Commonwealth v. Jonuel Carattini.

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

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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."

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Q.: "And multiple people have access to that safe."

A.: "Yes."

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."

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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

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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.

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