50 Mass. App. Ct. 722 | Mass. App. Ct. | 2001
The defendant was convicted, in a District Court jury trial, of distribution of heroin. Among his several claims of error on appeal, he argues that the judge erred in allowing a police officer to testify to a codefendant’s prior arrest for a drug offense and in allowing a police officer to testify to the defendant’s daily presence in an area where the police officers conduct sweeps for drug dealers and make the majority of their arrests for drug offenses. The defendant also claims that the judge erred in admitting in evidence the police report pertaining to the defendant’s arrest and the bag of heroin allegedly sold by the defendant and in excluding from evidence photographs of the crime scene. Finally, the defendant asserts that the prosecutor committed reversible error in his closing argument. We affirm the judgment.
We summarize the evidence presented to the jury. Officers Roy Frederick and George Cardoza, members of the Boston police department’s drug control unit, were conducting a surveillance of the Dudley triangle area in the Roxbury section of Boston on October 31, 1994, at about 6:00 p.m. Frederick was seated in the passenger’s seat, and Cardoza was driving. As their unmarked car came down Ziegler Street, Frederick saw two people whom he knew at the comer of Ziegler Street and Harrison Avenue. One was David Montero,
The officers then drove away, parked their unmarked car on a neighboring street, and waited on foot on Warren Street for the
On cross-examination of Frederick, the defendant posed questions about whether Frederick disliked the defendant because Frederick felt the defendant had been a bad influence on Frederick’s brother. Frederick denied that he disliked the defendant and testified that he did not know whether the defendant had been a bad influence on his brother.
The defendant’s sister, who testified on his behalf, stated that the defendant stayed with her for three days beginning on October 30, 1994, because he was seriously ill and that, during that period, he just lay around her house and drank soup. She also testified that October 31, 1994, was a Tuesday and that she would have arrived home from work shortly after 5:00 p.m., at which time the defendant was at home with her and remained there. When shown a calendar which indicated that October 31, 1994, was a Monday, however, she admitted that she would not have arrived home until shortly after 7:00 p.m. but that her son had told her that the defendant had been home all day on that date.
The defendant failed to appear for the second day of the trial, and the judge instructed the jury that, if the Commonwealth proved that the defendant had knowingly absented himself from the trial, the jury were permitted, but not required, to draw an inference against the defendant.
We now address each of the defendant’s claims of error.
1. Evidence of codefendant’s prior drug arrest. In response to an inquiry whether Officer Frederick recognized the person with the defendant, Frederick responded, “It’s a gentleman who we had arrested prior.” There was no objection to the answer or motion to strike the answer. Then the prosecutor queried Frederick anew whether he had arrested Montero before. Frederick responded: “[approximately two months before.” At that point defense counsel objected, and an inaudible sidebar followed. Subsequent to the sidebar, the judge allowed the officer to testify
The defendant argues that this evidence was inadmissible because it was hearsay or evidence of a prior bad act. The Commonwealth concedes that it should not have been admitted but argues instead that it was not prejudicial. There is no question that the police officer should not have been permitted to testify that the codefendant had a prior arrest for possession of heroin. See Commonwealth v. Kennedy, 426 Mass. 703, 709 n.5 (1998) (while evidence of a prior arrest of a codefendant may be admissible at a motion to suppress hearing in determining probable cause to arrest the defendant, such evidence would not be admissible at trial to establish the defendant’s guilt). See also Brinegar v. United States, 338 U.S. 160, 173-174 (1949). Such evidence tainted the defendant with guilt by association and was not relevant to prove the defendant distributed heroin. Because the defendant, however, did not object to the officer’s initial testimony that Montero had a prior arrest or to his subsequent testimony identifying the arrest as one for possession of heroin, our standard of review is one of substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). We must then decide whether the admission of this evidence materially influenced the jury’s verdict. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We conclude that this evidence would have had but very slight effect upon the jury’s verdict because of the strength of the Commonwealth’s case, Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986), and would not have damaged the alibi defense advanced by the defendant, Commonwealth v. Anderson, 396 Mass. 306, 316 (1985). Here, two experienced police officers testified that they saw die defendant, whom they knew and recognized, hand an object to Montero in exchange for money. Minutes later, Frederick seized a glossine bag from Montero’s right hand. Frederick recognized the bag as the same one he had seen the defendant hand to Montero, who took it in his right hand. The bag contained heroin. Frederick testified that
Also, as the Commonwealth argues, part of the defendant’s strategy was to claim that he had been framed by the police officers because Frederick held the defendant responsible for the troubles of Frederick’s brother. Although the defendant produced no substantive evidence to support this theory, the admission of this evidence, which defense counsel elicited again and again in cross-examination, enabled the defendant to argue to the jury that Montero was a likely target for the frame-up because the officers knew it was probable that they could find drugs on him.
