Opinion
13-P-1879
03-09-2016
COMMONWEALTH v. ASAD REZVI.
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
The defendant, Asad Rezvi, appeals from his convictions of two counts of larceny over $250 and one count of larceny $250 or under. He contends that (1) without the benefit of statements obtained in violation of his Miranda rights, the search warrant application lacked probable cause to search the defendant's home, (2) statements were admitted at trial in violation of his Miranda rights, and evidence of the defendant's postarrest silence was likewise erroneously admitted, (3) counsel was ineffective in failing to object to the instruction on specific intent and in failing to request a jury instruction on "honest but mistaken belief," and (4) the prosecutor's closing argument deprived the defendant of his right to a fair trial. We affirm.
1. Search warrant. The defendant contends that the affidavit in support of the warrant to search his home relied on statements obtained in violation of his Miranda rights, and that the remaining facts in the affidavit were insufficient to demonstrate the required nexus to his home. The affidavit contained the following facts, independent of the statements the defendant sought to suppress. Pursuant to an investigation into prior thefts of electronic equipment, medical instruments, and patient records from Massachusetts General Hospital (MGH), security personnel employed by MGH watched the defendant placing various pieces of equipment into a duffle bag on video surveillance. They then stopped the defendant as he was leaving the hospital with large bags. In one of them, the security personnel saw what appeared to be MGH computer equipment. The defendant matched the description, culled from previous video recordings, of an unknown man whom MGH security personnel suspected of committing eight separate thefts of goods and computer equipment from the hospital. The warrant sought computer equipment, medical equipment, medical clothing, and patient medical records at the defendant's home.
The defendant had seventy-five entries on his probation record, including identity fraud and larceny.
Determining the sufficiency of a search warrant application begins and ends with the "four corners of the affidavit." Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) (citation omitted). "[A]ll reasonable inferences which may be drawn from the information in the affidavit may also be considered as to whether probable cause has been established." Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 826 (2012) (citation omitted). The affidavit established probable cause to search the defendant's home irrespective of any statements he made to MGH security personnel. Given the nature of the items sought and their connection to similar items that had recently been stolen from MGH, there was a substantial basis for concluding that the missing computer equipment could be found in the defendant's home. See Commonwealth v. Donahue, 430 Mass. 710, 711-712 (2000).
The affidavit satisfied the relevant factors, that is, "(1) the type of crime, (2) the nature of the items sought, (3) the extent of the suspect's opportunity to conceal the items at the location to be searched, and (4) reasonable inferences as to where a criminal would likely hide items of the sort sought." Commonwealth v. Harmon, 63 Mass. App. Ct. 456, 461 (2005). We deal here with the theft of bulky goods that typically require maintenance and storage as inventory prior to sale. The affiant stated that continued access to computers was required for the purposes of extracting personal data and reselling the equipment. The computer equipment was "durable [and] of continuing utility to the defendant[]." Commonwealth v. James, 424 Mass. 770, 778 (1997). See Commonwealth v. Burt, 393 Mass. 703, 715-716 (1985); Commonwealth v. Thevenin, supra at 826-827. It is "reasonably likely that such items could be found in a defendant's home after a crime." Commonwealth v. Wilson, 427 Mass. 336, 343 (1998).
The nexus between items sought and the place to be searched need not be based on direct observation. Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983).
The defendant also argues that his address was acquired from a statement obtained in violation of his Miranda rights, and that without this statement the police would not have known his address. Questions asked during the booking process, such as those relating to a defendant's height, weight, address, date of birth, and current age, are routine. See Commonwealth v. Woods, 419 Mass. 366, 372-373 (1995) (a question that elicits a suspect's address is considered a "routine booking question" [citation omitted]); Commonwealth v. White, 422 Mass. 487, 501 (1996). The affidavit stated that, after being advised of his rights, the defendant was booked "in the usual manner." Even if the defendant's first disclosure of his address to the security guards in the hallway were excised from the affidavit, the magistrate could reasonably infer that the officers obtained the defendant's address during the normal course of booking. See generally Commonwealth v. Donahue, supra at 712.
2. Motion to suppress statements. The defendant next contends that the judge erred in denying his pretrial motion to suppress the statements he made to security personnel before Miranda warnings were given. We agree with the motion judge that the pretrial motion and affidavit were insufficient to warrant relief, and that no hearing was required. The judge was not required to consider the motion to suppress in the absence of a showing of factual support. See Commonwealth v. Pope, 15 Mass. App. Ct. 505, 506-507 (1983); Commonwealth v. Costa, 65 Mass. App. Ct. 227, 233 (2005). See generally Commonwealth v. Mubdi, 456 Mass. 385, 388-390 & n.6 (2010).
The defendant filed an affidavit of counsel that was not based on firsthand knowledge. The defendant was invited to file a supplemental affidavit but did not do so. This too was an independent basis for denying the motion. See Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004). See also Commonwealth v. Bongarzone, 390 Mass. 326, 337 (1983).
