NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-865
COMMONWEALTH
vs.
JONUEL CARATTINI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Jonuel Carattini, appeals from convictions
of drug and firearm offenses, from the orders denying his
motions for a new trial, and from the order denying his motion
for reconsideration of the second motion for a new trial. He
argues that a new trial is warranted because the prosecutor
improperly elicited evidence of the defendant's postarrest
silence and presented police testimony that was demonstrably
false. The defendant contends that those improprieties were
compounded by the prosecutor's closing argument, and their
cumulative effect requires reversal of the convictions. The
judge who presided at trial also ruled on the motions for a new
trial, after conducting an evidentiary hearing on each motion.1
1 The same judge also denied the defendant's motion for reconsideration. She concluded that those issues, either individually or
cumulatively, were not grounds for a new trial. We affirm.
Background. The jury could have found as follows. On July
21, 2013, Lawrence police received a report of shots fired at an
apartment building. There, medical personnel found Angel
Miranda, who had been shot in the foot. From another victim on
the sidewalk, a blood trail led to the second-floor apartment.
Detective Kevin Nigohosian telephoned the defendant, who lived
in that apartment but was then in Florida, and informed him that
police were investigating a shooting.2
In the early morning of July 22, police executed a search
warrant at the apartment, seeking evidence of the shooting. In
the living room were signs of a struggle. From the defendant's
bedroom, police seized ammunition found in a drawer. From a
closet in that bedroom, police seized a bullet-proof vest and a
locked safe. In another bedroom, police found a duffel bag in a
closet and from it seized documents and a wallet belonging to
Miranda.
In the early morning of the next day, July 23, Sergeant
Joseph Beaulieu and Officer Tim Yerian responded to the
apartment because the defendant and his wife had reported a
2 Detective Nigohosian obtained the defendant's telephone number from Samuel Rosa, who arrived at the crime scene and told police that the defendant had sent him to retrieve the defendant's dog.
2 breaking and entering.3 Either the defendant or his wife told
the officers that among the items missing was a safe containing
between $5,000 and $8,000. Sergeant Beaulieu explained that
police had the safe. The defendant told the officers that other
people had access to the apartment.
At about 3 A.M. on the following day, July 24, police
executed another search warrant at the apartment, now seeking
Miranda, for whom they had an arrest warrant. In a closet,
police found another man. Also in that closet were a digital
scale and an open bottle that was labeled as containing a
dietary supplement but in fact contained thirty-five grams of
heroin. From the kitchen counter, police seized evidence of
drug distribution including a bottle of Inositol (a cutting
agent), plastic baggies, the box from the digital scale, and a
list of police scanner codes. The defendant was present, and
police arrested him.
Pursuant to a third search warrant, police opened the safe
and found a firearm, holster, ammunition, documents bearing the
defendant's name, and cash totaling $2,370, sorted into four
packets, each wrapped in papers on which were written dollar
amounts and recent dates. The firearm was not consistent with
the ballistics evidence from the July 21 shooting.
3 As of then, the defendant and his wife were not yet married. For simplicity, we refer to her as his wife.
3 The defense theory was that the defendant was unaware of
the heroin in the closet or the evidence of drug distribution in
the kitchen, and that the firearm and cash had been placed in
the safe by others while he was in Florida. The defendant
testified that the safe was a "community safe" to which others
had access because its combination was posted nearby, but he did
not allow anyone to put guns or money in it. The defendant
testified that in their July 21 telephone call he had told
Detective Nigohosian the names of several people who had access
to the apartment. He also testified that on July 23, when he
and his wife reported the safe stolen, police did not ask him
for its combination. He denied that he or his wife told police
that there was cash in the safe.
The jury convicted the defendant of trafficking in eighteen
or more grams of heroin, unlawful possession of a firearm, and
unlawful possession of ammunition. The defendant filed a motion
for a new trial arguing that the prosecutor had improperly
cross-examined him about his postarrest silence and elicited
false police testimony. After an evidentiary hearing at which
the judge heard testimony from the prosecutor and from two
officers who had participated in the searches of the apartment,
Detective Nigohosian and Sergeant John Dushame, the judge denied
the motion. The defendant filed a second motion for a new
trial, now alleging that trial counsel was ineffective for not
4 impeaching a detective with a search warrant affidavit. After
another evidentiary hearing at which trial counsel testified,
the judge denied that motion and the defendant's motion for
reconsideration. The defendant now appeals.
