Commonwealth v. Jing Xin Xiao

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. JING XIN XIAO, Defendant-Appellant. SUPREME COURT NO. 2011-SCC-0007-CRM SUPERIOR COURT NO. 10-0097E OPINION Cite as: 2013 MP 12 Decided October 4, 2013 Eden Schwartz (Argued), Assistant Public Defender, and Daniel Guidotti (On Brief), Assistant Public Defender, Office of the Public Defender, Saipan, MP, for Defendant-Appellant Jing Xin Xiao James B. McAllister, Assistant Attorney General, Office of the Attorney General, Saipan, MP, for Plaintiff-Appellee Commonwealth of the Northern Mariana Islands  BEFORE: ALEXANDRO C. CASTRO, Chief Justice; JOHN A. MANGLONA, Associate Justice; PERRY B. INOS, Associate Justice. CASTRO, C.J.: ¶1 We decide an appeal arising from Defendant-Appellant Jing Xin Xiao’s (“Xiao”) convictions for Trafficking and Possession of a Controlled Substance in violation of 6 CMC § 2141(a) and § 2142(a), respectively. Xiao challenges these convictions, claiming numerous deficiencies before and during trial: (1) prosecutorial misconduct during opening and closing statements; (2) impermissible expert witness testimony; (3) the trial court’s improper denial of his motion requesting an expert witness; (4) the trial court’s improper denial of his motion for continuance; (5) impermissible chains-of-custody admitted into evidence; (6) improper character evidence; and (7) cumulative errors resulting in an unfair trial. For the reasons expressed below, we AFFIRM the defendant’s convictions. I. Facts and Procedural History ¶2 This case commenced when Department of Public Safety (“DPS”) officers arrested the cooperating defendant (“CD”) for Possession and Trafficking of crystal methamphetamine. In exchange for a potential reduction in sentence, CD agreed to work as an informant for DPS. Law enforcement officers set up a controlled buy on April 7, 2011, during which CD attempted to purchase methamphetamines from Xiao, whom CD claimed as his previous drug supplier. ¶3 DPS provided CD with a few hundred dollars in specially-marked bills to conduct the purchase. With these funds, he drove to Xiao’s residence and purchased a small plastic bag containing approximately one gram of a crystalline substance from Xiao. Before, during, and after the transaction, DPS officers conducted visual and audio surveillance. Following the buy, they collected the small plastic bag and its contents. ¶4 Following this sting operation, Detective Sean White obtained a search warrant for Xiao’s residence. During the warrant’s execution, officers observed an Asian male standing outside the home. DPS officers detained and searched the man, discovering over $1,000 in his pocket, including the specially-marked bills. Detective Steven A. Castro then took CD to the residence, where he identified the Asian man, Xiao, as his drug supplier. ¶5 During their search of Xiao’s house and the surrounding premises, DPS officers found scales, plastic straws, and small plastic bags, including one containing a crystalline substance. Detective Dennis Reyes then followed a path around Xiao’s house to a small farming area. He searched the farming area with other DPS officers and unearthed a container holding four small plastic bags. Each small plastic bag contained a crystalline substance. Subsequently, DPS performed field tests on the substances seized, which registered positive for methamphetamine. ¶6 Xiao was charged with one count of Trafficking crystal methamphetamine and one count of Possession of crystal methamphetamine. ¶7 Prior to the trial’s start, Xiao visited CD’s residence. Xiao asked CD how much money the police had given him on the day of his arrest. CD did not answer. Xiao then said he would go to jail for a long time if CD testified against him. Again, CD did not reply and the conversation ended. ¶8 Approximately one month before trial, the Commonwealth provided drug test results for some of the substances recovered. The Guam Police Department Crime Laboratory received this evidence in August 2010, but due to a backlog, it did not process the substances for months. ¶9 When the lab finally tested the substances, it did so in two phases. Parties apparently reviewed the first set of test results approximately one month before trial (although it is unclear from the record when the lab mailed out its first set of test results). Trial Tr. at 132. Four days before trial, the laboratory then mailed out the second batch of test results. Trial Tr. at 525. These results revealed that the largest sample of purported crystal methamphetamine, approximately 170 grams, was actually