At trial the defendant reasserted the objection to the admission of his statements to the security officers. Despite the fact that there had been no pretrial findings or rulings on the Miranda issue, counsel treated his motion as having been fully heard and denied conclusively on the merits in advance of trial, and did not inform the trial judge (who was different from the motion judge) that findings and rulings had not been made. Even where a timely motion to suppress has not been brought, the Commonwealth bears the burden at trial, upon seasonable objection, to prove that the statements were properly obtained. See Commonwealth v. Adams, 389 Mass. 265, 269-270 (1983); Commonwealth v. Florek, 48 Mass. App. Ct. 414, 418-419 (2000). However, "[t]he defendant bears the burden of proving custody." Commonwealth v. Larkin, 429 Mass. 426, 432 (1999).
The motion judge held an evidentiary hearing on the defendant's other motions to suppress, at which evidence relevant to the Miranda issue was heard. After the close of the evidence, the motion judge "encourage[d] [defense counsel] to argue the substance of [the defendant's] Miranda motion in the alternative, because it's possible -- we've heard all the evidence on the subject." Ultimately, the judge declined to consider the motion to suppress the statements on the merits.
No request for voir dire was made, as required. See Commonwealth v. Woods, supra at 370-371 & n.7. As a result, we have no findings of fact on the issue of custody. Cf. Commonwealth v. Costa, supra at 232-233. The failure to file a properly supported pretrial motion and to request voir dire before or at trial constitutes a waiver. Ibid.
In light of our disposition, we need not decide whether the analysis in Commonwealth v. Leone, 386 Mass. 329 (1982), should be extended to claimed violations of Miranda rights.
For the same reasons, we do not address the defendant's argument that a subsequent statement, which he gave after Miranda warnings and while en route to the police station, was "tainted by the improperly obtained statements that [the defendant] made [at MGH]." Nor do we address the defendant's argument, made for the first time on appeal, that his "post-arrest" silence was erroneously admitted at trial.
The trial judge took a proffer as to the expected testimony, and deemed it admissible after being told that the defendant made the statements after receiving Miranda warnings, and that the police had not questioned him directly. He made the statements after listening to the officers discuss obtaining a warrant. Despite the fact that the judge's findings were not express, implicit in her ruling was the finding that "[a]lthough the [defendant's subsequent] statement was incriminatory, it was volunteered and not the product of improper probing questioning." Commonwealth v. Diaz, 422 Mass. 269, 271 (1996).
3. Ineffective assistance of counsel. In this direct appeal, the defendant contends that counsel was ineffective for failing to object to the judge's instruction on specific intent, and for failing to request a jury instruction concerning "honest but mistaken belief."
The judge's instructions accurately defined the elements of larceny, including the element of specific intent: that the defendant intended to deprive the owner of the property permanently. See Commonwealth v. Liebenow, 470 Mass. 151, 156 (2014). The essence of the defense was that the defendant had no intent to deprive the hospital of its equipment because he believed he was selling it at the behest of hospital representatives. Because there was no error in the judge's instructions on larceny and specific intent, counsel was not ineffective for failing to object.
In his closing argument, defense counsel urged that "what is really in question here is when [the defendant] took the items from [MGH], was he doing so as a thief intending to steal, or was he doing so as a dupe, as a mark, identified by some con men who brought him to do their work unbeknownst to him."
Turning to the failure to request an "honest but mistaken belief" instruction, we reiterate that an ineffective assistance claim "made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). We must consider (1) whether the evidence presented at trial was sufficient to warrant the instruction; (2) whether counsel's failure to request the instruction was so manifestly unreasonable as to defy strategic explanation; and, if so, (3) whether the absence of the instruction created a substantial risk of a miscarriage of justice. See id. at 209-210 & n.4; Commonwealth v. Brown, 462 Mass. 620, 629-630 (2012).
"It has been long established that the specific intent to steal is negated by a finding that a defendant held an honest, albeit mistaken, belief that he was entitled to the property he took." Commonwealth v. Liebenow, supra at 157. The defendant was entitled to such an instruction upon request if supported by the evidence. However, we cannot say on this record that counsel's failure to request the instruction was so manifestly unreasonable as to defy strategic explanation. The defendant's theory was that he was the pawn of two individuals posing as doctors, who duped him into believing that they were authorized to give the defendant computer equipment owned by MGH as part of a "mutually beneficial scheme." A jury instruction on honest but mistaken belief could have undermined the primary trial strategy; the instruction in effect at the time would have contained the admonition that the belief be both "honest and reasonable." Criminal Model Jury Instructions for Use in the District Court, Instruction 8.520, supplemental instruction 7 (2009). It was not manifestly unreasonable for defense counsel to forego the instruction where he may not have wanted the jury to consider whether the defendant's beliefs were objectively reasonable, and instead wanted them to focus on whether the defendant had no specific intent to steal because he thought he was authorized to take the equipment.
