Commonwealth v. Durango

711 N.E.2d 929, 47 Mass. App. Ct. 185, 1999 Mass. App. LEXIS 694
CourtMassachusetts Appeals Court
DecidedJune 24, 1999
DocketNo. 98-P-925
StatusPublished
Cited by3 cases

This text of 711 N.E.2d 929 (Commonwealth v. Durango) 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. Durango, 711 N.E.2d 929, 47 Mass. App. Ct. 185, 1999 Mass. App. LEXIS 694 (Mass. Ct. App. 1999).

Opinion

Brown, J.

The defendant was convicted by a Superior Court jury of trafficking in heroin in an amount of more than 200 grams, G. L. c. 94C, § 32E, and failure to stop a motor vehicle for a police officer, G. L. c. 90, § 25.1 On appeal, the defendant alleges that the trial judge erred in admitting prejudicial evidence relating to the defendant’s nationality, his prior use of an alias, his use of what was alleged to be an altered alien [186]*186identification card, and his marital status, none of which was relevant to the crimes with which he was charged. We affirm.

Based on the evidence presented at trial, the jury could have found the following facts: On the evening of March 19, 1996, State Trooper Michael Butler was on routine patrol in a marked State police cruiser on 1-84 near the intersection with the Massachusetts Turnpike. At approximately 10:00 p.m., he observed a car going eastward on 1-84 toward the Sturbridge entrance to the turnpike; its license plate area was not illuminated. Unable to ascertain whether the car had a license plate, Butler activated his lights and siren and gave pursuit.2

Although Butler was directly behind the car, it did not stop. It did, however, slow down. When the car reached the toll booth, it passed through a closed toll lane without stopping. At that point, Butler was able to pull in front of the car, forcing the driver to stop.

Butler approached the car and ordered the driver, the sole occupant, to produce identification. In response, the driver — later identified as the defendant — handed Butler a Massachusetts license as well as some other identity cards, including an alien registration card. Using the radio in his cruiser, Butler attempted to confirm that the license was valid and, at the same time, checked to see if the defendant had any outstanding warrants.

While awaiting a response, Butler received a communication from a'supervisor at the toll station indicating that one of the toll collectors had seen the defendant toss something onto the side of the road as the defendant drove through the toll lane. Based on that information, Butler summoned assistance and continued to detain the defendant. A subsequent search of the roadside in the area indicated by the toll taker yielded a plastic bag containing heroin with a street value of approximately $400,000.

The defendant was placed under arrest. A search of the defendant’s car by a specially trained drug-sniffing dog yielded [187]*187positive results for traces of drugs on a cassette box found on the floor of the front of the passenger compartment. Other relevant evidence is included in our analysis as necessary.

The gist of the defendant’s argument is that the trial judge permitted the prosecutor to introduce several pieces of evidence, none of which was relevant to the charges at issue in the defendant’s trial, but all of which held the potential to prejudice the jury against him. The defendant argues that the aggregate impact of this improper evidence was to deprive the defendant of a fair trial in which guilt was assessed solely upon objective consideration of the Commonwealth’s proof. We consider each piece of disputed evidence in turn.

Far and away the most serious argument advanced by the defendant is that the prosecutor attempted to sway the jury through evidence of the defendant’s national origin. The defendant apparently is from Colombia, and he argues that, by stressing this fact, the prosecutor sought to portray the defendant as a member of one of that country’s drug cartels — criminal syndicates that figure frequently in news reports to which the jury likely had been exposed. Had the prosecutor, in fact, aggressively urged such an inference, reversal almost certainly would be required. To obtain a conviction based on ethnic biases is grossly improper. However, even a cursory reading of the record suggests that nothing of the sort occurred here.

The sole reference to the defendant’s national origin occurred — if at all — during cross-examination of a defense witness. The prosecutor asked the witness where she was from, and the witness replied, “Colombia.” Later, the prosecutor asked the same witness how she knew the defendant. The witness stated that she had known the defendant her whole life (the record is somewhat garbled at this point; however, for the sake of argument, we shall assume that the witness stated that she had known the defendant her whole life). She did not, however, specifically indicate that the defendant also was Colombian. Further, she did not state when either she or the defendant had arrived in the United States. The prosecutor never made any further mention of the national origin of either the witness or the defendant.

Without question, a prosecutor may not attempt to sway a jury’s verdict by focusing their attention on extraneous matters. See and compare Commonwealth v. Santiago, 425 Mass. 491, 501-502 (1997). See also Commonwealth v. Bibby, 35 Mass. [188]*188App. Ct. 938, 941 (1993) (error for prosecutor to argue that defendant’s offense was not a “victimless crime”). Compare Commonwealth v. Chalifoux, 362 Mass. 811, 817 (1973) (admission of pictures not error because they had a “distinct purpose” at trial). A jury is expected to render a verdict upon careful consideration of the evidence presented at trial. When the jurors’ emotions are excited, or their attention diverted to extraneous matters, the potential is created for them to depart from this narrow task.

On the basis of these principles, we deemed it reversible error for the prosecutor in Commonwealth v. Gallego, 27 Mass. App. Ct. 714, 717-720 (1989), to appeal in his closing, among other things, “to the deep public anxiety about the [nation’s] drug problem” and to refer to Colombian drug cartels in particular. Id. at 717-718. The remarks at issue here, however, were of an entirely different character. The reference to Colombia was isolated and was never linked directly to the defendant or to illegal drug sales. This makes for a significant contrast with the facts of Gallego.

We note that the disputed reference here was significantly more benign than the expert evidence challenged in Commonwealth v. Munera, 31 Mass. App. Ct. 380, 388 (1991), in which the prosecutor referred to the distinctive practices of Colombian drug dealers. There, in denying the defendant relief, we reasoned that the testimony in no way was used to suggest that the defendant was guilty merely by virtue of his ethnic background. If Munera establishes a line for proper argument in this context, the prosecutor here was well within permissible limits.

Next, the defendant asserts that the prosecutor made improper use of the fact that the defendant had previously used an alias. After the defendant’s arrest, police sent the FBI a copy of his fingerprints. The FBI reported that, according to its record, the fingerprints belonged to one Carlos I. Bueno. At trial, the prosecutor questioned the defendant about his use of an alias, ostensibly for the purpose of suggesting that the name he had given Trooper Butler at the time of his arrest, Harvey Durango — the name that appeared on his alien registration card and his driver’s license — was an alias. The giving of a false name to police has' been deemed probative of a defendant’s consciousness of guilt. See. Commonwealth v. Mack, 423 Mass. 288, 291 (1996).

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Bluebook (online)
711 N.E.2d 929, 47 Mass. App. Ct. 185, 1999 Mass. App. LEXIS 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-durango-massappct-1999.