Opinion
14-P-557
06-05-2015
COMMONWEALTH v. BRIAN VAZQUEZ-RIVERA.
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 was convicted of unlawful possession of a firearm, G. L. c. 269, § 10(a), and unlawful possession of ammunition, G. L. c. 269, § 10(h). His sole contention on appeal is that the prosecutor's closing argument, to which there was no objection, created a substantial risk of a miscarriage of justice. We affirm.
The defendant was acquitted of discharging a firearm within 500 feet of a dwelling, G. L. c. 269, § 12E, and the Commonwealth nolle prossed the one count of receiving stolen property, G. L. c. 266, § 60.
Based on the evidence presented at trial, the jury could have found that in the early morning hours of February 25, 2013, Holyoke police Officer Jeffrey Joniec was on patrol in his cruiser when he heard shots being fired. Upon investigation, he observed a man ducking behind a car and three other men standing approximately fifty feet away. One of the three men, later identified as the defendant, stuck his arm into a snow bank; and it looked to Officer Joniec that "he was putting something in the snow bank." All three men were detained until back-up assistance arrived. When Officer Walber Borrego arrived, he was directed by Officer Joniec to an armed-sized hole in the snow where he retrieved a handgun containing five spent shell casings.
At trial, the defendant challenged Officer Joniec's ability to identify him as the person who had placed the firearm in the snow bank. Defense counsel vigorously cross-examined Officer Joniec on this point, and argued in her closing that Joniec could not be "trust[ed]" because "[h]e was too distracted, he was too far away, it was too dark, and these three men all looked similar."
The defendant argues that in closing argument the prosecutor impermissibly vouched for the credibility of Officer Joniec and the other police officers who testified when he told the jury that the officers did not have "any ax to grind" and that "[the officers] testified merely to what they observed and what they heard." According to the defendant, in a case where the identity of the defendant was the central issue, the remarks amounted to reversible error.
While we do not approve of the comments, when they are viewed "in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial," Commonwealth v. Allison, 434 Mass. 670, 687 (2001), we are convinced that they "did not 'materially influence[]' the guilty verdict[s]," and thus, did not create a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We recognize that it is likely the prosecutor was referring to the credibility of the officers as percipient witnesses and was not suggesting that the officers should be believed simply because of their position. Nonetheless, comments like those at issue here are susceptible of more than one interpretation and should be avoided.
Judgments affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 5, 2015.