims were drivers for local restaurants who were delivering take-out food to residences located at 41 and 52 Olney Street, respectively. The victims were robbed of food and money at gunpoint. Two days after the second robbery, on August 26, 2008, the Boston police executed a search warrant at the home of the defendant's cousin Jermaine Winslow who resided at 42 Olney Street with his mother, brother, and maternal grandmother. During the search, the police seized a shotgun and other items that connected the defendant (and his cousins) to the robberies.
Winslow, and two additional cousins, also were charged with similar offenses; this defendant was tried separately.
Prior to trial, the defendant filed a motion to suppress the evidence, claiming that the search was unlawful because the police had conducted the search of the premises before obtaining a warrant and because the affidavit submitted in support of the warrant failed to establish a nexus between the defendant and the place to be searched. After hearing argument, but without holding an evidentiary hearing, the judge denied the motion on the ground that the defendant lacked standing.
Another defendant, Joel Winslow, apparently filed a similar motion, and the motions were heard together by the motion judge.
The record indicates that an evidentiary hearing had been scheduled and that at least one witness was present. However, once the Commonwealth raised the issue of the defendant's standing, the judge proceeded to hear legal arguments only. During the course of the hearing the defendant (through counsel) acknowledged that he did not live at 42 Olney Street and that he was not at the home when the search at issue was conducted.
We agree with the judge's reasoning and conclude there was no error in denying the motion to suppress. As the motion judge explained, a defendant may be granted automatic standing to challenge the seizure of property in the possession of another at the time of the search “[w]hen a defendant is charged with a crime in which possession of the seized evidence at the time of the contested search is an essential element of guilt.” Commonwealth v. Amendola, 406 Mass. 592, 601 (1990). Here, possession of the shotgun at the time of the search is not an essential element of any of the charged offenses. Therefore, the defendant did not have standing to contest the legality of the search or the seizure of the shotgun.
The defendant argues, for the first time on appeal, that it was error to conclude that he lacked standing because even though he was not charged with possessing the shotgun on the day of the search, he had constructive possession of the shotgun on that day. Apart from the absence of a finding with regard to constructive possession (which, parenthetically, the record does not appear to support), the argument is unavailing because none of the charged offenses required the Commonwealth to prove that the defendant had possession (constructive or actual) of the shotgun on August 26, 2008.
Furthermore, as the judge also explained, even if we were to assume that the defendant had automatic standing, he was not relieved of the burden of establishing that he had a “constitutionally protected reasonable expectation of privacy” in his cousin's house and that society would recognize this expectation as reasonable. Commonwealth v. Duncan, 71 Mass.App.Ct. 150, 155 (2008). The judge observed, “It is undisputed that the defendants were not residents of the house. It is undisputed that they were not present at the times of the police entry and the search on August 26. The defendants' motions and affidavits do not assert that they were overnight guests on the date of the entry and search. The motions and affidavits do not assert any specific facts which would meet the defendants' burden of showing that they had a reasonable expectation of privacy in the 42 Olney Street house on the date of the police entry and search.” Thus, the defendant failed to carry his burden and, as a result, the motion to suppress was properly denied.
2. The prosecutor's closing argument. The defendant raises three challenges to the prosecutor's closing argument. First, he claims that the prosecutor improperly shifted the burden of proof to him by arguing that “nothing in the case” challenged any elements of the crimes, save identity. Next, the defendant argues that the prosecutor made an impermissible appeal for sympathy by (allegedly) pointing the shotgun at the jurors thereby putting the jurors in the shoes of the victims. The defendant's final contention is that the prosecutor vouched for the credibility of one of the victims by stating that the victim's testimony was true because he testified under oath. The defendant lodged timely objections to each challenged remark, and therefore we review for prejudicial error. See Commonwealth v. Sylvia, 456 Mass. 182, 193–194 (2010).
Viewed in the context of the entire argument, in light of the judge's instructions to the jury, and in view of the evidence presented at trial, none of the challenged remarks requires a new trial. See Commonwealth v. Barros, 425 Mass. 572, 581–582 (1997).
While the prosecutor may have spoken inartfully when she described the evidence as leaving no elements of the offenses, except identity, contested, the Commonwealth's burden did not shift to the defendant. As to whether the prosecutor crossed the boundary of proper argument when she raised the shotgun, we are satisfied that, as the judge noted, the prosecutor was using the firearm as a “rhetorical device” to emphasize her point that the victim's attention was focused on the defendant at the time of the robbery and therefore did not exceed the boundaries of fair argument.
Lastly, we do not believe that the prosecutor's remarks to the effect that one of the victim's in-court identification of the defendant was credible because the victim was testifying under oath were prejudicial to the point of requiring a new trial. The issue of identification was hotly contested, and it was apparent the victim testified reluctantly. Indeed, at one point, the victim admitted that he was afraid to identity the defendant. In these circumstances, we are not persuaded that the remarks would have been viewed by the jury as vouching for the credibility of the victim.
As noted, we consider the remarks in the context of the entire trial. Here, the evidence was strong, and the judge repeatedly instructed the jury that it was the Commonwealth's burden to prove that the defendant was guilty beyond a reasonable doubt. The fact that the jury acquitted the defendant on some of the charges convinces us that they reviewed the evidence carefully, followed the judge's instructions, and were not improperly influenced by any of the challenged remarks in the prosecutor's closing argument. See Commonwealth v. Grandison, 433 Mass. 135, 143 (2001).
Judgments affirmed.