Opinion
No. 11–P–1941.
2013-11-6
COMMONWEALTH v. Naomi RIVERA.
By the Court (GREEN, GRAINGER & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Contrary to the defendant's suggestion on appeal, the record submitted with her motion for a new trial does not establish that the condition of Dorothy Amos Park during the summer of 2009 would have entitled the defendant to directed verdicts of not guilty on the charges of distribution of a class B substance within 100 feet of a public park, had trial counsel not stipulated that Dorothy Amos Park was a public park. At most, the condition of the park, as described in the affidavits and photographs submitted with the defendant's motion, presented a question of fact, or a mixed question of law and fact, for resolution by the jury concerning whether the park was at the relevant times a “public park” within the meaning of G.L. c. 94C, § 32J. Cf. United States v. Hohn, 8 F.3d 1301, 1307 (8th Cir.1993).
In any event, we discern no abuse of discretion in the conclusion by the motion judge (who was also the trial judge and the sentencing judge) that trial counsel's expressed strategic reason for entering the stipulation was not manifestly unreasonable. As trial counsel explained, submitting to the jury the question whether Dorothy Amos Park was a “public park” within the meaning of the statute risked distracting the jury from the primary theory of the defense.
The record reflects that the basketball courts were in use as recently as three days before the first controlled buy and that, though the park was surrounded by a fence, a permanent opening allowed access into the park at all times. Indeed, as the motion judge observed, one of the three controlled buys occurred within the park itself.
The defense chose consciously to pursue a theory that would have produced a complete acquittal, and understandably did not want to cause the jury to focus significantly on resolving a question that was relevant only if the jury accepted the premise that the defendant engaged in the sales of cocaine that formed the basis for the charges.
In essence, the defense theory was that the confidential informant, who was the lone eyewitness to the exchanges that occurred during the three controlled buys, was not credible because she had bargained for lenient treatment on charges pending against her in exchange for inculpating the defendant.
There is likewise no merit in the defendant's contention that Trooper Stec impermissibly vouched for the credibility of the Commonwealth's cooperating witness. Indeed, as the trooper explained in his testimony, the police searched the cooperating witness before and after she engaged in the three controlled buys in part because such cooperating witnesses cannot always be trusted. We perceive no substantial risk of a miscarriage of justice arising from Trooper Stec's incidental observation that the police do not use informants that they consider to be unreliable (from which the defendant suggests that the jury would have inferred that the police considered the cooperating witness in the present case to be reliable). The jury surely understood that the cooperating witness, a known crack cocaine addict with pending charges against her, was searched before and after the three controlled buys precisely because the police wished to ensure by direct observation (and not mere reliance on the witness) that she possessed no cocaine before each sale, and that she retained no cash following the sale.
Judgments affirmed.
Order denying motion for new trial affirmed.