sucrose. Trial Tr. at 634- 35. Of the total amount seized, the laboratory examiner testified that slightly less than 3.5 grams of the sample was actually crystal methamphetamine. Trial Tr. at 639. The examiner also testified that the lab did not conclusively test all of the samples provided; but it did conclusively test all of the substances found to constitute crystal methamphetamine. Trial Tr. at 652. ¶ 10 After discovering the second set of test results on the Friday prior to trial, Xiao filed a motion requesting a continuance and the appointment of his own expert to conduct tests on the substances. Ostensibly, he filed the motion because the Commonwealth had not provided Xiao with the second set of results until just before the trial (Xiao received the second batch of results on the day of trial, despite having filed this motion the previous Friday). ¶ 11 In another pretrial matter, the Court initially decided to admit CD’s testimony regarding Xiao’s history of drug transactions with him during the previous 18 months. When Xiao filed a motion opposing what effectively was an ex parte decision by the trial court, the trial court took the matter under advisement; the court concluded it would wait to decide the matter until Xiao lodged an objection during CD’s testimony. At trial, Xiao objected during the middle of CD’s testimony, but only after CD explained he had purchased and sold crystal methamphetamines for Xiao for a year and a half prior to the controlled buy. The trial court overruled Xiao’s objection, but issued an instruction limiting the jury’s consideration of this testimony. ¶ 12 In the course of his trial, Xiao offered several other objections. First, he objected when the Commonwealth: (a) asked the jurors to convict him because he was contributing to a methamphetamine epidemic on Saipan in its opening statement; and (b) declared that Xiao had “practically confessed” in its closing argument. Trial Tr. at 784. The prosecutor again alluded to “the confession,” without any qualifier  or the modifier “practically” in its rebuttal – though Xiao did not renew his objection. Id. at 801. Second, Xiao objected when Detective Castro testified that Xiao sold the drugs to CD (during the controlled buy). He lodged this objection because he believed the detective testified not simply on the basis of direct knowledge or observation, but rather primarily due to his training, knowledge, and experience as a detective of eight years. Id. at 743-44. And, third, Xiao objected to the chains-of-custody accompanying Exhibits 6, 7, 13, 14, 15, and 23, which he claimed lacked proper foundation. 1 Each objection was overruled. ¶ 13 At the close of trial, the trial court convicted Xiao of one count of Trafficking of a Controlled Substance and one count of Possession of a Controlled Substance, in violation of 6 CMC § 2141(a) and § 2142(a), respectfully. He was sentenced to imprisonment for five years without the possibility of parole or suspension and ordered to pay a $15,000 fine. ¶ 14 Xiao appealed his convictions to this Court. II. Jurisdiction ¶ 15 We have jurisdiction over Superior Court final judgments and orders, 1 CMC § 3102(a), as well as all criminal actions in the Commonwealth. 1 CMC § 3202. Because Xiao timely appealed his convictions, we have jurisdiction. 1 CMC § 3105; NMI SUP. CT. R. 4(b)(1)(A)(i). III. Standards of Review ¶ 16 Xiao raises numerous issues on appeal. We review his constitutional claims de novo for harmless error when he lodged a contemporaneous objection, see Commonwealth v. Camacho, 2002 MP 6 ¶¶ 19, 43 (reviewing a contemporaneous objection to a constitutional issue for harmless error), and for plain error when no timely objection is registered. NMI R. CRIM. P. 52(b). We, in contrast, review a trial court’s decisions to admit or exclude evidence, as well as to deny or grant motions for continuance and appointment of expert assistance, for abuse of discretion. In re Estate of Malite, 2011 MP 4 ¶ 36 (reviewing the exclusion of evidence); Commonwealth v. Cristobal, 4 NMI 345, 346 (1996) (reviewing a motion for continuance); Commonwealth v. Perez, 2006 MP 24 ¶ 9 (reviewing a motion for appointment of expert assistance). And, when reviewing for possible cumulative errors, we will reverse only when “it is more probable than not that, taken together, the errors materially affected the verdict.” Commonwealth v. Cepeda, 2009 MP 15 ¶ 46 (citing United States v. Fernandez, 388 F.3d 1199, 1256 (9th Cir. 2004)). 