In sum, even if we were to apply the less onerous prejudicial error standard of review, which the Commonwealth and the defendant relied upon in their arguments, we can say with fair assurance that the error had but very slight effect on the jury’s verdict and, in any event, did not create a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. at 13-14 & n.7.
We also decide it was error for the judge to allow a police officer to testify that Montero was found guilty of possession of heroin based on his arrest on October 31, 1994. Commonwealth v. Tilley, 327 Mass. 540, 548 (1951). Because the defendant objected to this testimony, the standard of review is whether the error was prejudicial. Commonwealth v. Alphas, 430 Mass. at 13 n.7. Because the jury had already been apprised of Montero’s arrest for this offense and because of the strength of the Commonwealth’s case and the nontoxic effect of this evidence on the defendant’s claims of alibi and frame-up, we can say with fair assurance that the erroneous admission of this evidence “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). As such, the admission of this evidence did not create prejudicial error requiring reversal.
2. Evidence of the defendant’s daily presence in an area associated with drug activity. The defendant argues that it was error for the judge to allow Frederick to testify that he saw the defendant “[i]n the same area [where the alleged drug sale took place] just about every single day prior to that night” and
While it is true that a person cannot be convicted by proof of guilt by association, Commonwealth v. Szemetum, 3 Mass. App. Ct. 651, 653-654 (1975); Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 259 (1999), evidence that a particular area is known for drug dealing is one of many factors that can be considered in determining whether a drug transaction occurred. See Commonwealth v. Rivera, 425 Mass. 633, 649 (1997) (“area known for drug dealing”); Commonwealth v. Pena, 40 Mass. App. Ct. 905, 905 (1996) (“high incidence of drug dealing”).
Also, because Frederick’s testimony about the “overflow from the Mission Hill sweeps” was elicited initially by the defendant during cross-examination and the comment by Frederick to which the defendant objected was merely a reiteration of that testimony, the defendant’s claim of error is unavailing. See Commonwealth v. Kaste, 4 Mass. App. Ct. 589, 592 (1976) (“the exception would avail the defendant nothing, as testimony substantially to the same effect had been elicited by the defendant from the witness in earlier cross-examination”). We also view Frederick’s testimony that the majority of their arrests in that area were for drug offenses as simply cumulative of his description of the area as one infiltrated with drag dealers. The admission of this evidence was not error.
Frederick’s testimony that he saw the defendant in that area every night is more problematic. See Commonwealth v. Szemetum, 3 Mass. App. Ct. at 653 (it was error to admit the testimony that the defendant had been seen in the area on previous occasions where arrests had been made for the sale of heroin). Nevertheless, unlike the Szemetum case, there was no objection by the defendant to this testimony, and the evidence was relevant to buttress the police identification of the defendant because of the alibi defense and to explain the police officers’ apparent
3. Other claims of error. The defendant claims that the admission of the police report in evidence was error because it contained prejudicial hearsay evidence. However, the defendant has failed to include in the record on appeal a copy of the police report or elucidate in his brief those prejudicial statements about which he complains. Such an omission precludes our review. See Commonwealth v. Burns, 43 Mass. App. Ct. 263, 268 n.5 (1997), quoting from Commonwealth v. Bernier, 366 Mass. 717, 720 (1975) (“[i]n order to be entitled to have this court consider and decide an issue, the defendant has the . . . burden of including in a record on appeal all of the evidence, facts, or information pertinent to the issue”).
The defendant’s argument that the package of heroin allegedly seized from Montero should not have been admitted in evidence because the Commonwealth failed to lay a sufficient foundation is without merit. Frederick’s testimony about the procedures followed by him after the package was seized and his subsequent identification of the package as the one seized from Montero provided sufficient foundation for its admissibility. “Any argument that the defendant may have had with [Frederick’s] authentication testimony concerned the ‘weight and credibility of the evidence, a matter wholly within the province of the jury.’ ” Commonwealth v. Ortiz, 424 Mass. 853, 860 (1997), quoting from Commonwealth v. Martino, 412 Mass. 267, 272 (1992).
Likewise, we decide that the judge did not abuse his discretion in denying the defendant’s request to introduce photographs
Finally, the defendant claims that the prosecutor committed reversible error in his closing argument. The defendant argues that, at the end of his closing, the prosecutor exhorted the jury that it was their job to return a verdict of guilty. However, the statement on which the defendant relies contains an inaudible portion.
In any event, even if the prosecutor made this comment as alleged by the defendant, the isolated statement would not require reversal in light of the strength of the Commonwealth’s case. See Commonwealth v. Davis, 38 Mass. App. Ct. 932, 934 (1995) (comment arguably suggesting that it was jury’s duty to convict, standing alone, not prejudicial where case against the defendant was strong).
Judgment affirmed.
References to the codefendant in this opinion are to Montero, who was tried separately from this defendant.
The statement as presented to us in the record is: “I want to remind you that your job is [inaudible] return a verdict of guilty.”