Com. v. Rivera

• Citation: 682 N.E.2d 636,425 Mass. 633
• Parties: COMMONWEALTH v. Luis A. RIVERA.
• Decision Date: 29 July 1997
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 636

682 N.E.2d 636

425 Mass. 633

COMMONWEALTH v. Luis A. RIVERA.

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 9, 1997.

Decided July 29, 1997.

Robert C. Sacco, Holyoke, for defendant.

Carlene A. Pennell, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

LYNCH, Justice.

A criminal complaint was issued in the Lowell Division of the District Court Department against the defendant charging him with possession of a class B substance with intent to distribute in violation of G.L. c. 94C, § 32A (a ), and with possession of a class B substance with intent to distribute within 1,000 feet of a school zone in violation of G.L. c. 94C, § 32J. The defendant's pretrial motion to suppress was accompanied by a sworn affidavit. After a three-day trial, the defendant was convicted of both charges by a jury of six. The defendant appealed from his convictions. We transferred the case here on our own motion.

On appeal, the defendant contends that: (1) he was improperly impeached with an affidavit that he filed with his motion to suppress; (2) a police officer was allowed to give opinion testimony; (3) the prosecutor's closing argument improperly directed the jury to consider his prior convictions for improper character purposes; and (4) the judge improperly denied his motions for required findings of not guilty. We affirm.

Facts. The jury could have found the following facts. On December 31, 1994, Inspectors Philip J. Conroy and John Boutselis of the Lowell police department responded to a complaint about automobiles blocking a roadway. After speaking with several people in the vicinity, the officers set up surveillance of 125-127 Salem Street, positioning themselves so as to observe the rear entry of an apartment on the third floor, left hand side of the building. During the course of their surveillance, the officers twice witnessed individuals climb the rear entry staircase to this apartment, engage in a short conversation with a man inside, make a hand-to-hand exchange with that man at the apartment's threshold and then leave. Each conversation and exchange lasted approximately three to five minutes. The officers could not hear the conversations and could not see what was exchanged; nor could they see the facial characteristics of the man inside the apartment. The officers were, however, able to observe that the man inside the apartment was of medium height and was wearing a black jacket and a black baseball cap.

After twice observing this activity the officers repositioned themselves closer to the apartment. Two more men, one Caucasian and one Hispanic, then approached the apartment. Inspector Conroy, who was thirty feet away and aided by a light illuminating the apartment threshold, later identified the man inside the apartment as the defendant. The officers witnessed another conversation and exchange; Conroy then proceeded up the staircase "at a fast pace," and, using his radio, told Inspector Boutselis to watch the front door of the apartment building and stop anyone leaving the building. Conroy then apprehended the Caucasian man whom he had seen engaging in the exchange with the defendant.

Boutselis testified that the defendant, still wearing a black jacket and baseball hat, left the apartment building through the front door. On seeing Boutselis, the defendant dropped two clear plastic "baggies" to the ground, which laboratory testing revealed contained cocaine. Boutselis arrested the defendant and escorted him back to the apartment.

A protective sweep of the apartment, which was sparsely furnished, disclosed a machete near the door where the officers had observed the defendant engage in conversations and exchanges with various individuals. A search of the defendant revealed a knife, a pager, twenty dollars, and a key which fit the lock on the apartment door. Conroy knocked on the only other door on the third floor of the apartment building and spoke to one of the occupants, Yolanda Ortiz, who stated that the defendant had not been in her apartment at any time that evening.

1. The affidavit. The defendant's trial testimony differed significantly from his affidavit filed in support of his motion to suppress. The defendant now argues that the Commonwealth's use of the affidavit to impeach him was error because: (1) the affidavit was an involuntary statement by the defendant and was thus inadmissible; (2) the prosecutor's cross-examination based on the affidavit violated G.L. c. 278, § 23, and encroached on the defendant's right to remain silent; and (3) it violated his right not to have evidence of the assertion of his right to remain silent used against him.