1 As best as we can ascertain from the record (which did not contain copies of any exhibits from trial), these exhibits constituted the following: Exhibit 6 and 7 both consisted of small plastic bags containing vials; Exhibit 13 was a Skoal® container; Exhibit 14 and 15 were small plastic bags; and Exhibit 23 was a photograph of money.  IV. Discussion A. Whether Remarks in the Prosecutor’s Opening or Closing Statements Constituted Prosecutorial Misconduct ¶ 17 Xiao claims three remarks made by the Commonwealth during its opening and closing statements amounted to prosecutorial misconduct. ¶ 18 “To constitute a violation of a defendant's right to due process under the Fourteenth Amendment to the United States Constitution, prosecutorial misconduct must be of ‘sufficient significance to result in the denial of the defendant’s right to a fair trial.’” Commonwealth v. Camacho, 2002 MP 6 ¶ 104 (quoting Greer v. Miller, 483 U.S. 756, 765 (1987)). In reviewing this claim, we must determine whether the prosecutor’s conduct was improper; and if so, whether the Defendant suffered prejudice. United States v. Stinson, No. 07-50408, No. 07-50409, 2011 U.S. App. LEXIS 17979, at *33-34 (9th Cir. Aug. 26, 2011) (amended opinion). In making that assessment, it “is not enough that the prosecutor's remarks were undesirable or even universally condemned,” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Darden v. Wainwright, 699 F. 2d 1031, 1036 (11th Cir. 1983)), because “[i]mproper argument does not, per se, violate a defendant’s constitutional rights.” Runningeagle v. Ryan, 686 F.3d 758, 781 (9th Cir. 2012) (quoting Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002)). Instead, the relevant question is whether the prosecutor’s comments “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Parker v. Matthews, 132 S. Ct. 2148, 2153; 183 L. Ed. 2d 32, 39 (2012) (quoting Darden, 477 U.S. at 181). See, e.g., Commonwealth v. Saimon, 3 NMI 365, 382 (1992) (“In performing our review, we are reminded that ‘while [the prosecutor] may strike hard blows, he [or she] is not at liberty to strike foul ones.’”) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). ¶ 19 Three factors guide our analysis in determining whether a prosecutor’s statement(s) injected prejudicial unfairness: (1) the efficacy of any cautionary instruction by the judge, Runningeagle, 686 F.3d at 781; (2) the context’s effect upon the prosecutor’s remarks, United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013); and (3) the strength of the evidence supporting the conviction. Ruiz, 710 F.3d at 1084. ¶ 20 Xiao contends three statements by the Commonwealth crossed the line into unconstitutional prosecutorial misconduct. We address each in turn. Statement One ¶ 21 The prosecutor delivered his opening statement beginning with the following remarks, to which Xiao lodged a timely objection: Ladies and gentlemen[,] Saipan is sick. It is sick with an addiction, with the drug called crystal methamphetamine, I am not telling you this to be dramatic. The legislature has called it an epidemic. An epidemic is defined as a disease – a wide spread disease affecting a given population in a given area. This disease is affecting Saipan, affecting this population and is affecting it right now. It’s causing an increase in [sic] crime rate in  Saipan, taking away opportunities and it’s ruining peoples’ lives. And at the end of this trial you are gonna [sic] have an opportunity to hold one person accountable for his participation in spreading that disease in Saipan. You are going to have an opportunity to make Saipan a little bit healthier. Trial Tr. at 200. ¶ 22 Xiao asserts that the Commonwealth’s emotional appeal represented prosecutorial misconduct, which violated his constitutional right to a fair trial, as articulated in United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984). In particular, Xiao complains of the Commonwealth’s comparison of crystal methamphetamine use to an “epidemic,” as well as the call to do something about this “disease . . . affecting Saipan” by convicting Xiao of crimes related to this drug. Trial Tr. at 200. The Commonwealth contends these statements merely constitute the kind of “emotional language [that] is an acceptable weapon” in an opening or closing statement. Appellee’s Resp. Br. 3 (quoting Saimon, 3 NMI at 389). ¶ 23 In characterizing these remarks as unconstitutional prosecutorial misconduct, Xiao heavily relies on a particular passage in Monaghan. Appellant’s Opening Br. 6-7. In that case, among other things, prosecutors specifically beseeched the jury during the closing statement to publicly condemn the defendant’s behavior by finding him