Opinion
14-P-376
02-11-2015
COMMONWEALTH v. HAROLD J. SAUNDERS.
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, Harold J. Saunders, was convicted of possession of cocaine with intent to distribute, subsequent offense, after he was searched and drugs were discovered on his person. He makes several arguments on appeal. We affirm.
Sufficiency of the evidence. Review of a defendant's motion for a required finding is limited to examining whether sufficient evidence existed for the case to go a jury and whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Commonwealth v. Platt, 440 Mass. 396, 400 (2003).
On December 4, 2012, Barnstable police were conducting surveillance of a rooming house in Hyannis. A police detective had previously observed the defendant at this house "[s]everal times, in approximately two months prior." The defendant was observed "coming and going from that residence, to and from at all hours of the day and night." Police observed the defendant and a woman, later identified as Lori Kaplan, leave the house and travel toward Quincy to various locations, and then back toward Cape Cod.
While the trial transcript and parties' briefs do not indicate a specific reason that police were conducting surveillance at the house, or why they decided to follow the defendant on his trip, it appears evident that a suspicion of drug activity or other illegality was at play.
After the police stopped the defendant's vehicle, and received inconsistent and false statements in response to questions regarding the places where the defendant and the woman had stopped, a search revealed no drugs; a trained dog, however, made an alert to the defendant's buttocks area. The defendant and Kaplan were taken to the police station and searched again, wherein two baggies of crack cocaine, later weighed at 6.55 grams, were discovered in the area of the dog's alert.
The police then went to the rooming house with Kaplan and, in the room, found items bearing the defendant's name, including a prescription bottle, a "birth registration card," and State disability documentation papers, as well as plastic corner-cut baggies and an empty digital scale box.
The main complaint of the defendant appears to be that there was an insufficient nexus between him and the room. Given the police surveillance of the defendant's comings and goings to that location as well as his personal papers found therein, sufficient evidence existed connecting the defendant to the room. Compare Commonwealth v. Boria, 440 Mass. 416, 419-421 (2003).
The evidence seized from the room and the drugs seized from the defendant, coupled with the expert testimony, discussed below, were sufficient to warrant conviction.
Expert testimony. Added to the incriminating facts was the testimony of an expert witness, whose testimony the defendant also challenges.
A hypothetical question to an expert witness must contain a factual predicate in the evidence, Commonwealth v. Rosario, 21 Mass. App. Ct. 286, 289 (1985), whereupon an expert may testify that in his opinion an amount of drugs possessed by a defendant is consistent with an intent to distribute. Commonwealth v. Little, 453 Mass. 766, 769 (2009).
Here, the hypothetical question to the trooper had a factual basis, see Commonwealth v. Rosario, 21 Mass. App. Ct. at 289, and the expert could properly offer his opinion in response to the question. See Commonwealth v. Little, 453 Mass. at 769. That, at some point, the expert may have not used the preferred language, "consistent with," when answering a question is not fatal to the Commonwealth's case. We note that the prosecutor used the preferred language in framing the question. See ibid.
The defendant elicited some of the responses that he now claims are problematic on cross-examination and failed to move to strike. There was no substantial risk of a miscarriage of justice. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 160 (2010) (expert testimony that allegedly constitutes impermissible opinion on defendant's guilt is reviewed only for substantial risk of miscarriage of justice if there was no objection).
Closing argument. The defendant argues that the prosecutor's closing improperly vouched for the credibility of Trooper McCabe and included other prejudicial misstatements.
The Commonwealth concedes, and we agree, that the prosecutor's use of the phrase "hired gun" in his closing was improper, as was the prosecutor's mistaken reference to "male clothing" found in the room when no such evidence was presented to the jury (although it was testified to during a voir dire).
A prosecutor may not vouch for a witness's credibility during closing arguments but may "state logical reasons why a witness's testimony should be believed." Commonwealth v. Sanders, 451 Mass. 290, 297 (2008). Improper remarks are reviewed "in light of the entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial." Commonwealth v. Tu Trinh, 458 Mass. 776, 785 (2011) (quotation marks omitted). Isolated remarks do not necessarily render an entire closing improper if "the argument properly concentrated on the evidence presented at trial." Ibid.
Here, the prosecutor stated in his closing that the trooper was credible and then provided reasons why. When viewed as a whole, the closing properly concentrated on the evidence at trial. See ibid. The judge's jury instructions, which the jury are presumed to follow, informed them as to how such argument is to be considered. See Commonwealth v. Maynard, 436 Mass. 558, 571 (2002).
We have reviewed all of the defendant's arguments, including the judge's identification of defense counsel as working for the Committee for Public Counsel Services during jury selection and the judge's denial of the defendant's waiver of a jury trial, and discern neither error nor the need to discuss them further. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Judgment affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 11, 2015.