Commonwealth v. Arias, 13-P-728

COMMONWEALTH v. JOSE L. ARIAS.

13-P-728

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

May 19, 2015

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

After a jury trial, the defendant was convicted on two counts of drug trafficking. On appeal, he argues that prejudicial error was created by the admission of hearsay, as well as testimony about prior bad acts and a knife; he argues further that there were errors in the prosecutor's closing argument that were not cured by the judge's jury instructions. We affirm.

Background. The jury heard the following evidence. On November 10, 2009, Sergeant Jeffrey Stone, of the Massachusetts State Police, participated in a drug investigation on Martha's Vineyard. He had received information that "two Dominican black males, one younger, shorter and lighter than the second, [would be] coming to the island." He was waiting for the 12:45 ferry and, when it arrived, Stone recognized the defendant and anotherman, later identified as Wilken Baez, from an earlier surveillance approximately one month earlier. "[The defendant] was in front of [Baez], about 20 feet ahead of [him], walking down the gangplank." Neither man had any luggage.

The defendant was talking on the telephone, still walking approximately twenty feet in front of Baez, and passing a line of taxicabs. At the same time, a maroon jeep driven by Andrew Morris (who was known to the police) pulled up to the stop sign to Stone's immediate left; Morris remained at the stop sign for two to three minutes, all the while talking on his telephone. During that time, Morris was six to seven feet away from Stone (with whom Morris was familiar) and Morris was looking back and forth between the defendant and Stone. Stone then saw the defendant "stop[] dead in his tracks while still on his phone and then he -- [Baez caught] up to him and they just all of a sudden . . . turn[ed] and [went] to the closest cab."

Stone later stopped the two, as they were travelling in the taxicab. He recovered a small pocket knife from the defendant, and another officer recovered two packages of cocaine from underneath a seat of the taxicab.¹

Discussion. 1. Hearsay and references to ethnicity. The defendant first argues that Stone's testimony that he hadreceived information that two Dominican males would be coming to the island, along with a physical description of the two, was "inadmissible hearsay and not proper state of police knowledge evidence." We disagree. To avoid putting an officer in a "false position of seeming just to have happened upon the scene; [the officer] should be allowed some explanation of his presence and conduct." Commonwealth v. Doyle, 83 Mass. App. Ct. 384, 389-390 (2013), quoting from Commonwealth v. Rosario, 430 Mass. 505, 508 (1999). "The prosecution may introduce 'carefully circumscribed extrajudicial statements in criminal trials to explain the state of police knowledge.'" Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 679 (2011), quoting from Commonwealth v. Rosario, supra.² Here, Stone's testimony was offered to explain why he was waiting at the ferry for two men who met a particular description and to negate any inference that he selected the defendant and Baez solely on the basis of their ethnicity. See Commonwealth v. Faust, 81 Mass. App. Ct. 498, 503 (2012). Particularly where Stone's explanation did not attribute any criminal behavior to either man, we see no error.

Compare Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 438-439 (2006).

The defendant also argues that the prosecutor "improperly injected ethnicity into the trial, thereby prejudicing the defendant's case [and] warranting a new trial." He bases that argument on testimony that the two men spoke Spanish, that Baez had an outstanding deportation order, and that the defendant was a naturalized citizen. "Prosecutors 'may not appeal to [ethnic or] racial prejudice to obtain a guilty verdict.' Commonwealth v. Washington, 28 Mass. App. Ct. 271, 273, (1990). . . . That is not a novel principle, but one of old standing. See Commonwealth v. Kazules, 246 Mass. 564, 566 (1923); Commonwealth v. Graziano, 368 Mass. 325, 331-333 (1975). . . . [However] [t]here are occasions when references to the ethnicity of persons in a case are relevant. See, e.g., Commonwealth v. Washington, [supra] at 274." Commonwealth v. Lara, 39 Mass. App. Ct. 546, 551 (1995). See Commonwealth v. Berrio, 43 Mass. App. Ct. 836, 840-841 (1997).

In this case, the use of the term "Dominican" was part of the physical description of the defendant and his companion -- a description that had been provided to Stone in order to help him identify two individuals from the approximately sixty other passengers leaving the ferry at the same time. The cabdriver's testimony that the defendant and Baez spoke Spanish was arecounting of what had occurred when the two were in his taxicab. It was also an explanation for the fact that the driver had not understood their conversation.³ None of these references, individually or taken together, implies any association between the defendant and illegal drugs or other criminality -- apart from Baez's immigration problems.

2. Prior bad acts. The defendant argues for the first time on appeal that the judge erred in allowing prior bad act evidence, as part of Stone's testimony. On October 4, 2009, Stone had observed the defendant leave the Oak Bluffs ferry, talking on his cell phone, and walking toward the parking lot exit, with Baez following about twenty to thirty feet behind. The two men walked several blocks away from the ferry and got into a pickup truck, which was parked a short distance from the ferry, driven by Richard Morris. They didn't speak or interact in any way before they got into the truck. Approximately ninety minutes later, Stone saw the defendant and Baez running to catch the boat that was leaving Vineyard Haven for Woods Hole. Thereafter, Stone regularly checked the ferry arrivals, looking for the same two men -- until he saw them on November 10, 2009, the day at issue here. The defendant describes this testimony as "[t]estimony that the defendant and Baez had been on theisland on October 4, 2009 to sell drugs to Morris, who was under investigation by the police, [and] was improper prior bad acts evidence." Following this sentence, the defendant provides several record citations, none of which explicitly supports his claim that the testimony was that the two "had been on the island . . . to sell drugs to Morris."⁴ Further, three of the citations refer to parts of the trial when defense counsel was cross-examining prosecution witnesses.

We see no error. A prosecutor may introduce evidence of a defendant's prior acts "to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive." Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 870 (2010). Mass. G. Evid. § 404(b) (2015). "The judge must also find that the probative value of the evidence in question outweighs the risk of undue prejudice to the defendant." Commonwealth v. Sullivan, supra. We uphold the judge's decision to admit this evidence because there was no error, and we are satisfied the judge did not abuse his discretion.⁵ See Commonwealth v. Beneche, 458 Mass. 61, 80 (2010); Commonwealth v. Copney, 468 Mass. 405, 414 (2014).

3. Closing argument. The defendant also argues that the prosecutor's closing argument contained several improper statements, together warranting reversal. He points first to the prosecutor's reference to the defendant's October 4, 2009, visit to the island. In that case, because the evidence was properly admitted, there was no error. "A prosecutor may argue 'forcefully for a conviction based on the evidence and on the inferences that may reasonably be drawn from the evidence.'" Commonwealth v. Kater, 432 Mass. 404, 422 (2000), quoting from Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).

The prosecutor also argued to the jury that the prosecution team didn't "claim to have known every visit made in the interim, and nor has that been presented to you. But we do know they came back in November." Any speculation about possible additional visits was improper. However, the prosecutor followed up with a reminder to the jury that no evidence had been presented regarding other visits. The defendant objected to this testimony, but did not object to the judge'sinstructions, which followed.⁶ See ...