COMMONWEALTH v. GARCIA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A District Court jury found the defendant guilty of distribution of a Class A substance (heroin) and possession of a Class A substance with the intent to distribute, G. L. c. 94C, § 32 (a). The defendant claims, for the first time on appeal, that the Commonwealth's use of his nickname, “Crazy,” at trial created a substantial risk of a miscarriage of justice. We affirm.

Background. The jury could have found that a cooperating witness contacted the defendant and arranged to meet with him to conduct a controlled buy of heroin. The two completed the transaction, after which police followed and apprehended the defendant. The cooperating witness only “knew [the defendant] as Crazy,” which was the name the defendant himself had given to that witness; the cooperating witness, without objection, used that nickname in his testimony. Defense counsel also used the nickname during cross-examination of the cooperating witness, in direct examination of the defendant (who testified that his street name was not “Crazy,” but “Brazil”), and in closing argument. The prosecutor did not use the nickname in his opening statement or closing argument.

Discussion. We review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002). “[R]eferences to a defendant's alias (or nickname) by the prosecution can be prejudicial because ‘[a]liases can be suggestive of bad character and prior criminality, and therefore raise a possibility that the jury will improperly consider criminal propensity.’ ” Commonwealth v. Martinez, 458 Mass. 684, 697 (2011), quoting Commonwealth v. Carter, 423 Mass. 506, 514-515 (1996). “But a prosecutor may refer to, or ask witnesses about, a defendant's nickname or alias when there is a reason to do so.” Martinez, supra.

There was such a reason here: the cooperating witness knew the defendant only by his nickname and had no other way to refer to him. “In the circumstances of this case, the defendant's nickname was relevant to identity.” Martinez, 458 Mass. at 698. See Commonwealth v. Manning, 44 Mass. App. Ct. 695, 705 (1998). “The prosecutor's references to the nickname were confined to a few identity-related questions he posed to the[ ] witness[ ], and he did not mention the nickname ․ in his opening statement or closing argument.” Martinez, supra (no error in using defendant's nickname, “Pinocchio,” at trial). Contrast Commonwealth v. Martin, 442 Mass. 1002, 1003 (2004) (prosecution's repeated, gratuitous use of defendant's alias, including comment in closing argument, “How can you trust somebody who has two names at the outset?,” was unduly prejudicial and required reversal of defendant's conviction). This case is nothing like Martin; there was no error and thus no substantial risk of a miscarriage of justice.

Judgments affirmed.