MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of trafficking in cocaine (in an amount between thirty-six and one hundred grams), and of resisting arrest. Arguing that his trial counsel was constitutionally ineffective in one respect, the defendant filed a motion for a new trial, which the trial judge denied following a nonevidentiary hearing. In this consolidated appeal, we affirm.
Background. Boston police Officer David Lanteigne observed a van driven by the defendant back through an intersection and then park. After approaching the van and learning that the defendant had an outstanding arrest warrant and was driving while his license was suspended, Lanteigne arrested him with the assistance of two other Boston police officers, Dominic Dimarzo and Eduardo Espino. A small bag containing 2.43 grams of cocaine was found on the defendants person, along with $172 in cash. A search of the van revealed a black leather bag described as a “shaving kit” in close proximity to the drivers seat.
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There was other evidence directly linking the defendant to the shaving kit: an eyewitness had seen him carrying the shaving kit while walking in the area the previous day, and video surveillance footage that was shown to the jury corroborated this testimony. Inside the shaving kit were over fifty-five grams of cocaine, packaged inside of two bags that together were inside of a cellophane bag that was protruding out of the shaving kit. Also inside the shaving kit were various drug paraphernalia, some pills, and marijuana. Two digital scales and three cell phones were found in the van.
Through counsel, the defendant acknowledged being in possession of the small bag of cocaine found on his person but claimed that it was only for his personal use. He suggested that the larger amounts of cocaine found in the shaving kit may have belonged to one of the other two occupants in the van: a woman named Laurie Engebretson who had been seated in the front passenger seat and a man named Paul Nestor who had been in the back of the van. Specifically, the defendant argued -- as detailed below -- that Engebretson might have planted the cocaine inside the shaving kit when the attention of the three responding police officers was focused on placing the defendant under arrest. The defendant also argued that the police had done an inadequate investigation to try to establish which of the vans occupants owned the cocaine found in the shaving kit (e.g., by failing to look for fingerprints on the plastic bags containing the cocaine). Apparently unpersuaded by such arguments, the jury found the defendant guilty.
Discussion. 1. Direct appeal. The defendant makes two arguments in his direct appeal, which we address in turn.
a. Closing argument. After Officers Dimarzo and Espino responded to Lanteignes call for back-up, Dimarzo stationed himself outside the front passenger side of the van while the other officers were on the drivers side. Nestor left the van first and the police had him sit on the sidewalk near the front passengers side of the van. The defendant then was ordered out of the van where Lanteigne started to arrest him. The defendant broke free but soon was tackled by Lanteigne near the rear of the van on the drivers side. After a brief struggle, Lanteigne and Espino were able to subdue him. Dimarzo initially stayed in his position at the front passenger side of the van in order to secure Nestor and Engebretson. According to Dimarzo, Engebretson, like Nestor, was at this time outside of the van. After placing Nestor in handcuffs, Dimarzo went to see if the other officers needed assistance with the defendant. When he arrived where the other officers had struggled with the defendant, he helped restrain the defendants legs. Once they had placed the defendant in handcuffs, Dimarzo returned to his post at the right front of the van to look after Engebretson and Nestor.
During his closing argument, the defendant sought to suggest that Engebretson might have slipped the cocaine into the shaving kit when Dimarzo went to assist his fellow officers. Although he acknowledged Dimarzos testimony that Engebretson already was outside the van at that point, counsel suggested that “testimony [from the other officers] sounded like she was still in the car throughout the time period when [the defendant] was arrested.”
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Counsel continued by arguing that, in any event, Engebretson was not handcuffed at this time, and Dimarzo left her unattended for “some time” while he went to assist his colleagues.
In his own closing argument, the prosecutor urged the jury not to be swayed by the defendants theory, which he repeatedly characterized as a “magical thing.” He referred to the duration of time that Engebretson was left unattended as “the ten seconds that Officer Dimarzo wasnt there,” and “just a few seconds.” The prosecutor argued that it would have been “impossible” during that time for Engebretson to reenter the van, place the bag of cocaine into the shaving kit, rezip the kit, and return. In making that argument, the prosecutor stated, or at least strongly suggested, that both Engebretson and Nestor had been placed in handcuffs.
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As the defendant points out, while Dimarzo testified that he had placed Nestor in handcuffs, there was no evidence that Engebretson ever had been placed in handcuffs by Dimarzo or anyone else. The prosecutor thus misstated the trial evidence in this respect, as the Commonwealth acknowledges. The defendant also points out that the prosecutors comment that Engebretson would have had to “rezip” the bag after placing the cocaine inside of it is seemingly at odds with police testimony that the kit was open at the time that it was found.
“Having concluded that portions of the prosecutors closing argument were improper, we must determine whether the impermissible statements, in the context of the entire argument, require a new trial.” Commonwealth v. Rutherford, 476 Mass. 639, 647 (2017). “In reaching such a determination, we consider ‘(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jurys conclusions.’ ” Id., quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000).