Discussion. Because the defendant's arguments on appeal
from his convictions largely rest on claims he raised in his
motions for a new trial, we focus on his claims in that context.
"We review the judge's decision [on a motion for a new trial]
only to determine whether there has been a significant error of
law or other abuse of discretion" (citation omitted).
Commonwealth v. Dobbins, 96 Mass. App. Ct. 593, 598 (2019).
"Where a judge conducts an evidentiary hearing, we 'accept the
[judge's] findings where they are supported by substantial
evidence in the record.'" Commonwealth v. Jacobs, 488 Mass.
597, 600 (2021), quoting Commonwealth v. Velez, 487 Mass. 533,
540 (2021). We "extend[] special deference to the action of a
motion judge who [as here] was also the trial judge."
Commonwealth v. Rosario, 460 Mass. 181, 195 (2011).
1. Postarrest silence. The defendant argues, as he did in
his first motion for a new trial, that the prosecutor improperly
cross-examined him about his failure at the time of his arrest
to inform police that other people had access to the safe. The
defendant did not object to that testimony. In response to the
motion the Commonwealth candidly conceded, as it does again in
5 this court, that the prosecutor's questions improperly impinged
on the defendant's constitutional right to remain silent. The
judge considered whether the error created a substantial risk of
a miscarriage of justice, and concluded that it did not.
To begin, we note that the defendant's prearrest
statements, or his omissions from them, are not at issue. As
mentioned above, the defendant testified that on July 21 he told
Detective Nigohosian on the telephone that others had access to
the apartment, and that on July 23 when he and his wife reported
the safe stolen, police did not ask for its combination. On
cross-examination, the prosecutor elicited, without objection,
that on July 23 the defendant did not tell police that others
had access to the safe. The defendant has not argued, here or
in the trial court, that it was improper for the prosecutor to
question him about omissions from those prearrest statements to
police.
The impropriety occurred after the prosecutor elicited that
the defendant had been arrested on July 24. This exchange
between the prosecutor and defendant ensued:
Q.: "So is it that point that you told [police] what the code was to the safe?"
A.: "Excuse me?"
Q.: "Did you tell them ever that hey, listen, there was a safe that was taken."
A.: "Yes."
6 Q.: "And multiple people have access to that safe."
Q.: "You told them at the police station?"
A.: "No."
Q.: "You told them the code to the safe?"
A.: "No. I did not."
The defendant did not object.
The defendant argues that because he later objected to the
prosecutor's reference in closing to that testimony, the
prejudicial error standard should apply to its admission. The
argument is unavailing, because after closing arguments the
judge offered to "strike" any evidence of what the defendant
said at the time of his arrest, but defense counsel declined the
offer. In those circumstances, we review the prosecutor's
cross-examination of the defendant about his postarrest silence
to determine whether a substantial risk of a miscarriage of
justice exists. Since the defendant made a tactical decision to
decline the judge's offer to strike the testimony or give a
curative instruction, "he cannot complain of the judge's failure
to take these actions." Commonwealth v. Simmonds, 386 Mass.
234, 242 (1982). Cf. Commonwealth v. Letkowski, 469 Mass. 603,
617 & n.21 (2014) (objection to hypothetical question to defense
expert about what arrestee would think about speaking to police
did not preserve objection to improper police testimony and
7 closing argument about defendant's postarrest silence). See
Commonwealth v. Fowler, 431 Mass. 30, 41-42 (2000) (objection to
testimony on other grounds did not preserve claim that it
violated right to remain silent).
"There is no question that, under the fundamental
principles of jurisprudence, evidence of a criminal defendant's
postarrest, post-Miranda silence cannot be used for the
substantive purpose of permitting an inference of guilt."
Commonwealth v. Beneche, 458 Mass. 61, 73 (2010), quoting
Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983).4 See
Commonwealth v. Andujar, 57 Mass. App. Ct. 529, 535-536 (2003).
