Commonwealth v. BerrioCommonwealth v. Berrio
The defendant was convicted by a Superior Court jury of so much of an indictment for trafficking in cocaine in an amount more than two hundred grams,
We briefly recite the pertinent facts.
1. Instruction on prima facie evidence. As part of its case-in-chief, the Commоnwealth introduced a certificate of analysis purporting to indicate the weight and purity of the drugs seized. In instructing the jury on its evidentiary value, the judge stated that the certificate was “prima facie evidence of the composition and the quality and the net weight of the substance.” The judge then went on to explain that the term “prima facie” indicated “that the certificate is evidence in this case and it may be considered by you along with all the other evidence in this case in deciding whether or not the substance was in fact cocaine.” The defendant asserts on appeal that the judge’s charge impermissibly shifted the burden of proof. Since the defendant failed to object to the contested instruction our review is limited to determining whether any misstep сreated a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman,
When instructing a jury on the use of so-called prima facie evidence, it is essential that the judge convey to the jury the sense that such evidence carries no particular presumption of validity. See Commonwealth v. Claudio,
Here the judge’s charge adequately emphasized the fact that the certificate of analysis was like any other piece of evidence in the case, to bе accepted or rejected according to the judgment of the jury. There was no suggestion in the contested instruction that the certificate enjoyed any special evidentiary status. In particular, the judge at no time indicated that the assertions сontained in the certificate must be accepted absent some rebuttal by the defendant. Indeed, the judge elsewhere charged the jury that “in every criminal case ... the burden of proving guilt is on the Commonwealth. It has that burden throughout the entire trial. The defendant never has any burden to prove his innocence or to produce any evidence . . . (emphasis added).”
As we have often repeated, a trial judge is not constrained to use any particular language in his instructions; rather, he is required only to provide a full and accurate explanation of the governing law applicable to a particular case. See Commonwealth v. Albert,
2. Prosecutorial vouching. During his closing argument, the prosecutor stated:
“If you can’t get into somebody’s mind tо see what they were thinking or what they intended or what they knew but you take the facts and you analyze them. Number one, is what you heard true. Not just what was said on the witness stand, the exhibits that went in, the way the witness looked when he testified to you. Did what he say make sense? Did what he sаy ha[ve] a ring of truth? Was there even any reason to lie? I submit to you that the credibility of the officers that testified yesterday is not in question in this case. I submit to you that there is no dispute as to the evidence that was seized pursuant to that search warrant on July 6 of ‘89” (emphasis added).
We start with the settled proposition that assertions of personal opinion by a prosecutоr as to the credibility of witnesses are prohibited. Commonwealth v. Chavis,
In point of fact, the defendant never challenged any of the factual assertions of the police witnesses. Rather, his defense cоnsisted entirely of an attack on the sufficiency of the evidence linking the defendant to the apartment and, by extension, the drugs found therein. When the prosecutor stated that “the credibility of the officers that testified yesterday is not in question in this case,” and “therе is no dispute as to the evidence that was seized pursuant to that search warrant,” he was providing an accurate assessment of the state of the evidence at the end of the defendant’s trial. While the prosecutor’s use of the first-person voiсe was unfortunate, we conclude that, in the end, there was no error. See Commonwealth v. Howe,
It is significant to note that the defendant’s trial counsel made no objection to the contested portion of the prosecutor’s argument, a good indication that he too “did not consider ‘the tone, manner, and substance’ of the . . . statement ... to be harmful.” Commonwealth v. Stewart,
3. Ethnic bias. Finally, the defendant argues that the testimony of one of the police witnesses impermissibly injected the issue of ethnic bias into the proceedings. Specifically, the defendant points to an exchange that оccurred during the direct examination of State trooper Mark Marrón (who had been qualified by the judge as an expert on the packaging and sales of illegal drugs):
Q. Based upon your training and experience, sir, do you have an opinion as to range оf price that just one gram of cocaine would fall under back in 1989?
A. The price could fluctuate anywhere from, say, $60 up to $120.
Q. What are the factors that cause the price to fluctuate between $60 and up?
A. I’ve found that in the city the prices tend to be a little lower. Different groups are selling their drugs. Hispanics, their prices tend to be lower. In the suburbs, the prices go up, tend to be high.
The defendant argues that since he is Hispanic, the jury might have convicted him, at least in part, on the basis of group associatiоn. As with the defendant’s other claims, there was .no objection at trial to the reference to “Hispanics.” Again, therefore, we apply the Freeman standard in conducting our review.
We begin by emphasizing that the use of ethnic characterizations have no place in criminal trials. Any suggestion that a defendant, merely by virtue of his membership in a particular ethnic group, was thereby more likely to have committed the crime charged would be grossly improper and, most likely, grounds for reversal. However, this is not to say that every
To illustrate this point, we compare Commonwealth v. Gallego,
By contrast, in Munera, the prosecutor made several references to the specific modus operandi of Colombian drug traffickers, as distinct from other groups involved in selling illegal drugs. After a careful reviеw of the record, we concluded that the prosecutor in Munera “did not refer ‘to race or national origin principally to inflame jurors or appeal to their racial biases or ethnic prejudices or fears,’ . . . but rather, as a bench conferеnce indicates, considered the methods of Colombian narcotics traffickers to be unique. There was no attempt to suggest that the defendant was guilty because he was Colombian.” Commonwealth v. Munera,
The State trooper’s testimony here closely resembled the cоntested statements in Munera. As in that case, the trooper’s statements were not directed at suggesting that Hispanics were more likely to be engaged in the illegal drug trade, or that the defendant himself, by virtue of his ethnicity alone, was likely to be part of a criminal syndicаte. Indeed, the trooper’s testimony directly alluded to the fact that diverse groups were involved in illegal drug sales, not merely (or even especially) Hispanics. In this respect, the trooper’s testimony was even more mild than the otherwise similar modus operandi evidence deemed permis
Buttressing our conclusion is the fact that, unlike the present case, the defendant in Munera objected to the contested ethnic references аt trial, compelling a more stringent standard of review. Moreover, in both Munera and Gallego (where the defendant also lodged a timely objection), there were repeated allusions to ethnicity. Here, by contrast, there was only a single, isolated reference, further reducing the risk of prejudice. See Commonwealth v. Cunneen, 389 Mass, at 223-224 (“fleeting comments, not likely to influence, or even to seize the attention. of the jury”). Compare Commonwealth v. Lara,
One final point: we note that references to ethnic or racial identity in cases such as this are always problematic. It is at least possible that even a totally benign reference to group membership may awaken or even exacerbate latent biases among some jurors. For this reason, prosecutors would be well advised to steer their witnesses clear of making such characterizations in future cases to avoid the possibility of needless retrials. Cf. Commonwealth v. Washington,
Judgment affirmed.
Notes
To the extent that the defendant has challenged neither the legality of the search nor the sufficiency of the Commonwealth’s evidence, we need not dwell long on the circumstances attendant to the defendant’s arrest.
The defendant briefly argues that the question of the value of the cocaine seizеd here was not a proper subject for expert opinion. Passing the question whether the defendant’s argument in this regard satisfies the requirements of Mass.R.A. P. 16(a)(4), as amended,
We also note that insofar as the defendant was acquitted of trafficking, and convicted only of the far less serious offense of possession with the intent to distribute, it seems doubtful that the defendant was prejudiced by the testimony regarding the value of the drugs seized. In any event, as noted, the issue was a proper subject matter for expert opinion.