Commonwealth v. Ramirez

91 Mass.App.Ct. 1130

86 N.E.3d 513 (Table)

COMMONWEALTH

v.Rafael E. RAMIREZ.

15-P-1353

Appeals Court of Massachusetts.

Entered: June 26, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals his convictions of unlawful possession of a firearm and unlawful possession of a loaded firearm.² He argues errors in the admission of police testimony about a 911 call, in the prosecutor's closing argument, and in the admission of a ballistics certificate through a witness who had not signed it. He also appeals an order denying his postconviction motion for an inquiry into alleged juror bias and extraneous influences on the jury. Finally, he seeks a new trial on the ground that the inability to reconstruct missing portions of the trial transcript has deprived him of his right to an effective appeal.³ We affirm.

Background. We recite the facts as the jury could have found them, reserving certain details for later discussion. On July 8, 2013, at about 2:00 A.M. , the Lawrence police department received a 911 call reporting shots fired, and an officer was dispatched to the reported location, a high-crime area. A few minutes later, the police received a similar 911 call from a nearby location, this time giving a description of the male suspect. Officer Michael Colantuoni was among those dispatched. While driving his marked cruiser along nearby streets, Colantuoni saw a male walking on the sidewalk, "matching the description that [he] was given" and later identified as the defendant. Colantuoni saw no one else on the street or porches at the time, in what was a closely packed, normally-lit residential area.

After radioing dispatch to report that he had "a possible suspect in sight," Colantuoni got out of his cruiser and called out to the defendant, "Hey, hold up a sec." The defendant turned, made eye contact, put his hand to his waistband, and then quickly turned and began walking away. Given the nature of the 911 call, Colantuoni was concerned by the defendant's hand movement because, he testified, the waistband is "the general area where people carry firearms." The defendant looked back over his shoulder at Colantuoni, who called out to him a second time, at which point the defendant began to run away. Colantuoni gave chase on foot and radioed for backup.

The defendant ran into a back yard and climbed over a tall fence into another back yard. Colantuoni lost sight of him for a few seconds. As Colantuoni neared the fence, the defendant fell, hit the ground on the other side, and began to get up. Colantuoni climbed over the fence and likewise fell. Colantuoni caught up to the defendant, ordered him to the ground, and handcuffed him. A patfrisk found no weapons. The chase had lasted approximately one minute.

By this time, backup officers had arrived, so two officers stayed with the defendant while Colantuoni and others, including Sergeant John Nicoletti, retraced the route of the chase. When they reached the area where the defendant had fallen after climbing over the fence, Colantuoni, using his flashlight, discovered a loaded .40 caliber handgun on the ground. The defendant was arrested. No additional calls for shots fired were received that night. Several officers involved testified that in their years of experience with the Lawrence police department, they had never before found a loaded gun lying in a back yard without having been specifically called to the scene for that reason.

Discussion. 1. Testimony regarding 911 call. Before trial the Commonwealth moved in limine to permit police witnesses to testify about the 911 shots-fired calls, for the permissible nonhearsay purpose of showing their state of mind, i.e., why they responded to the area and focused on the defendant. See Commonwealth v. Rosario, 430 Mass. 505, 508-510 (1999). Over the defendant's objections on confrontation clause and hearsay grounds, the judge allowed the motion, specifically ruling that the prosecution could elicit that the defendant matched the description given by the second 911 caller. The judge stated his intention to give a limiting instruction that the jury could consider the evidence as proof only of the officers' state of mind and not that the defendant possessed a firearm or fired shots.

Colantuoni then testified at trial that he had spotted and identified as a suspect a male "matching the description that [he] was given" from the 911 call. The defendant did not renew his objection. The judge's final instructions to the jury cautioned that the testimony "about a dispatch to police officers to respond to a location for shots fired" was "not evidence that shots were actually fired." The jury were instructed that they could

"consider that evidence for the limited purpose of what the police officers' state of mind was when they arrived on the scene and what caused them or impelled them to act the way they are [sic ]. So it goes to the state of mind, not to prove the actual fact that shots were fired."