guilty. Monaghan, 741 F.2d at 1441 The Monaghan Court found this statement permissible. Id. Xiao does not direct us to a holding in that case, but rather to dicta he believes proscribes the Commonwealth’s statements at issue here: “A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking.” Id. at 1441. But Xiao omits an important qualification found on the next page of that opinion: a prosecutor may properly “request that the jury condemn an accused for engaging in illegal activity . . . , so long as it is not calculated to excite prejudice or passion.” Monaghan, 741 F.2d at 1442. Thus, Monaghan stands for the unremarkable proposition that a prosecutor may not purposefully urge a jury to convict or condemn a defendant on any basis other than their criminal guilt. United States v. Nobari, 574 F.3d 1065, 1076-77 (9th Cir. 2009) (citing Monaghan, 741 F.2d at 1441). ¶ 24 Xiao also cites to other cases in an apparent effort to analogize to statements that various United States Courts of Appeals have found constitutionally infirm. The trouble with his approach is that it lacks a coherent analytical framework and cites to questionable authority. 2 This is especially true because 2 Xiao heavily relies on United States v. Solivan, 937 F.2d 1146, 1150-55 (6th Cir. 1991), but the United States Court of Appeals for the Sixth Circuit quickly cast doubt upon the Soilvan test in United States v. Carroll, 26 F.3d 1380, 1383 n.5 (6th Cir. 1994), which it explicitly reaffirmed in United States v. Warshak, 631 F.3d 266, 302 (6th Cir. 2010), United States v. Reid, 625 F.3d 977, 982 (6th Cir. 2010), and United States v. Galloway, 316 F.3d 624, 632 (6th Cir. 2003), among others. While we do not endorse or adopt current Sixth Circuit law on this matter — a test the United States Supreme Court recently questioned on habeas review, Parker v. Matthews, 132 S. Ct. 2148, 2155; 183 L. Ed. 2d 32, 41 (2012) — we find Xiao’s citation to Solivan, without any further explanation regarding its precedential value, highly problematic.  different United States Courts of Appeals utilize different factors for prejudice determinations in this context. 3 We are persuaded that the approach utilized by the Court of Appeals for the Ninth Circuit best resolves how to make determinations of prejudice in this context for the following reason. Unlike the cases Xiao cites, this approach most effectively measures the precise consequence(s) an improper statement had on a trial’s fundamental fairness by directing a court’s focus to clearly discernible criteria. If Xiao believes we should adopt a different test, however, he should have explained why. He has offered no reasons for such a proposition. ¶ 25 As a result, we return to Monaghan and Nobari to consider whether the remarks in question were improper. Monaghan and Nobari specifically addressed prosecutorial comments uttered to “‘inflame the juries passions and fears,’ in violation of due process.” Nobari, 574 F.3d at 1076 (quoting United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005)). In Monaghan, those remarks contained: (1) a permissible call to publicly condemn the defendant for his crime; (2) improper references to the moral standards society holds police officers; and (3) an impermissible call to sympathize for the victim. In Nobari, these comments included: (1) an improper suggestion that something terrible may have happened to a “little boy,” at the hands of the defendant, if government agents had not arrested the defendant when they did; and (2) an impermissible admonition to “not let the City of Turlock down.” 574 F.3d at 1077. In other words, while prosecutors possess substantial leeway in opening and closing statements, Monaghan and Nobari recognize an important constitutional limitation: remarks designed to appeal to “‘passions, fears, and vulnerabilities of the jury’” are impermissible. Id. (quoting Weatherspoon, 410 F.3d at 1149). We now consider whether the Commonwealth crossed this line. ¶ 26 The prosecutor, in addition to asking the jury to convict Xiao on the basis of guilt, called upon the jury to “hold [Xiao] accountable for his participation in spreading [a] disease in Saipan.” Trial Tr. at 200. At first glance, the statements Xiao decries appear merely to involve a rhetorical gloss intended to paint a harsh picture of the harm done by those who distribute illegal drugs. But on further examination, the Commonwealth’s implicit charge to jurors that they should clean up the community went well beyond a plain description of the specific harm drug use causes. This is precisely the sort