In assessing the degree of harm caused by constitutional
evidentiary error, courts consider "(1) the relationship between
the evidence and the premise of the defense; (2) who introduced
the issue at trial; (3) the weight or quantum of evidence of
guilt; (4) the frequency of the reference; and (5) the
availability or effect of curative instructions." Letkowski,
469 Mass. at 619, quoting Mahdi, supra at 696-697. Applying
those factors, we conclude that no substantial risk of a
miscarriage of justice arose.
4 The prosecutor did not put before the jury evidence that the defendant invoked his Miranda rights. At sidebar, the prosecutor commented that after his arrest the defendant "invoked his right to an attorney."
8 The premise of the defense was that, as counsel said in his
opening, the defendant "was not hiding anything from" the
police, and someone else had put the gun and the cash in the
safe while he was in Florida. Cf. Commonwealth v. Jones, 477
Mass. 307, 327-328 (2017) (where defendant elicited
"considerable evidence creating the impression of full
cooperation with the police," he "open[ed] the door" to evidence
that he refused to appear before victim for identification).
The judge found that the evidence of the defendant's
constructive possession of the firearm and heroin was "strong."
In that context, and where the defendant declined the judge's
subsequent offer to strike the testimony, we conclude that the
prosecutor's brief questioning of the defendant about his
failure to tell the police the combination to the safe after his
arrest on July 24, although certainly troubling, was a minor
point that did not materially affect the verdict or give rise to
a substantial risk of a miscarriage of justice.
2. "False" testimony. The defendant contends that the
prosecutor elicited false testimony from police in three
respects. Relying on Commonwealth v. Ware, 482 Mass. 717, 725
(2019), he argues that the orders denying his motions for a new
trial should be reviewed under the standard governing
intentional introduction of "blatantly false" testimony, and
thus reversal is required if there is "any reasonable likelihood
9 that the false testimony could have affected the judgment of the
jury." Commonwealth v. Gilday, 382 Mass. 166, 177 (1980),
quoting United States v. Agurs, 427 U.S. 97, 103 & n.9 (1976).
We are not persuaded. After presiding at trial and the two
evidentiary hearings, the judge concluded, applying Ware, supra,
that police witnesses did not give intentionally false testimony
at trial, and the prosecutor did not commit misconduct by
failing to correct the testimony or by arguing from it in
closing. We defer to the judge's credibility determinations.
a. Inositol and dietary supplement bottles. At trial,
Sergeant Dushame testified that evidence of drug distribution
that police found on July 24 -- including the Inositol bottle
and the dietary supplement bottle containing heroin -- had not
been in the apartment during the police search on July 22. The
defendant argues that testimony was false because "[c]areful
inspection" of photographs of the July 22 search "would have
revealed" that they depicted the Inositol bottle in a kitchen
cabinet and the dietary supplement bottle on a bedroom floor.5
5 The Commonwealth provided those photographs to the defense in pretrial discovery. As depicted in those photographs, the label on the Inositol bottle was facing the wall of the kitchen cabinet. The label on the dietary supplement bottle, which was capped, indicated that its contents were legal to possess. The judge concluded that "it cannot be said for sure" that those were the same bottles as the ones police seized on July 24, but "it is fair to assume that they might be." We have reviewed the July 22 photographs and compared them to photographs of the
10 The defendant further contends that the prosecutor committed
misconduct by failing to correct the false testimony.
The judge credited testimony of Sergeant Dushame and
Detective Nigohosian that neither remembered seeing the Inositol
or dietary supplement bottles during the July 22 search. The
judge found that "[n]o one, including the officers, the
prosecutor, or the defense attorney, noticed that bottles
similar to those seized on July 24, were depicted in the
photograph[s] taken during the July 22 search." The judge
concluded that Sergeant Dushame did not intentionally offer
false testimony. See Commonwealth v. Forte, 469 Mass. 469, 491
(2014) (percipient witnesses who described events differently
than as depicted in surveillance video did not offer
"objectively false" testimony). Inconsistencies between a
witness's testimony and documentary evidence due to factors such
as "poor perception" "do not constitute falsities." Id., citing
Commonwealth v. Daigle, 379 Mass. 541, 546-547 (1980). Contrast
Ware, 482 Mass. at 726 (trooper's testimony that in recorded
interview defendant had admitted being picked up near crime
scene was "blatantly false and pertained to a critical component
of the Commonwealth's case").
bottles admitted at the evidentiary hearing. We concur with the judge's conclusions.
