Opinion
16–P–200
05-10-2017
COMMONWEALTH v. Alexander SIFUENTES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of unlawful possession of a firearm without a license, unlawful possession of ammunition without a firearm identification card, and discharging a firearm within 500 feet of a building. On appeal, he claims there was insufficient evidence that he possessed or discharged the gun, and that the prosecutor's closing argument was unfairly prejudicial. We affirm.
1. Firearm charges. The defendant claims that there was insufficient evidence that he possessed and discharged a firearm at the crime scene, and therefore the judge improperly denied his motion for a required finding of not guilty. Specifically, he claims that there was insufficient evidence to establish the length of the barrel of the firearm, the operability of the firearm, and if, in fact, the defendant actually discharged the firearm. We disagree.
"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). See Commonwealth v. Harnett, 72 Mass. App. Ct. 467, 475 (2008). Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, supra." Commonwealth v. Bell, 83 Mass. App. Ct. 82, 83–84 (2013).
At trial, two witnesses testified that they saw the defendant with the gun and saw him fire the gun, and another testified that there was evidence, i.e., the shell casings, that showed a firearm had been discharged. Also, three witnesses described the weapon as having a barrel less than sixteen inches long. This evidence also permits the inference that the firearm was operable. See Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997) (burden "requires only that the Commonwealth present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire"). Although the firearm was never recovered, the testimony of the eyewitnesses was supplemented by the spent shell casings and crime scene photographs. See Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993) ("The inferences suggested by the prosecutor need only be reasonable and possible and need not be necessary or inescapable"). A reasonable juror could infer that the defendant did possess the firearm, and did fire the firearm at the crime scene.
The defendant also argues that witnesses' testimony is not enough to establish the sufficiency of the evidence, and criticizes the Commonwealth for failing to present deoxyribonucleic acid (DNA) evidence, of which there was none found. The shell casings, expert testimony, and eyewitness testimony presented by the Commonwealth provided the jury with sufficient evidence to support a verdict of guilty beyond a reasonable doubt on all three counts. The Commonwealth was not obligated to present DNA evidence to prove the defendant's guilt. The denials of the defendant's motions for required findings of not guilty as well as his motion pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995), were proper.
2. Closing argument. a. Misstatements of law. The defendant claims that the prosecutor misstated the law and evidence in his closing argument. We disagree. Because the defendant failed to object to the closing argument at trial, we review the prosecution's argument to determine if there was error, and if so, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
First, the defendant claims that the prosecutor misstated the law when he told the jury: "What I need to prove boils down to two essential questions: Did somebody on June 16 of 2013 fire a gun and was that item a gun?" Though this was a simplified version of what the prosecutor's burden was, the judge's instructions to the jury informed them of the elements needed to prove each charge, and explained that it is the Commonwealth's burden to prove the alleged offenses.
Second, the defendant claims that the prosecutor's argument relative to the firearm being operable misled the jury on the burden of proof. We disagree. Taken in the context of the entire closing argument, see Commonwealth v. Delong, 60 Mass. App. Ct. 122, 133 (2003), the prosecutor argued to the jury that the defendant was the one who fired the firearm on June 16, 2013. He emphasized the testimony of the witnesses, all four identifying the defendant as the one who possessed and/or fired the gun. The substance of the prosecutor's statement, "That's one of the things that I need to prove to you; that the gun used on this day was operable," was a correct statement of the law. See Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997). Contrary to the defendant's argument, the fact that more than one firearm was discharged that night does not heighten the burden placed on the Commonwealth to prove that his firearm was operable. See Commonwealth v. Nieves, 43 Mass. App. Ct. at 2. Furthermore, the judge instructed the jury on the Commonwealth's burden of proof regarding the operability of the firearm. The prosecutor did not misstate the law, and thus, there was no risk that justice miscarried.
b. Misstatements of evidence. The defendant also contends that the prosecutor made misstatements regarding the evidence in his closing argument. We disagree. The defendant claims there was not an evidentiary basis for the prosecutor's argument that "all four witnesses told you the same thing" regarding the identity of the defendant. However, the prosecutor's argument was properly grounded in the evidence, and permissible inferences therefrom, as each witness provided either testimony that he saw the defendant discharge a weapon or that he or she saw the defendant, with a gun, in the immediate area where a weapon was discharged near in time to hearing the weapon discharge. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999).
The defendant also claims the prosecutor misstated the evidence by his reference to a single gun, claiming it was a "gross misrepresentation of the evidence actually presented at trial." The defendant's argument fails to cite to the record to support his claim, and the claim is thus waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, the prosecutor referenced two shooters, and argued that the defendant was one of the two shooters. There was no error, and thus, no risk of a miscarriage of justice.
c. Witness vouching and appeal to emotion. The defendant claims that the prosecutor improperly vouched for two witnesses in his closing argument, and attempted to appeal to the jury's emotions and sympathy. We disagree. First, the defendant takes issue with the description of Sergeant Murphy's testimony, and the prosecutor's statement concerning Murphy's years of police experience. A prosecutor may comment on an officer's years of experience in his closing argument. See Commonwealth v. Kee, 449 Mass. 550, 560 (2007). This was not improper.
Second, the defendant argues that the prosecutor improperly vouched for civilian witness Aaron Smith, submitting a personal opinion as to the truthfulness of his testimony. Smith testified pursuant to a cooperation agreement with the Commonwealth. In the defendant's closing argument, counsel attacked Smith's credibility in light of the cooperation agreement. The Commonwealth permissibly responded to this attack. See Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). The response included a suggestion as to why the jury should credit his testimony, not a personal opinion on Smith's credibility. See Commonwealth v. Guy, 441 Mass. 96, 113 (2004) ("[I]t is certainly proper for counsel to argue from the evidence why a witness should be believed" [quotation omitted] ).
Finally, contrary to the defendant's claim, the prosecutor did not improperly engage in appeals to the emotions and sympathy of the jury. Specifically, the defendant claims that the prosecutor's argument concerning Shannon Southerland's testimony, describing her observations of the defendant taking out the gun in broad daylight and "brandishing [it] as brazen as can be" mischaracterized her testimony in order to appeal to the emotions of the jury. However, this was not an overstatement of the evidence presented, as Southerland testified that she saw the defendant take the gun out of the towel, and joked that "if you are going to have a gun passed to you, you should at least go in the car." In fact, when asked if the defendant attempted to hide what he was doing when receiving the gun, she answered, "No." She witnessed this occurring in the afternoon on Father's Day. The prosecutor's inference that it was daylight, and that she could clearly see the gun, was directly supported by Southerland's testimony. See Commonwealth v. Duguay, supra. There was no error, and again, no risk that justice miscarried.
Judgments affirmed.