Opinion
14-P-1030
09-24-2015
COMMONWEALTH v. ADONIS REYES.
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, Adonis Reyes, appeals from his conviction of trafficking in twenty-eight grams or more of cocaine. He contends that (1) the destruction of the cocaine prior to trial prejudiced the defendant, (2) there was insufficient evidence of the defendant's guilt, (3) the prosecutor's improper remarks during closing argument created a substantial risk of a miscarriage of justice, and (4) the judge erred in refusing to conduct an individual voir dire regarding the defendant's right not to testify at trial. We affirm.
The defendant was also indicted on a charge of selling cocaine in a school zone, but a nolle prosequi was entered by the Commonwealth.
Discussion. Destruction of evidence. For the first time on appeal, the defendant contends that the Commonwealth's destruction of the cocaine after his first trial resulted in the loss of exculpatory evidence. Passing on whether this argument was waived below, the defendant is required to "demonstrate the exculpatory nature of the destroyed evidence, by establishing 'a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [material] would have produced evidence favorable to his cause.'" Commonwealth v. Sanford, 460 Mass. 441, 447 (2011), quoting from Commonwealth v. Neal, 392 Mass. 1, 12 (1984).
The defendant was originally tried and convicted of both trafficking and school zone charges in March, 2007. The cocaine was destroyed in May, 2010, after police received a destruction order. The convictions, however, were later vacated by the Appeals Court. See Commonwealth v. Santana, 77 Mass. App. Ct. 1118 (2010). A retrial was held in January, 2011. No motion to dismiss was filed in this case. Rather, the Commonwealth raised the issue prior to trial and both the Commonwealth and the defendant agreed that no reference would be made to the destruction of the evidence to avoid inadvertent reference to the prior trial and convictions.
The defendant now maintains that the physical presence and appearance of the cocaine would have highlighted the differences between the cocaine found on his person and the drugs found in the car, making it more probable that the jury would believe his defense that he neither knew about nor intended to distribute the cocaine found in the car.
We note at the outset that the defendant made a strategic decision at trial to forbear any argument based on the destruction of evidence. See note 2, supra; Commonwealth v. Roderiques, 462 Mass. 415, 428 (2012) ("The consequences of trial tactics may not be converted after conviction into alleged errors by the judge") (citation omitted). Turning to the merits of the argument, "on the record before us, which includes specific and extensive documentation" about the type, purity, component parts, color, and texture of the cocaine found on the defendant's person and in the car, "the defendant's assertion . . . is based on surmise and speculation." Commonwealth v. Williams, 455 Mass. 706, 720 (2010). "Because the defendant has failed to satisfy his initial burden of establishing 'a reasonable possibility' that 'access to the [cocaine] would have produced evidence favorable to his cause,' we need not balance the Commonwealth's culpability, the evidence's materiality, and the prejudice to the defendant." Commonwealth v. Corliss, 470 Mass. 443, 454 (2015) (citation omitted).
Sufficiency. The defendant contends that the evidence was insufficient to establish that he possessed the rock cocaine seized from the console of the car. "Proof of constructive possession requires the Commonwealth to show 'knowledge coupled with the ability and intention to exercise dominion and control.'" Commonwealth v. Escalera, 462 Mass. 636, 649 (2012), quoting from Commonwealth v. Boria, 440 Mass. 416, 418 (2003). While "[p]resence in the same automobile as illegal drugs, 'without more, is not sufficient evidence to warrant a finding of possession, . . . [p]resence in the same vehicle supplemented by other incriminating evidence, . . . may suffice to show knowledge or intent to control,' and thus may support a finding that the defendant 'possessed' the cocaine." Commonwealth v. Sinforoso, 434 Mass. 320, 327 (2001), quoting from Commonwealth v. Garcia, 409 Mass. 675, 686-687 (1991).
The defendant conceded that he possessed the powder cocaine found on his person.