In Commonwealth v. Liebenow, 470 Mass. at 158-160, the Supreme Judicial Court clarified that a sincerely held but unreasonable belief presents a valid defense. However, the reasonableness of the belief may be considered for purposes of determining if it was sincerely held by the defendant. Id. at 161. Counsel here did not have the benefit of Liebenow; the instruction in existence at the time of trial drew on the existing cases and did not fully explicate the distinction drawn in Liebenow, and ordinary fallible counsel would not be expected to rewrite the model jury instruction.
4. Prosecutor's closing argument. The defendant objected to five aspects of the Commonwealth's closing argument at trial. We review to determine whether the statements were improper, and if so, whether there was prejudicial error. See Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 324-325 (2001). See also Commonwealth v. Rosario, 430 Mass. 505, 515 (1999). "In analyzing a claim of improper argument, the prosecutor's remarks must be viewed in light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.'" Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002), quoting from Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984).
a. Vouching. The defendant claims that the prosecutor's statement that this case involved "a great deal of police work" constituted improper vouching because it encouraged the jury to rely on the amount of work done by the officers as evidence of their credibility and suggested that there was other evidence that the jury did not hear. In the context of the Commonwealth's argument as a whole, the statement does not constitute improper vouching, because it simply served to highlight the amount of evidence collected by the police and offered by the Commonwealth at trial, and did not invite the jury to rely on the prestige of the government. See Commonwealth v. Wilson, 427 Mass. at 352.
b. Speculation. The prosecutor stated that she "guess[ed]" the "computers [were] not being scrubbed [of patient information] before they[ were] being sold." "Prosecutors may not 'misstate the evidence or refer to facts not in evidence' or 'play . . . on the jury's sympathy or emotions . . . .'" Commonwealth v. Carriere, 470 Mass. 1, 19 (2014), quoting from Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987). However, prosecutors may argue "forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Carriere, supra, quoting from Commonwealth v. Kozec, supra at 516.
We agree with the defendant that the prosecutor's guesswork was not appropriate for closing argument. We do not agree the argument was so improper as to have overwhelmed or misled the jury based on an appeal to fear or emotion. The case against the defendant was strong. There was evidence that the defendant had taken items containing personal identifying information, that these items were found in his home, and that they had value. The jury were instructed that closing arguments are not evidence, and the jury are presumed to have adhered to these instructions. See Commonwealth v. Perez, 444 Mass. 143, 151 (2005); Commonwealth v. Alcantara, 471 Mass. 550, 557 (2015).
The prosecutor's statement questioning the plausibility, in light of the income typically earned by doctors, of the defendant's explanation that he was duped by two doctors into taking equipment was not improper. The prosecutor invited the jury to reach this conclusion by relying on their common sense. The invitation to rely on common sense was appropriate and not speculative. See Commonwealth v. Correia, 65 Mass. App. Ct. 27, 31-32 (2005).
c. Characterization. The defendant argues that, by referring to the defendant as "nothing but a thief" and referring to his testimony as "wildly ridiculous," the Commonwealth improperly invited the jury to decide the case on general terms and suggested the defendant had a criminal history of committing thefts. The prosecutor's characterization of the defendant as "nothing but a thief," though better left unsaid, was not so wholly improper as to constitute prejudicial error. The jury "are presumed to know 'that the prosecutor is an advocate' and to be able to recognize his arguments as advocacy and not statements of personal belief." Commonwealth v. Wilson, supra at 352 (citation omitted) (prosecutor's labelling of the defendant as a "triple murderer" not improper). Similarly, the prosecutor's reference to the defendant's testimony as "wildly ridiculous" was not improper. "A prosecutor is allowed to characterize a defendant's story." Commonwealth v. Espada, 450 Mass. 687, 699 (2008) (characterization of the defendant's story as "ridiculous"); Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 52 (2003) (same for "preposterous").
d. Misstatement of the evidence. The defendant claims that the prosecutor misstated the evidence when she commented that the defendant testified that he was in the hospital at 9:30 P.M. for a doctor's appointment, and that that testimony was implausible. In closing argument, "a prosecutor should not . . . misstate the evidence or refer to facts not in evidence . . . ." Commonwealth v. Kozec, supra at 516. Here, the prosecutor misstated the evidence; the defendant stated he was there to meet a doctor, not that he was being treated by one. Nevertheless, the judge instructed the jury before closing arguments and during the final charge that closing arguments are not considered evidence, and that a juror must disregard any argument that is not consistent with the juror's memory of the evidence. See Commonwealth v. Perez, supra. These instructions were sufficient to mitigate any prejudice that may have resulted from the prosecutor's challenged statements. See Commonwealth v. Dagley, 442 Mass. 713, 725 (2004) ("That the judge's final instruction did not include any express correction of the prosecutor's mischaracterization does not mean that the instruction was inadequate to cure any confusion caused by that mischaracterization").
Judgments affirmed.
By the Court (Hanlon, Sullivan & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: March 9, 2016.