COMMONWEALTH vs. MARWAN M. ALMELE
Supreme Judicial Court of Massachusetts
July 12, 2016
474 Mass. 1017
Controlled Substances. Evidence, Expert opinion. Witness, Expert. Practice, Criminal, Objection, Motion in limine, Striking of testimony.
appellate court asks, on case-by-case basis, to detеrmine whether improper prosecutorial argument constitutes reversible error). If, after such a review, we are left with uncertainty that the defendant‘s guilt has been fairly adjudicated, wе will order a new trial. Azar, supra.
Here, the prosecutor‘s improper remarks arguing that the complainant was credible because she was willing to testify at trial; attributing her knowledge of sexual terminology to the alleged assaults, without an adequate and a specific basis in the record that excluded other possible sources of such knowledge; and implying that there werе more witnesses that were not brought before the jury that would have corroborated the first complaint testimony — went directly to the jury‘s assessment of the complainant‘s testimony and credibility, which was the core of the Commonwealth‘s case. Beaudry, 445 Mass. at 585.
This is not a situation where erroneous closing statements were offset by overwhelming evidence of a defendant‘s guilt. The Commonwealth‘s case depended heavily on the complainant‘s testimony, and hence her credibility. Some of the complainant‘s testimony might have seemed implausible, including that nearly all of the time that the defendant sexually assaulted her on the couch in the living room, his girlfriend was present, either sleeping in the living room on another couch or in the defendant‘s bedroom. There were no other eyewitnesses. The Commonwealth offered only limited additional testimony from the complainant‘s mother regarding the complainant‘s relationship with the defendant, and from the complainant‘s friend, who was the first complaint witness. There was no physical evidence.
Finally, this is not a case where strong curative instructions offset the impact оf improper argument. With respect to witness credibility and closing arguments, the judge merely gave the general instructions. These instructions did not specifically address, and were not enough tо cure the cumulative effect of, the particular errors we have identified.
Because we are left with a serious doubt whether the result of the trial might have been different had the рrosecutor‘s errors in closing argument not been made, we conclude that there was a substantial risk of a miscarriage of justice. Based on our review of the entire case, wе cannot be certain that the defendant‘s guilt was fairly adjudicated. In these circumstances, a new trial is necessary.
4. Conclusion. The judgments are reversed, the verdicts set aside, and the case is remanded to the Superior Court for a new trial.
So ordered.
Merritt Schnipper for the defendant.
Katherine E. McMahon, Assistant District Attorney (Eileen M. Sears, Assistant District Attorney, also present) for the Commonwealth.
COMMONWEALTH vs. MARWAN M. ALMELE. July 12, 2016. Controlled Substances. Evidence, Expert opinion. Witness, Expert. Practice, Criminal, Objection, Motion in limine, Striking of testimony.
A jury in the District Court convicted the defendant of possession of a class B controlled substance, in violation of
Prior to the start of the trial, the Commonwealth filed a motion in limine seeking to introduce the opinion testimony of a police officer, Lieutenant Dennis Ledo, as an expert witness. The defendant objected to allowing Ledo to testify on the basis that the “expert opinion” that Ledo would offer was within the jury‘s common knowledge, and that аny such testimony would be more prejudicial than probative. At the conclusion of the voir dire hearing on the motion, the judge ruled that he would allow Ledo to testify as an expert. The judgе then noted “for the record” the defendant‘s objection for “the reasons as stated [by the defendant] plus any other reasons” and further stated that he was “preserving” the defendant‘s оbjection “even during the trial . . . so, we don‘t get into that situation where the Appellate Court reviews . . . [under] a heightened standard because there was no objection.”
At trial, the prosecutor initially asked Ledo, hypothetically and on the basis of his training and experience, what significance it would have to him if a person had in his or her possession a certain quаntity of prescription drugs packaged in a specific way. The defendant objected. The judge noted the objection and then gave the jury a detailed explanation of еxpert testimony, its purpose, and how the jury might consider that testimony. The prosecutor then resumed questioning Ledo and again asked for his opinion. Ledo responded that his “opinion wаs that the . . . drugs that were found on the [d]efendant were intended for distribution.” Although the defendant objected to the initial question from the prosecutor that led to this testimony, he did not move to strike Ledo‘s answer as improper. Cf. Commonwealth v. Womack, 457 Mass. 268, 272-273 (2010), and cases cited; Commonwealth v. Cancel, 394 Mass. 567, 571 (1985).
In his appeal, the defendant argues, among other things, that Ledo impermissibly offered an opinion as to the defendant‘s guilt. On the basis that the defendant did not “properly preserve[] his claim that the Commonwealth‘s drug expert erroneously intruded on the jury‘s function by offering his opinion of the defendant‘s guilt,” the Appeals Court reviewed the claim “to determine whether a substantial risk of a miscarriage of justice was created,” rather than to determine whether, as the defendant argued, the error was prejudicial. Almele, 87 Mass. App. Ct. at 224. We agree with the Appeals Court that the defendant did not preserve the particular error about which he now complains, and that the error should therefore be reviewed to determine whether it created a substantial risk of a miscarriage of justice.
In Commonwealth v. Grady, 474 Mass. 715, 718-721 (2016), which we also decide today, we elaborate on the circumstances in which a defendant‘s objection mаde in the context of a motion in limine might excuse the need for a contemporaneous objection at trial. As we state in Grady, we will no longer distinguish between pretrial objections made on constitutional grounds and those made on other grounds — an objection made in a motion in limine, regardless of its basis, will preserve a defendant‘s appellate rights regardless оf whether the defendant objects at trial. Id. at 719. A significant limitation on the preservation of rights remains, however: if a defendant fails to object to the admission of certain evidence at trial, his or her appellate rights are only “preserved” if the specific issue at trial was the same issue at the motion in limine stage. See id. The better practice, thereforе, is for a defendant to object at trial even if he or she has already raised an objection prior to trial.
This is further demonstrated by the judge‘s instruction to the jury at the time of Ledo‘s trial testimony, an instruction that went to the nature and need for expert opinion testimony in general. The judge, in other words, was addressing the issue of Ledo testifying at all, not the specifics of that testimony. Additionally, the judge‘s indication, at the motion in limine stage, that the judge was “preserving” the defendant‘s rights did not lull the defendant into thinking that he need not object — he did object, when the prosecutor asked for Ledо‘s opinion, and the judge rightly overruled the objection because the question was not improper. What the defendant failed to do, however, was to move to strike the very testimony that, on appeal, he argues was improper — Ledo‘s answer, which impermissibly offered an opinion as to the defendant‘s guilt.
We have thus reviewed the error to determine whether it created a substantial risk of a miscarriage of justice, and for essentially the reasons set forth in the Appeals Court‘s opinion, we too conclude that the error in question did not сreate such a risk.1 As to the other issues raised by the defendant, we also hold, again for the reasons given in the Appeals Court‘s opinion, that there was no error in permitting the jury to consider certain statements as made during the course of the joint venture, and that the evidence was sufficient to permit a finding that the defendant had engaged in that joint venture.
Judgments affirmed.
Patrick A. Michaud for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.