Opinion
14-P-1780
04-19-2016
COMMONWEALTH v. WAYNE A. STEED.
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
Having been found guilty by a Boston Municipal Court jury of carrying a dangerous weapon (a knife), in violation of G. L. c. 269, § 10(b), the defendant now appeals. We affirm.
1. We are unpersuaded by the defendant's contention that the trial judge erred when he denied the defendant's motion for a required finding of not guilty. The pertinent parts of G. L. c. 269, § 10(b), as appearing in St. 1974, c. 649, § 2, provide, "Whoever, except as provided by law, carries on his person, or carries on his person or under his control in a vehicle . . . any knife having an automatic spring release device by which the blade is released from the handle, having a blade of over one and one-half inches . . . shall be punished." Here, the Commonwealth presented evidence that the defendant, at the time he was arrested, was armed with a knife of the type described in the statute. Officer Dervan testified that he personally examined the knife after the arrest. He demonstrated in front of the jury that the blade of the knife could be released automatically, with little human interaction, by the mechanism of a spring. The Commonwealth also introduced the knife in evidence. The jury was thus permitted to make its own determinations of the spring-released functionality of the knife. Under the familiar standard, Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the denial the motion for a required finding of not guilty was proper because "there was sufficient evidence of the defendant's guilty to warrant the submission of the case to a jury." Commonwealth v. Kelley, 370 Mass. 147, 150 (1976), quoting from Commonwealth v. Altenhaus, 317 Mass. 270, 271 (1944).
We note that we do not enjoy the same benefit, and therefore occupy an inferior position relative to the jury to assess the sufficiency of the evidence.
2. For the first time on appeal, the defendant claims that Officer Dervan offered impermissible expert testimony. There having been no objection, we consider whether the testimony, if error, caused a substantial risk of a miscarriage of justice. Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). There was no error, and thus no risk of a miscarriage of justice.
That testimony, which the defendant now contests, does not fall outside the common experience of jurors and therefore is not expert testimony. Officer Dervan's testimony was based on his experience and perceptions as a witness of the knife, and not on specialized knowledge. It centered on the functioning of a spring, an object which the average juror encounters in the functioning of everyday items. This was permissible lay opinion, "(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge." Commonwealth v. Canty, 466 Mass. 535, 541-542 (2013), quoting from Mass. G. Evid. § 701 (2013). Where Officer Dervan did not provide any expert testimony, there is no merit to the defendant's contention that "[d]efense counsel should have been noticed of this potential opinion testimony so that it could have been the subject of a Motion in Limine."
3. The defendant claims that Officer Dervan's testimony improperly touched upon an ultimate issue and therefore invaded the province of the jury. We disagree. Officer Dervan only testified as to how and in what manner the knife functions; he did not speak to the innocence or guilt of the defendant. In any event, "[p]rovided that a witness does not directly offer an opinion regarding the defendant's guilt or innocence in a criminal case, we have no rule in Massachusetts prohibiting an opinion that touches on an ultimate issue." Commonwealth v. Canty, supra at 543 (citation omitted). "Any . . . risk [that the jury would forego independent analysis of the facts] was diminished by the judge's explicit final instruction to the jury that they ultimately must determine whether the defendant was [guilty of the crime charged]," and by the fact that the jury took the knife into the deliberation room. Id. at 545.
4. The defendant's contention that the prosecutor engaged in misconduct in his closing by using the word "automatically" has no merit. The prosecutor's description of the knife as having a blade that came out "automatically" was a proper argument supported by Officer Dervan's demonstration of the knife, and the knife itself, which was in evidence for the jury to examine. See Commonwealth v. Ridge, 455 Mass. 307, 330 (2009). Moreover, it was in fair reply to the defendant's closing, in which he stated that the knife "is not an automatic knife under the terms of the law." See Commonwealth v. Smith, 404 Mass. 1, 6-7 (1989). In any event, even if error, there was no substantial risk of a miscarriage of justice. The prosecutor used the word "automatically" three times, and the judge immediately instructed the jury that closing arguments are not evidence and that they are the sole finders of fact.
We note that according to a stipulation regarding reconstructing the record, the defendant objected to the use of the word "automatic" by the prosecutor in his closing argument.
5. The defendant's claims of ineffective assistance of counsel are unpersuasive. We note that "the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). The defendant has failed to do so. That being said, we conclude that his claims fall "within that narrow category of claims that an appellate court can resolve on the trial record alone." Id. at 811-812. The defendant asserts that counsel provided ineffective assistance by failing to object to inadmissible opinion testimony by Officer Dervan. As noted above, we rejected those claims by the defendant, and therefore there is "no basis for an ineffective assistance of counsel claim." Commonwealth v. Curtis, 417 Mass. 619, 625 n.4 (1994). There is also no merit to the defendant's assertion that counsel was ineffective because he did not ask the judge to instruct the jury on the "legal definition of automatic." As is apparent to the defendant, who relies on a secondary source for a definition, there is no "legal" or statutory definition of "automatic." Furthermore, the record does not support the defendant's assertion that in failing to request that the judge instruct upon the definition of "automatic," counsel withdrew the theory of the defense from the jury's consideration. In fact, the judge instructed the jury that the Commonwealth had to prove beyond a reasonable doubt that "the item involved is a knife having an automatic spring-release device by which the blade is released from the handle and having a blade of over one and a half inches."
Judgment affirmed.
By the Court (Green, Katzmann & Grainger, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: April 19, 2016.