11 Crediting the testimony of the prosecutor that she did not
know what the bottles depicted in the July 22 photographs were,
the judge also concluded that the prosecutor did not
intentionally introduce false testimony. In those
circumstances, we "reject the defendant's contention that the
Commonwealth knowingly used false testimony that reasonably
could have affected the judgment of the jury." Forte, 469 Mass.
at 491.
b. Defendant's ownership of safe. Cross-examined at trial
about why he did not have the safe tested for fingerprints,
Detective Nigohosian testified that he already "knew" that the
safe belonged to the defendant, who had reported it stolen and
in whose bedroom closet it was found. The defendant argues, as
he argued in his second motion for a new trial, that that
testimony "directly contradict[ed]" Detective Nigohosian's
search warrant affidavit averring that the safe would contain
evidence of the July 21 shooting.6 The defendant contends that
because he was in Florida on that date and was not a suspect in
the shooting, Detective Nigohosian's testimony was "false" and
6 In that affidavit, Detective Nigohosian averred that there was probable cause to believe that the safe contained evidence of the July 21 shooting, including firearms, ammunition, and "paperwork pertaining to positive identification of ownership." The affidavit did not name any suspect in the shooting, and was not required to do so. See Commonwealth v. Perry, 489 Mass. 436, 461 (2022) ("a search warrant need not identify a specific criminal suspect" [quotation and citation omitted]).
12 defense counsel was ineffective for not impeaching the detective
with the affidavit. We conclude, as did the judge, that
Detective Nigohosian's testimony that he believed the safe
belonged to the defendant was not inconsistent with his
affidavit averring that there was probable cause that the safe
contained evidence of the July 21 shooting. See Zurcher v.
Stanford Daily, 436 U.S. 547, 561 (1978) ("search warrants are
often employed early in an investigation, perhaps before the
identity of any likely criminal and certainly before all the
perpetrators are or could be known").
In any event, crediting defense counsel's testimony, the
judge found that counsel "would not, in his professional
opinion, have used [the search warrant affidavit] to impeach,
where, according to him, he had 'richer soils to till'
elsewhere." See Commonwealth v. Hudson, 446 Mass. 709, 715-716
(2006) (motion judge did not abuse discretion in concluding that
counsel's strategic decision not to impeach witness with
affidavit was reasonable when made). Indeed, defense counsel
likely did not want to focus the jury on the July 21 shooting,
which could be seen as motive evidence of drug dealing.
c. Police testimony that Miranda was transient. The
defendant argues that police testified falsely that they had
information that Miranda was homeless but was sometimes
"staying" at the apartment. The defendant contends that the
13 testimony contradicted information in Sergeant Dushame's
affidavit in support of Miranda's arrest warrant, which related
that named witnesses had seen Miranda at the apartment on
multiple occasions. The defendant contends that Sergeant
Dushame and Detective Nigohosian should have testified that they
"had information from multiple witnesses in the building that
[the defendant]'s apartment had been Miranda's 'home' for three
months." Putting aside that such testimony would have been
hearsay, the defendant has not shown prejudice. As the judge
noted, defense counsel effectively cross-examined both officers
about Miranda's access to the apartment. Further, the defendant
himself testified that Miranda was "homeless, basically, so he
would be around the property a lot."
3. Prosecutor's closing argument. The defendant argues
that the prosecutor's closing argument was improper in three
respects. The defendant objected only as to the first one, but
not on the same grounds he argues on appeal, and he declined the
judge's offer of a curative instruction. In those
circumstances, we review the closing argument to determine if a
substantial risk of a miscarriage of justice arose. See
Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).
"In closing argument, counsel may argue the evidence and
the fair inferences which can be drawn from the evidence."
Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978). "In
14 determining whether impermissible statements in a prosecutor's
closing argument require reversal, 'we consider (1) whether the
defendant seasonably objected; (2) whether the error was limited
to collateral issues or went to the heart of the case; (3) what
specific or general instructions the judge gave the jury which
may have mitigated the mistake; and (4) whether the error, in
the circumstances, possibly made a difference in the jury's
conclusions." Commonwealth v. Bois, 476 Mass. 15, 32 (2016),
quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000).
a. Reference to postarrest silence. The defendant
contends that the prosecutor's closing argument exacerbated the
prejudice from her cross-examining the defendant about his
postarrest silence. The prosecutor argued:
"[R]emember when it has been suggested to the police, the first time suggested to the police, there are people in and out of that safe four years later. Never told the police when they're claiming it's stolen, nor at the time of the arrest for the heroin that was found, never said, hey, I'm concerned because I don't know what's in that safe. It's not until they -- four years." (Emphases added.)