On the first factor, the defendant did not object to the prosecutors suggestion that the shaving kit was zipped when it was found but did timely object to the statement that Engebretson was handcuffed. Regarding the second factor, the defendant argues that the error went to the heart of the case, because it undermined his primary defense that Engebretson had planted the cocaine in his shaving kit. That argument is not without some force, but it must be viewed in context. The Commonwealth presented strong evidence that the cocaine was the defendants, and it was not the Commonwealths burden to disprove the defendants alternative, fairly implausible, theory that Engebretson might have returned to the van to plant the cocaine in the defendants shaving kit during the brief time that Dimarzo had left his post.
On the third factor, the judge repeatedly instructed the jury that they were the sole adjudicators of the facts based on the trial evidence and that closing arguments themselves were not evidence.
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This included the following instruction given immediately after the prosecutor had concluded his closing argument and the judge noted defense counsels objection to the misstatement that Engebretson was handcuffed: “and again, I just remind you, these closing arguments are not evidence, so if these attorneys’ statements or views about the facts differ with your memory of what the evidence was, its your memory that controls.” The defendant did not object to the form of the judges instructions regarding closing argument or propose any alternative curative instruction. We assume that the jury followed the instructions that were given. See Commonwealth v. Berry, 466 Mass. 763, 770 (2014).
We turn then to the fourth factor, the ultimate question of “whether the error, in the circumstances, possibly made a difference in the jurys conclusions.” Rutherford, 476 Mass at 647, quoting Kater, 432 Mass. at 423. While the prosecutors statements that Engebretson was handcuffed and the shaving kit was zipped added some support to his assertions about the unlikelihood that she placed the cocaine in the shaving kit, such support was marginal. Put differently: the prosecutors argument that it was inherently implausible that Engebretson was able, unnoticed, to reenter the van, plant the cocaine in the shaving kit, and return to the sidewalk during the brief period that Dimarzo had gone to assist his colleagues depended little on whether Engebretson was handcuffed at the time or on whether the shaving kit was zipped or unzipped when it was found. Although the judge did not provide the jury a specific curative instruction that there was no evidence that Engebretson was handcuffed or the bag was rezipped, none was requested. We conclude that even if “a specific, curative instruction would have been the better course, ․ [t]he judges general instructions sufficiently mitigated the error.” Commonwealth v. Lester, 486 Mass. 239, 249 (2020). In sum, we are confident that the prosecutors misstatements in his closing argument “did not influence the jury, or had but very slight effect.” Commonwealth v. Alvarez, 480 Mass. 299, 305 (2018), quoting Commonwealth v. Hrabak, 440 Mass. 560, 656 (2004).
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b. Arrest warrant. The defendant also claims the judge erred by allowing the arresting officer to testify that he arrested the defendant because he had an outstanding arrest warrant. Although the defendant objected, the judge overruled the objection, apparently accepting the Commonwealths argument that mentioning the warrant was appropriate to place the police actions in context and to demonstrate that the police were not overreacting to the relatively minor traffic violation for which the defendant had been stopped.
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Notably, as soon as the officer mentioned the outstanding arrest warrant, the judge forcefully instructed the jury not to speculate about what the warrant might have been for, and about the limited use that could be made of the mention of the arrest warrant.
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The judge gave the jury another, similar instruction after the close of evidence.
Evidence of a prior bad act is not admissible to show bad character or propensity, but it is admissible if relevant to a different purpose where the judge determines, in her “broad discretion,” that its probative value outweighs the potential for undue prejudice. Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting Commonwealth v. Keown, 478 Mass. 232, 242 (2017). Especially given the judges forceful instructions about the limited use that could be made of the mention of the arrest warrant, we conclude that the judge did not abuse her discretion in allowing such evidence to be admitted. See Commonwealth v. Donahue, 430 Mass. 710, 718 (2000) (“We presume that a jury understand and follow limiting instructions, ․ and that the application of such instructions ordinarily renders any potential prejudicial evidence harmless”).
2. Motion for new trial. When the defendant was booked, he was asked about his employment status, and he responded that he was unemployed. Without objection, the Commonwealth solicited trial testimony regarding this admission. Then, in closing argument, the prosecutor argued that the defendants possessing thousands of dollars of illegal drugs while being unemployed was evidence that he possessed the drugs with an intent to distribute them, rather than possessing them merely for his personal use. In his motion for new trial, the defendant argued that his trial counsel was constitutionally ineffective by failing to move to suppress his admission that he was unemployed. To prove such ineffectiveness, the defendant was required to show both that his trial counsels behavior fell “measurably below that which might be expected from an ordinary fallible lawyer,” and that this performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “We afford particular deference to a decision on a motion for new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge.” Commonwealth v. Martin, 467 Mass. 291, 316 (2014).
