COMMONWEALTH v. TORRES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of unarmed robbery and of armed carjacking. On appeal, he seeks reversal on two grounds. First, he argues that his trial counsel was constitutionally ineffective because counsel presented evidence that -- at the time of the incident in question -- there were outstanding warrants for his arrest. Second, he argues that the prosecutor misstated certain evidence in her closing argument. We affirm.

Background. We summarize the trial evidence as follows. The victim, Jose Rosado, was in the business of selling cars. On the night of February 7, 2017, Rosado agreed to show a 2003 white Infiniti to a man who had expressed interest in purchasing it. At approximately 10 p.m., multiple men arrived in a Jeep at the agreed-to meeting location in Lawrence where Rosado had the Infiniti stored. One of the men was identified at trial as codefendant Alexander Andrade. Rosado drove the Infiniti around the block, with Andrade as a passenger, as a test drive. After the test drive, Andrade agreed to purchase the Infiniti for a particular price. However, while Rosado was attending to paperwork to complete the purchase, Andrade placed a gun to his head and demanded that Rosado turn over various personal items, including a cell phone. At this time, Rosado noticed a second man, who was wearing something that concealed his face and holding a gun, standing nearby. After Andrade told Rosado not to move for ten minutes or they would kill him, Andrade and the masked man left the scene in the Infiniti, with the masked man driving. At some point, someone other than Andrade and the masked man drove the Jeep away.

Apparently unbeknownst to the assailants, Rosado was carrying a second cell phone, which he promptly used to contact his brother and the police. The Infiniti was soon spotted by police, and a lengthy car chase ensued. At one point, Andrade jumped from the car while it was still moving. He was then apprehended. The car chase continued until some ten law enforcement vehicles were in pursuit of the car on Interstate 93. The car's driver finally surrendered and subsequently was identified at trial as the defendant.

At trial, during cross-examination, defense counsel solicited from one of the police witnesses that the defendant had a number of outstanding arrest warrants at the time of the car chase. Then, during closing argument, counsel argued that the defendant was seeking to flee because of the arrest warrants, rather than his participation in any theft of the Infiniti and Rosado's personal items. In her own closing argument, the prosecutor argued that the defendant's fleeing was “very strong consciousness of guilt” evidence.

In her closing argument, the prosecutor also mentioned that Rosado was only “about” five feet three inches tall. The trial testimony was that Rosado was five feet four inches tall. No objections to the closing were lodged at trial.

Discussion. 1. Ineffective assistance. The defendant's attempt to flee from police provided evidence of his consciousness of guilt. See Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014), citing Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008). The fact that the defendant had outstanding arrest warrants at the time presented him with a conundrum. On the one hand, introducing such evidence offered an explanation for why the defendant might have fled the police other than the defendant's implied consciousness of guilt. On the other hand, introducing such evidence posed some risk that jurors might take it as improper evidence of the defendant's propensity for crime. Faced with that conundrum, defense counsel chose to elicit the evidence of the outstanding arrest warrants.

Because the issue comes to us on direct appeal, we do not have the benefit of hearing from trial counsel regarding his specific reasoning for soliciting the evidence.² Nevertheless, the defendant acknowledges what is otherwise obvious: that soliciting such evidence was the product of a conscious strategic decision. Because the defendant cannot show that counsel's “decision was manifestly unreasonable when made,” his claim that trial counsel was constitutionally ineffective necessarily fails (quotation and citation omitted). Commonwealth v. Watson, 455 Mass. 246, 256 (2009). See Commonwealth v. Moore, 480 Mass. 799, 816 (2018) (defense counsel's refusal to agree to nolle prosequi of drug charge brought against defendant also charged with murder was “textbook example of a reasonable strategic concession,” where existence of drug charge provided alternative explanation for incriminating statements defendant had made).

We additionally note that the judge gave the jury multiple specific limiting instructions. First, at the conclusion of the testimony of the officer who was asked about the outstanding warrants, the judge instructed the jurors that they could consider the evidence of the defendant's outstanding warrants only as to his “state of mind during the course of the events in question,” and not as evidence of “bad character or ․ propensity.” Second, in his final charge, the judge cautioned the jury that:

“[W]hen considering [consciousness of guilt] evidence, especially with respect to testimony you heard about [the defendant] being the subject of one or more outstanding arrest warrants at the time of the events in question, that [the defendant] is not on trial for any alleged prior criminal conduct on his part and you are not to consider such evidence as a substitute for proof of guilt of the offenses with which he is charged. You may use such evidence only for the purpose I have outlined to you.”

We presume the jury followed the judge's instructions. See Commonwealth v. Johnston, 467 Mass. 674, 692 (2014), citing Commonwealth v. Auclair, 444 Mass. 348, 358 (2005).

2. Closing argument. Because the defendant did not object at trial to the portions of the prosecutor's closing argument he now challenges on appeal, our review is limited to whether any error caused a substantial risk of a miscarriage of justice. See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016), citing Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

The prosecutor committed no error, much less caused a substantial risk of a miscarriage of justice, by arguing that the defendant's flight from police was strong evidence of consciousness of guilt. A prosecutor is allowed to marshal the evidence in the Commonwealth's favor and to “suggest ‘what conclusions the jury should draw from the evidence’ ” (citation omitted). Commonwealth v. Robinson, 482 Mass. 741, 752 (2019).

To the extent that the prosecutor misstated the evidence as showing that Rosado was “about” five feet three inches instead of five feet four inches,³ any such error plainly did not cause a substantial risk of a miscarriage of justice. Especially where the height of the victim had minimal, if any, bearing on the defendant's guilt or innocence, we are confident that a one-inch misstatement of the victim's height had no appreciable impact on the jury's verdict. Moreover, the judge instructed the jury that they were “the sole judges of the facts,” that they must determine the facts “based solely on the evidence,” and that “closing arguments are not evidence.” Again, we presume the jury followed the judge's instructions. See Johnston, 467 Mass. at 692, citing Auclair, 444 Mass. at 358.

Judgments affirmed.

FOOTNOTES

2.   As has frequently been observed, where a claim of ineffectiveness is made on direct appeal, the ineffectiveness must “appear[ ] indisputably on the trial record.” Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

3.   Given that the prosecutor used the qualifier “about,” the prosecutor's recounting of the evidence was arguably accurate.