Defense counsel objected to the prosecutor's reference to the
defendant's silence "at the time of the arrest," repeating that
phrase several times and telling the judge that it was "a dead
quote" from the prosecutor's closing. At first, defense counsel
asked the judge to "strike" any reference to what the defendant
said at the time of his arrest. After discussion with the judge
15 about whether the instruction would draw the jurors' attention
to the testimony, defense counsel said, "I withdraw my request."
The defendant argues that the prosecutor's references in
closing to "four years" were an improper comment on his silence
not only at the time of his arrest but for the four years
between then and trial.7 At trial, the defendant did not raise
that objection, ask the judge to strike the words "four years,"
or request a curative instruction. After the defendant raised
the issue in the first motion for a new trial, the judge
considered the words "four years" as susceptible to the
interpretation that the defendant had "waited four years to
share" information that others had access to the safe.
The judge concluded that the error in the prosecutor's
closing did not create a substantial risk of a miscarriage of
justice. The judge noted that defense counsel had pointed out
in his closing that the defendant had told police, "that's my
safe," and argued, "He'd be the only person who knew what was in
there. . . . Does that sound like someone who's a drug
boss, . . . or does that sound like someone . . . who is
responding in an innocent manner?" The judge concluded that
because defense counsel had "opened the door to the issue of
7 Police witnesses had testified repeatedly that they were unable to remember details because it had been "four years" since the events occurred.
16 whether [the defendant] was being honest with police," any harm
from the prosecutor's reference to the defendant's postarrest
silence was "minimal at best." We discern no error of law or
abuse of discretion in the judge's ruling. See Jones, 477 Mass.
at 326-327.
b. Reference to Inositol and dietary supplement bottles.
Based on officers' testimony about not seeing the Inositol and
dietary supplement bottles during the July 22 search, the
prosecutor argued in closing that the jury should infer that
when the defendant returned from Florida on July 23, he
"brought . . . a bottle of Inositol, the [dietary supplement]
bottle, and the [thirty-five] grams of heroin." The defendant
contends that the argument was based on "false" testimony and
thus was prosecutorial misconduct. The judge concluded that,
because it was the Commonwealth's theory of the case that the
defendant was operating an ongoing drug operation from the
apartment, it was "not particularly significant whether or not
the two bottles were in the [a]partment before the defendant
returned from Florida." We discern no abuse of discretion in
her assessment of the impact of that argument.
c. References to unsupported facts. Finally, the
defendant argues that the prosecutor injected facts that had no
basis in the evidence when she argued in closing that while
taking the stolen property report from the defendant and his
17 wife on July 23, Officer Yerian did not "see anything" that
evidenced drug distribution. Both Officer Yerian and Sergeant
Beaulieu testified that the apartment was in a "shambles" and it
looked like a "party" had occurred while the defendant was in
Florida. In that context, the inference that the officers did
not see evidence of drug distribution was arguably a fair one.
See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 236 (2016),
quoting Commonwealth v. Ridge, 455 Mass. 307, 330 (2009) (proper
to use "hypothesis" in closing argument). Moreover, the
prosecutor's pointing to the absence of visible evidence of drug
distribution supported the defense theory that the defendant was
unaware that those items were in his apartment, and thus did not
prejudice the defendant.
4. Cumulative errors. Finally, the defendant argues that
even if no one error, standing alone, is sufficient to warrant
the reversal of his convictions, reversal is nonetheless
warranted due to cumulative error and a pattern of deliberate
18 misleading. Given our conclusions on the underlying alleged
errors, there was no cumulative error.
Conclusion. We affirm the judgments, the orders denying
the motions for a new trial, and the order denying the motion
for reconsideration.
So ordered.
By the Court (Massing, Henry & Grant, JJ.8),
Assistant Clerk
Entered: January 25, 2024.
8 The panelists are listed in order of seniority.