We agree with the defendant insofar as he argues that the seemingly innocuous question about his employment status had the potential to produce an incriminating admission, as this case illustrates. See Commonwealth v. Woods, 419 Mass. 366, 372-374 (1995). However, the defendants admission that he was unemployed was admissible if he first had been apprised of his Miranda rights. See id. at 372. See also Miranda v. Arizona, 384 U.S. 436 (1966). The booking form memorializes that the defendant indeed was “informed of [his] rights” by the booking officer. Defense counsel cannot be faulted for not filing what would have been a fruitless motion.
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See Commonwealth v. Comita, 441 Mass. 86, 91 (2004) (“in order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful”).
To be sure, notwithstanding what the booking form said, the defendant submitted an affidavit with his motion for new trial averring that “at no time before or during booking was I advised of my Miranda rights.” However, especially where those averments were contradicted by the contemporaneous documentary record, and the judge had the opportunity to assess the credibility of the booking officer at trial, the judge was free to discredit the defendants affidavit without holding an evidentiary hearing.
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See, e.g., Commonwealth v. Gould, 413 Mass. 707, 716 n.9 (1992). See also Commonwealth v. Lys, 481 Mass. 1, 5 (2018) (“motion judge need not accept statements in the defendants affidavit as true, even if the statements are undisputed”).
The defendant also is unable to make an adequate showing of prejudice under the second prong of Saferian. See Saferian, 366 Mass. at 96. The defendant did not argue at trial that if the cocaine in the shaving kit was his, he possessed it only for personal use. This is hardly surprising considering the sheer amount of that cocaine and the other evidence of distribution (e.g., the two electronic scales). Rather, the defense at trial was that the cocaine in the shaving kit belonged to one of the other occupants of the van. The defendants admission that he was unemployed did nothing to undermine that defense. The judge did not abuse her discretion in denying the defendants motion for a new trial.
Judgments affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. One witness testified that the shaving kit was on the floor in the area between the drivers seat and the front passenger seat, but closer to the drivers seat (and toward the back of the seat). Another witness described it as located in an area just to the rear of the drivers seat.
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. Although Lanteigne and Espino did not mention Engebretson leaving the van in their recounting of the incident, neither did they clearly state that she remained inside of it. Espino did make the following ambiguous statement in response to a question regarding where Dimarzo was when the defendant was placed in handcuffs: “During the struggle, [Dimarzo] was with [Nestor] and the female in the passenger seat of the van.”
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. Specifically, the prosecutor stated that “once Defendant was resisting [Dimarzo] got the people out of the car in handcuffs ․ [and Dimarzo] just runs up at the end, after hes taken the people out and cuffed them.”
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. Such instruction was given on four separate occasions: prior to the taking of evidence, immediately before the closing arguments were given, immediately after the closing arguments were given, and later during the main body of instructions.
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. The defendant also takes issue with the prosecutors closing comments that Engebretson would have had to have “rezipped” the bag after placing the cocaine inside. The defendant is correct, so far as it goes, that a responding K-9 officer testified that the bag was open at the time that it was found. However, defense counsel did not object to the prosecutors statement that the shaving kit was zipped. Especially given the judges thorough instructions about the role of closing arguments, the prosecutors additional misstatement did not cause a substantial risk of a miscarriage of justice.
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. The defendant argues that the Commonwealth did not “need” to mention the arrest warrant to dispel the notion that it was overreacting to the traffic violations, because the police also learned that the defendants license had been suspended, and operating a motor vehicle without a valid license is itself an arrestable offense. However, as a matter of fact, the defendant was arrested based on the outstanding warrant, not for operating the van while his license was suspended.
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. The judge stated as follows:“I would tell, to the extent this officer has just testified, that he had this information about the defendant. I would just say thats being admitted for a limited purpose. The defendant is not on trial for having -- driving with a revoked license. And with regard to why this warrant issued, that is also completely irrelevant with respect to whether hes guilty of these crimes. Its being admitted so that you can understand why the police took certain actions. In fact, I would tell you that warrants are issued for many reasons. They can issue, for example, as a result of driving with a suspended license and then failing to appear in court, failing to pay court fees and the like. So youre not to speculate about why the warrant issued. Its being admitted so that you can understand -- solely for the limited purpose of understanding why the officers decided to then take the steps they did.”
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. Defense counsel did seek suppression of the discovery of the drugs in the shaving kit, albeit unsuccessfully.
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. The defendant now suggests that even if he was provided a Miranda warning at booking, that warning may have occurred after he answered the standard booking questions. But the defendants specific factual claim in his affidavit was that he received no Miranda warning at booking at all, and the judge was free to reject that claim.The defendant also takes issue with the fact that the form does not reflect that he waived his Miranda rights before answering the question about his employment status. He is correct that, had his attorney moved to suppress his statements, the Commonwealth would have born the burden of showing that he had waived his rights. Commonwealth v. Edwards, 420 Mass. 666, 669-670 (1995). Nonetheless, given that the defendant did not demonstrate any irregularity in his booking, the judge could reasonably have concluded on a motion for a new trial that defense counsels failure to pursue this issue did not deprive him of a substantial ground of defense.