On appeal, the defendant argues that the testimony that he matched the caller's description went beyond what is permitted by Rosario. That decision requires a party to minimize disclosure of the substance of the out-of-court declarant's statement to the police, because of its "high probability of misuse." 430 Mass. at 509. More limited testimony, e.g., that "an officer acted ‘upon information received,’ or ‘as a consequence of a conversation,’ or words to that effect—without further detail—[will] satisfy the purpose of explaining police conduct." Id. at 510, quoting from Commonwealth v. Perez, 27 Mass. App. Ct. 550, 554-555 (1989). See Commonwealth v. Jones, 477 Mass. 307, 328 (2017). Testimony that exceeds these limits may constitute inadmissible hearsay and violate the "confrontation guarantees of the State and Federal Constitutions." Rosario, 430 Mass. at 511.

a. Confrontation clause claim. Assuming that the defendant's objection to the motion in limine was sufficient to preserve his confrontation clause claim, see Commonwealth v. Grady, 474 Mass. 715, 718-719 (2016), we nevertheless conclude that the claim fails. Although the record does not contain a recording or transcript of the 911 call, the caller's apparently contemporaneous statements reporting shots fired and describing the suspect were not testimonial but instead were made for the nontestimonial "primary purpose of ... enabl[ing] the police to respond to an ongoing emergency," and thus their indirect admission through Colantuoni did not violate the defendant's rights under the Sixth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of rights to confront the witnesses against him. Commonwealth v. Middlemiss, 465 Mass. 627, 632-633 (2013). See Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 323-324 (2016). An ongoing emergency includes situations, like this one, "where the dispatched police officers responding to the scene may be at risk from an armed assailant ... or where an armed assailant poses a substantial risk to the public at large." Commonwealth v. Beatrice, 460 Mass 255, 260 (2011).

b. Hearsay claim. The defendant did not preserve his hearsay claim, because he failed to renew his objection to the motion in limine by objecting at trial.⁴ We therefore review for whether any error in admitting the evidence created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).

We conclude that although the description-match testimony exceeded the limits recognized in Rosario, 430 Mass. at 507-511, there was no substantial risk of a miscarriage of justice.⁵ Even without this testimony, the Commonwealth's case, although circumstantial, was more than merely sufficient. The defendant's reaching toward his waistband,⁶ his sudden flight indicating consciousness of guilt, and especially the discovery of a loaded handgun in the very spot where the defendant fell during the pursuit, together with evidence that the defendant was the only civilian seen on the streets at the time and that after his arrest there were no further reports of shots fired that evening, all combine to provide ample evidence of the defendant's guilt. The erroneously admitted testimony was very brief and was not repeated in the prosecutor's closing argument.⁷ It was the subject of a forceful limiting instruction, which, without unnecessarily repeating the description-match testimony itself, told the jury that they could consider the testimony about the 911 call only to explain why the police went to the scene and why they acted as they did when they arrived, "not [as] evidence that shots were actually fired." "[W]e are persuaded that [the erroneous admission of that testimony] did not ‘materially influence[ ]’ the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

2. Prosecutor's closing argument. As there is no indication that the defendant objected at trial to any aspect of the prosecutor's closing argument,⁸ we review the defendant's claims to determine whether any errors created a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). "[T]he cumulative effect of all the errors must be considered in the context of the arguments and the case as a whole." Commonwealth v. Niemic, 472 Mass. 665, 673 (2015) (quotation omitted).

The defendant first challenges the prosecutor's use of the word "we" in the following passage:

"Then there were three witnesses today. Just to be perfectly clear, we called them, we subpoenaed them, we brought them in here today, we asked the questions. We did that so you know that we do complete investigations."

The prosecutor, responding to criticisms of the investigation in the defense closing, was referring to testimony from a State trooper and two scientists from the State police crime laboratory, the substance of which was that despite their efforts, no useful fingerprint or...