Commonwealth v. Delacruz

811 N.E.2d 512, 61 Mass. App. Ct. 445, 2004 Mass. App. LEXIS 1036
CourtMassachusetts Appeals Court
DecidedJuly 12, 2004
DocketNo. 03-P-200
StatusPublished
Cited by5 cases

This text of 811 N.E.2d 512 (Commonwealth v. Delacruz) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Delacruz, 811 N.E.2d 512, 61 Mass. App. Ct. 445, 2004 Mass. App. LEXIS 1036 (Mass. Ct. App. 2004).

Opinion

Greenberg, J.

From convictions of armed assault with intent to rob two individuals inside a jewelry store in Shrewsbury, the defendant, Thomas Delacruz, appeals. These offenses occurred in the late morning of January 22, 2000, when George Abien, the owner of the store, and his cousin, Aziz Bastug, were at work. The defendant raises issues concerning prosecutorial excess in closing argument and the ineffectiveness of trial counsel. As to the second issue, the appeal is from the denial of a motion for new trial.

We set forth the evidence as presented to the jury insofar as it is necessary to discuss the defendant’s claims, particularly in order to determine whether defense counsel’s omissions “likely deprived the defendant of an otherwise available, substantial ground of defen[s]e,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), or whether “better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Commonwealth v. Curtis, 417 Mass. 619, 625 n.4 (1994).

The Commonwealth’s theory at trial was that the defendant and two accomplices, James Forte and Edgar Rivera, planned and committed the robbery. Forte was the Commonwealth’s sole material witness, and testified as a result of a plea agreement with the Commonwealth in exchange for a reduced sentence in this case and four other cases. According to Forte, about a week prior to the robbery, he drove with the defendant and Rivera to Shrewsbury in the defendant’s car. They cased the store at night, and the plan was to rob the store the next day. Back at the defendant’s apartment, an argument ensued between Forte and the defendant, during which the defendant struck Forte with a forty-pound dumbbell. That put the robbery plan on ice, but not for long.

About a week later, according to Forte, the three of them left from Rivera’s aunt’s apartment on Chandler Street in Worcester and drove to a parking lot close to the store. The defendant supplied Forte with a loaded handgun. He had assigned Forte and Rivera as the hold-up men, and he would act as lookout and drive the getaway car that would be parked nearby. There was a [447]*447prearranged escape route for Rivera and Forte to follow to the waiting vehicle. Both of them were to don ski masks. Rivera was supplied with a bag for the loot.

From the moment Forte and Rivera entered the store, the whole scheme went awry. Forte jumped over a merchandise counter, prompting Bastug to jump from his chair in an attempt to foil the robbery by wrestling Forte to the ground. A random shot was fired as Forte grappled with Bastug. A second errant shot was fired before Forte dropped the gun. Meanwhile, Rivera bagged some jewelry and fled the scene, leaving Forte to fend off Abien and Bastug, who had Forte pinned down. At that point, Forte broke loose and dove through a glass window, ripping off his sweatshirt, ski mask, and sneakers in the process. Once outside, he discovered that his sweatpants had fallen below his knees. So as not to impede his escape, he removed them and in that state of undress, managed to flag down the defendant and Rivera as they were about to drive out of a nearby parking lot. They repaired to Rivera’s aunt’s apartment.

The next day the defendant’s car was stopped for a minor traffic violation. Forte was inside the car and detained. He was brought to the Shrewsbury police station where he confessed to the robbery and implicated Rivera and the defendant.

The defendant testified to an alibi and denied that he was involved in the robbery; not only was he not at the scene of the crime, but he played no role in planning or executing it.

1. Prosecutor’s closing argument. Because the Commonwealth’s case rested almost entirely on Forte’s testimony, the bulk of the prosecutor’s closing argument dealt with Forte’s version of the events. On appeal, the defendant now contends that the prosecutor unfairly emphasized and bolstered Forte’s credibility by reading verbatim portions of the trial transcript and stating facts that were not in evidence. Trial counsel lodged no objection to the reading of the transcript during the prosecutor’s argument. Our review is thus confined to deciding whether, if error, a substantial risk of a miscarriage of justice occurred. See Commonwealth v. Purrier, 54 Mass. App. Ct. 397, 403 (2002).

It is important to note that the defendant does not contend that the prosecutor misquoted the transcript or that he read [448]*448testimony that was struck or offered for nonsubstantive purposes. Rather, the defendant’s argument is that, by reading selected portions, the prosecutor impermissibly highlighted and overemphasized certain aspects of the case.

The matter is one of first impression in the Commonwealth. In support of his position, the defendant relies on two cases decided by the Illinois Appeals Court, People v. Hoggs, 17 Ill. App. 3d 67, 70 (1974), and People v. Ammons, 251 Ill. App. 3d 345, 347 (1993) (reading from transcripts during closing argument is improper). On the other hand, there is ample precedent for allowing counsel to read portions of the transcript during closing argument. See Byrnes v. United States, 327 F.2d 825, 840 (9th Cir.), cert, denied, 377 U.S. 970 (1964) (“reading of the reporter’s transcript of the precise language used by the witness is the only safe way to be accurate”); United States v. Kuta, 518 F.2d 947, 954 (7th Cir.), cert, denied, 423 U.S. 1014 (1975) (“no reason to establish a per se rule penalizing accuracy”).

As far as we are able to discern, Illinois is the only jurisdiction that has adopted a per se rule prohibiting such reading. It seems to us that the better rule relegates the question of whether counsel may read from the transcript during closing argument to the sound discretion of the trial judge. Ordinarily, the trial judge is in the best position to determine, ahead of time, whether such a reading is appropriate and to place whatever limits on the prosecutor or trial counsel as are necessary to expedite the proceedings. We can envision a situation in which both sides could engage in prolonged readings, to counter one another, in contradiction of the rule that the jury’s collective memory controls. The situation is analogous to the trial judge having discretion to permit the jury to read portions of the transcript at their own request. See United States v. McCoy, 517 F.2d 41, 44 (7th Cir. 1975); Stone v. United States, 506 F.2d 561, 564 (8th Cir. 1974).

Accordingly, we think the better practice would be for counsel, prior to the beginning of closing arguments, to make a proffer to the judge of what parts of the transcript he or she intends to read and for what purpose. This protocol would allow opposing counsel to be heard on the request, and permit the [449]*449judge to place appropriate limitations on out-of-context readings of what purports to be an official version of what was said. The judge can then evaluate counsel’s proffer and determine the likelihood of prejudice. See Bing Fa Yuen v. State, 43 Md. App. 109, 118-119 (1979).

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Bluebook (online)
811 N.E.2d 512, 61 Mass. App. Ct. 445, 2004 Mass. App. LEXIS 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-delacruz-massappct-2004.