This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Sandra Martinez, appeals from her conviction of trafficking in heroin. For the reasons that follow, we affirm.
During the summer of 2009, the Drug Enforcement Administration (DEA) made a series of undercover purchases of narcotics in the Northern Worcester Area (particularly in Fitchburg), targeting the ongoing criminal drug trafficking activities of the Latin Kings gang. As agents collected intelligence on one particular gang affiliate, Miguel Torres (also known as Gallo), they also became aware of the defendant, Martinez. Agents discovered that the defendant, who was Torres's upstairs neighbor (at 8 Taft Street, Fitchburg), was supplying him with drugs. On July 29, 2009, the task force used a cooperating witness named Eddie Ortiz (outfitted with a camera that recorded both audio and video), who went into the home of Martinez and recorded himself purchasing nineteen and three-tenths grams of heroin from her. The United States Attorney's Office declined to prosecute Martinez. Instead, they invited the Worcester County district attorney's office to prosecute and the decision was made by that office to proceed. Prior to trial, the motion judge denied the defendant's motion to suppress the audio-visual recordings of the controlled buy.
1. Motion to Suppress Audio-Visual Recordings.
The policies behind the exclusionary rule are not furthered " when evidence properly obtained under Federal law in a federally run investigation, is admitted as evidence in State courts" even though it was obtained in violation of State law. Commonwealth v. Brown, 456 Mass. 708, 713, 925 N.E.2d 845 (2010). In this case, the motion judge found " that this investigation was a Federal investigation from its inception and although at different times the task force was assisted by local and State law enforcement officers, it remained under the supervision and direction of the [F]ederal agency." This finding is supported by the evidence presented at the motion to suppress hearing. We will not disturb it absent clear error. See Commonwealth v. Watson, 455 Mass. 246, 250, 915 N.E.2d 1052 (2009); Commonwealth v. Mitchell, 468 Mass. 417, 421, 11 N.E.3d 86 (2014).
The defendant's reliance on Commonwealth v. Jarabek, 384 Mass. 293, 424 N.E.2d 491 (1981) ( Jarabek ), is misplaced. In Jarabek, the Supreme Judicial Court concluded that the investigation was a " combined enterprise" between State and Federal efforts, and held that in such a case " if the State regulatory scheme imposes a stricter standard, it is by that standard that the validity of official conduct is to be judged for purposes of a motion to suppress under c. 272, § 99 P." Id. at 297. In Jarabek, unlike the present case, the decision to record conversations was made by the district attorney, and the purpose of the investigation was at all times to obtain " evidence to be used in a State, rather than a Federal, prosecution." Id. at 295. " When, as in this case, local police officers provide assistance to an essentially Federal investigation and act under Federal direction and discretion, the strict State standards barring one-party consent recordings do not apply to recordings made by Federal agents." Commonwealth v. Gonzalez, 426 Mass. 313, 317, 688 N.E.2d 455 (1997).
2. Commonwealth's closing argument.
On appeal the defendant makes both preserved and unpreserved claims that the Commonwealth's closing argument violated her Federal and State constitutional rights to a fair trial. Specifically, that the prosecutor impermissibly suggested that the Commonwealth's evidence provided overwhelming evidence of guilt, implied that the defense had an obligation to present evidence, shifted the burden of proof onto the defendant, vouched for the credibility of the Commonwealth's witnesses, misstated evidence, and referred to facts not in the record.
" Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Felder, 455 Mass. 359, 368, 916 N.E.2d 990 (2009). The defense objected twice during the Commonwealth's closing argument. We review these claims for prejudicial error. Commonwealth v. Garcia, 75 Mass.App.Ct. 901, 901, 912 N.E.2d 511 (2009). First, the defendant objected to statements concerning the weight of evidence presented at trial. It is not permissible for a prosecutor to describe the Commonwealth's case as " overwhelming," " uncontested," or " unrebutted" in circumstances in which the defendant is the only one who can contradict the evidence. See Commonwealth v. Buzzell, 53 Mass.App.Ct. 362, 366-369, 759 N.E.2d 344 (2001). Here, while the prosecutor's comments were better left unsaid, because the judge instructed the Commonwealth to clarify its statement and the prosecutor did so in appropriate terms there was no prejudicial error. Compare Garcia, supra.
At the end of the Commonwealth's closing, the defense objected to three additional statements and arguments made by the prosecutor. First, comments made about the defendant's argument that the defendant had a tattoo on her chest as seen as she sat at the defense table during trial, but that could not be seen on the audio-video recording in the apartment. Second, she complained about comments the prosecutor made about the size and quality of the camera which recorded the buy. Lastly, she objected to comments the prosecutor made about " prior dealings" that Ortiz had with the defendant.
The prosecutor's comments about the defendant's tattoo did not infringe on the defendant's right not to testify. Compare Commonwealth v.Hawley, 380 Mass. 70, 88, 401 N.E.2d 827 (1980); Commonwealth v.Teixera, 396 Mass. 746, 752 (1986). The display of the defendant's physical appearance is nontestimonial evidence and does not infringe on the defendant's privilege against self-incrimination. See Commonwealth v.Kater, 388 Mass. 519, 535, 447 N.E.2d 1190 (1983) ( Kater ). In this case, the defense made an argument that, in essence, the defendant was not the woman in the tape because she had a prominent tattoo on her chest which the jurors could easily view in the courtroom, and the woman on the tape had no such tattoo. The judge was correct in finding that, where the defendant had placed in evidence before the jury her own physical characteristics, the prosecutor was entitled to comment upon that evidence. See, e.g., Kater, supra; Commonwealth v.Roberts, 433 Mass. 45, 56, 740 N.E.2d 176 (2000). The prosecutor's comments about the camera do not constitute misstatements of evidence infringing on the defendant's fair trial rights. Compare Commonwealth v.Loguidice, 420 Mass. 453, 456, 650 N.E.2d 1254 (1995). Next, the prosecutor made comments about prior " dealings" between the defendant and Ortiz. While there was no evidence presented that Ortiz had ever purchased narcotics from Martinez, the ...