Defense counsel's only objection to the use of the affidavit was that it offended the best evidence rule. ¹ , ² Thus, we reject the defendant's contentions that he properly preserved his objections to the admission and use of the affidavit and fairly alerted the trial judge to potential errors now claimed on appeal. See Commonwealth v. Barnoski, 418 Mass. 523, 534, 638 N.E.2d 9 (1994); Commonwealth v. Sherick, 401 Mass. 302, 303, 516 N.E.2d 157 (1987). See also Commonwealth v. Marchionda, 385 Mass. 238, 242, 431 N.E.2d 177 (1982) ("[a]n issue not fairly raised before the trial judge will not be considered for the first time on appeal"). Indeed, while defense counsel objected to several questions regarding the affidavit, it is clear that he did not object to the majority of questions. Moreover, the objections raised by defense counsel are not those the defendant now presses on appeal. Thus while the defendant properly points out that Mass. R.Crim. P. 22, 378 Mass. 892 (1979), does not require a party to state the grounds for an objection, a defendant "is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to this court on a different ground." Commonwealth v. Tyree, 387 Mass. 191, 213, 439 N.E.2d 263 (1982), cert. denied, 459 U.S. 1175, 103 S.Ct. 825, 74 L.Ed.2d 1021 (1983), quoting Commonwealth v. Flynn, 362 Mass. 455, 472, 287 N.E.2d 420 (1972). ³ We review the defendant's claims, therefore, only to determine whether a substantial risk of a miscarriage of justice resulted from the use of the affidavit. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967).

a. Under Mass. R.Crim. P. 13(a)(2), 378 Mass. 871 (1979), a party filing a pretrial motion must file "an affidavit detailing all facts relied upon in support of the motion." The defendant claims, therefore, that, because he was required to file an affidavit in support of his motion, the affidavit is an involuntary statement that is not admissible for any purpose. We disagree.

It has been well established that a defendant's testimony in support of a motion to suppress evidence on grounds pursuant to the Fourth Amendment to the United States Constitution may not be admitted against him at trial on the issue of guilt. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968).

This rule, however, has not been applied to exclude the use of prior inconsistent statements for impeachment purposes. See United States v. Quesada-Rosadal, 685 F.2d 1281, 1283 (11th Cir.1982) ("the use of prior inconsistent statements given at a suppression hearing can be used to impeach a defendant's trial testimony, whether given during direct or cross examination"). See also United States v. Smith, 940 F.2d 710, 713 (1st Cir.1991) (suggesting that testimony from preliminary hearing might be used for purposes of impeachment at trial); United States v. Charles, 738 F.2d 686, 698 (5th Cir.1984) (noting that suppression hearing testimony might be used for purposes of impeachment at trial). Cf. Commonwealth v. Judge, 420 Mass. 433, 446 & n. 9, 650 N.E.2d 1242 (1995) (where defendant takes stand at pretrial hearing on motion to suppress confession, fact that testimony may later be used at trial does not mean cross-examination of defendant at pretrial hearing should be limited). ⁴ In declining to extend the protection of Simmons v. United States, supra, to prohibit the use of prior inconsistent statements, courts have emphasized the need to protect the integrity of the judicial process. See United States v. Beltran-Gutierrez, 19 F.3d 1287, 1291 (9th Cir.1994). See also United States v. Kahan, 415 U.S. 239, 243, 94 S.Ct. 1179, 1181, 39 L.Ed.2d 297 (1974) (recognizing that Court had not decided whether testimony given at suppression hearing may be used for impeachment purposes but suggesting that protection of Simmons, supra, is not to be converted into license for false testimony). Indeed, because a defendant has no right to commit perjury, he or she cannot expect to give trial testimony markedly different from pretrial testimony with impunity. See Commonwealth v. Judge, supra at 446, 650 N.E.2d 1242. Cf. Jones v. Commonwealth, 327 Mass. 491, 493, 99 N.E.2d 456 (1951).

By so concluding, we emphasize that, if a defendant chooses to file a pretrial motion accompanied by a supporting affidavit signed by the defendant, the only burden placed on the defendant is a permissible one--that he or she tell the truth. Commonwealth v. Judge, supra. See Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Thus, where there is no error, there cannot be a substantial risk of a miscarriage of justice. ⁵

b. The defendant next contends that the prosecutor's cross-examination based on the affidavit encroached on the defendant's right to remain silent and violated G.L. c. 278, § 23. ⁶ We disagree.

It is fundamental that evidence of a defendant's postarrest, post-Miranda silence cannot be used for any purpose. See Commonwealth v. Teixera, 396 Mass. 746, 752, 488 N.E.2d 775 (1986). Similarly, "comments on postarrest statements indicating a defendant's intention to exercise his or her right to remain silent are equally...