In the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found that the defendant was driving a vehicle and that crack cocaine and a digital scale were located in plain view in the console next to the driver's seat. See Commonwealth v. Daley, 423 Mass. 747, 752 (1996) ("Knowledge may be inferred when the contraband is found in plain view in an area over which the defendant has control"); Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 416 (1996) ("The defendant's control over the car supports an inference that he was acquainted with its contents"). The defendant's motion for a required finding of not guilty was properly denied.
Prosecutor's closing argument. For the first time on appeal the defendant maintains that the prosecutor improperly commented on the defendant's motive to lie during closing argument.
"A prosecutor may not assert his or her personal opinion as to the credibility of a witness or the guilt of an accused. . . . However, the prosecutor may comment on evidence developed at trial and draw inferences from such evidence. Commonwealth v. Bradshaw, 385 Mass. 244, 275 (1982). In addition, the prosecutor may make a fair response to an attack on the credibility of a government witness." Commonwealth v. Chavis, 415 Mass. 703, 713 (1993).
Here, the prosecutor responded to defense counsel's attack on the credibility of the Commonwealth's witnesses, see Commonwealth v. Smith, 450 Mass. 395, 408 (2008); Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 253-254 (2001), by arguing, as permitted, that the defendant was not credible. See Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990) ("[A] prosecutor may argue that defense witnesses, including the defendant, are not credible"). In the context of the closing arguments, we conclude there was no error.
During defense counsel's closing argument he made the following statement regarding the Commonwealth's witness, Trooper O'Neil: "They're all in it together. He knows all of these people. And who knows how they socialize together. That man is not independent, and you should not regard him as being independent. He wants to come across like he doesn't have a stake in this case, but you better believe he does have a stake in the case. They're troopers. He's a trooper." In response, at the start of the prosecutor's closing argument, he stated: "Isn't it interesting that [defense counsel] criticizes Trooper O'Neil for not being an impartial witness, not being independent when he gave you his expertise, and then tells you, well, you can believe the defendant. But he's independent, he's impartial. He has absolutely no reason to lie, does he? Of course he does. Of course he does."
This case is therefore akin to Commonwealth v. Ortega, 441 Mass. 170, 181-182 & n.19 (2004), and distinguishable from Commonwealth v. Niemic, Supreme Judicial Court, No. SJC-11535, slip op. at 15-17 (Sept. 17, 2015).
Individual voir dire. The defendant argues that the judge abused his discretion in denying his request to conduct individual voir dire of each prospective juror at sidebar regarding the defendant's right not to testify. "The scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous." Commonwealth v. Lopes, 440 Mass. 731, 736 (2004).
The defendant's assertion that he testified only because the judge declined to conduct individual voir dire, a contention made for the first time on appeal, is unsupported by the trial record. In addition, there was no motion for new trial, no evidence on this point, and thus no findings and rulings by the judge.
The judge denied the defendant's request, stating that he would "cover that subject matter as I customarily do not only with respect to the right not to testify, but also with the presumption of innocence and the burden of proof." He did so. The judge found the jurors fair and impartial.
The judge stated: "First, the defendant is presumed to be innocent unless and until he is proven guilty by the Commonwealth; Second, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant is guilty, failing which the defendant must be found not guilty by the jury; Third, the defendant is not required to present any evidence on his own behalf and is under absolutely no obligation to testify himself in this trial."
At the time of trial the circumstances in which individual voir dire was mandatory were extremely narrow. See Commonwealth v. Reavis, 465 Mass. 875, 889 (2013). "Where, as here, neither statute nor case law mandate[d] [additional] individual questioning on voir dire, we defer 'to the judge's determination that the chosen jurors were fair and impartial.'" Commonwealth v. Lao, 443 Mass. 770, 778 (2005), quoting from Commonwealth v. Lopes, supra at 738. In the absence of such a mandate, the defendant must show actual prejudice. "The defendant has not indicated, nor does the record suggest, that any of the jurors selected were not fair and impartial." Commonwealth v. Reavis, supra at 890. "We conclude that the judge did not abuse his discretion in refusing to conduct an individual voir dire of the potential jurors." Commonwealth v. Lao, supra.
Judgment affirmed.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 24, 2015.