of quasi-jury instruction that Monaghan and Nobari prohibited: an admonition that jurors should convict because it is their duty to 3 For examples of other approaches we find unpersuasive see United States v. Ebron, 683 F.3d 105, 140 (5th Cir. 2012) (“This court generally looks to three factors in deciding whether any misconduct casts serious doubt on the verdict: ‘(1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.’”); Galloway, 316 F.3d at 632 (“There are four factors that we utilize to determine if an improper statement was flagrant: 1) whether the statements tended to mislead the jury and prejudice the defendant; 2) whether the statements were isolated or pervasive; 3) whether the statements were deliberately placed before the jury; and 4) whether the evidence against the accused is otherwise strong.”); and United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992) (considering three factors: “(1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of the defendant's guilt; and (3) the curative actions taken by the trial court”).  protect their communities from drugs, not because the prosecution proved beyond a reasonable doubt that the defendant was guilty. This may be a fine line, but the prosecutor’s emphasis on the nature of this “disease” in the preceding sentences convinces us his remarks misled the jury and crossed the line. A prosecutor may not characterize a juror’s duty to convict as an opportunity to remedy an emotionally- charged, wide-scale social problem. ¶ 27 In considering whether these remarks were harmless error—that is, whether the prosecutor’s comments “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process,’” Parker, 132 S. Ct. at 2153—we must assess the impact of: (1) any remedial instructions by the trial court, Runningeagle, 686 F.3d at 781; (2) the context upon the remarks, Ruiz, 710 F.3d at 1082; and (3) the overall force of the evidence against the defendant. Id. at 1084. ¶ 28 In applying that test, we begin by noting that the trial court did not issue a specific jury instruction regarding these statements. But it did provide general instruction that attorney arguments are not evidence. Ordinarily, a general instruction overcomes prejudice created by slightly egregious opening remarks. See United States v. Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993) (“Since the vouching during opening statement was mild, this general instruction was sufficient to cure the error.”). Second, and related to the first, the context of these remarks helps insulate them from where they would be at their great potency. See Abromson v. American Pac. Corp., 114 F.3d 898 (9th Cir. 1997) (observing that impermissible remarks uttered in an opening statement, if not repeated, generally do not create prejudice). And, finally, the strength of the evidence against Xiao is significant, including: (1) the testimony of a police detective regarding Xiao’s participation in a controlled buy; (2) the positive laboratory test results for crystal methamphetamine found in Xiao’s possession during a police search of his property; and (3) CD’s testimony implicating Xiao as his supplier in numerous (if not hundreds of) previous drug transactions, Trial Tr. at 317-322, which helped prove Xiao acted with the requisite intent. As a result, we do not think Xiao suffered prejudice as a result of these improper remarks. Statement Two ¶ 29 Xiao also contends a statement during the Commonwealth’s closing statement prejudiced his constitutional right to a fair trial. In the middle of the prosecutor’s closing statement, the Commonwealth made a declaration Xiao objected to, which the trial court overruled. This colloquy surrounded the prosecution’s representation of his conversation with CD: Commonwealth: One, oh I’m sorry, two, two times that this defendant practically confessed to [CD] that he committed this crime. Defendant: Objection, your Honor. .... Defendant: Fact not in evidence.  .... The Court: Okay. . . . [Objection] overrule[d]. Trial Tr. at 784-85. ¶ 30 The Commonwealth characterizes this statement as a reasonable extrapolation from the facts, and directs our attention to case law authorizing rhetorical flexibility. See Commonwealth v. Brel, 4 NMI 200, 204 (1994) (“A prosecutor may not go so far as to express his or her personal opinion about a defendant's guilt, but he or she may make any reasonable inference supported by the record.”); Commonwealth v. Saimon, 3 NMI 365, 385 (1992) (noting that a “prosecutor may argue reasonable inferences from the evidence”). ¶ 31 The basic facts underlying the testimony at issue stem from a conversation between CD and Xiao about three weeks prior to trial. Xiao visited CD to ask him the following: (1) not to testify because it would result in serious jail time for Xiao; and (2) how much police money CD had given him on the day police arrested Xiao. Trial Tr. at 346-48. The salient question before us, then, is whether describing that conversation as a “practical[] confess[ion]” constituted prosecutorial conduct depriving Xiao of a fair trial. We think not. ¶ 32 CD testified to two comments uttered by Xiao, which may properly be construed to some small degree as a partial confession. After all, the Commonwealth could reasonably infer that directing another not to testify—or even suggesting or hinting that another not testify—because it could result in penal consequence for them, came close to an actual admission of guilt. The Commonwealth adequately made that distinction without improperly portraying it as an actual or full confession in that statement. Perhaps the prosecutor could have more properly described Xiao’s statements as displaying implications of guilt. Nonetheless, the qualification “practically” has the distinct effect of diluting the power of this statement. Moreover, the prosecutor explained exactly why he described the statements in those terms after the objection was overruled. Trial Tr. at 785. Thus, this statement did not cross the line into prosecutorial misconduct. Statement Three ¶ 33 Xiao next claims, much more plausibly, that the Commonwealth’s statement during their closing rebuttal represents prosecutorial misconduct. During the Commonwealth’s rebuttal, the prosecutor argued the following to the jury: “What you should consider is the 40 pieces of evidence sitting in front of you, of the drugs, of the drug paraphernalia, the audio tape, the confession.” Trial Tr. at 801 (emphasis added). Interestingly, the Commonwealth does not attempt to justify the use of this statement in their brief. Instead, the Commonwealth immediately pivots to the question of whether this statement prejudiced Xiao. The government provides little to no analysis specifically on this comment, including whether Xiao  lodged a timely objection, eliding the difference between saying “the confession,” and “the practical confession. 4 ¶ 34 We need not decide whether a timely objection occurred, because our review indicates that the inclusion of this statement was, at most, harmless error. ¶ 35 A prosecutor may not refer to a confession not in evidence during a closing argument because, at a minimum, such a statement does not represent a reasonable inference from the evidence. See Saimon, 3 NMI at 385 (allowing prosecutors only the flexibility to “argue reasonable inferences from the evidence”). Uttering this type of remark is particularly problematic because it creates the distinct impression that a prosecutor has knowledge of incriminating evidence not presented to the jury. Here, then, it is not difficult to conclude the prosecutor improperly overreached in his characterization of Xiao’s remarks to CD as, “the confession.” Trial Tr. at 801. The prosecutor could well have asked the jury to consider whether Xiao confessed to CD. But he did not. Much as the Commonwealth apparently believes—as the government did not even attempt to defend this statement—we have little trouble identifying this statement as improper. ¶ 36 While we find the prosecutor’s statement crossed the line into impermissible argument, we do not conclude they prejudiced Xiao. Thus the statement does not require a new trial. This conclusion flows from our consideration of the three relevant factors. Runningeagle, 686 F.3d at 781; Ruiz, 710 F.3d at 1082-84. ¶ 37 Under Runningeagle, the first question to consider is the efficacy of any instructions issued by the trial court. 686 F.3d at 781. Here, the general warning by the trial court cannot, in and of itself, cure the harm introduced by a prosecutor’s reference to “the confession.” Because the trial court did not offer any additional statements, this factor weighs in Xiao’s favor. ¶ 38 In considering the context of this remark, Ruiz, 710 F.3d at 1082-84, we observe not simply the immediate surroundings of this phrase, but also the remainder of the trial. In doing so, we conclude that despite its isolation, which would ordinarily heighten the flagrant nature of the comment, the greater context dampened the remark’s effect. After all, while the Commonwealth’s linguistic looseness improperly suggested to the jury that they may not have heard a damaging admission made by Xiao, we find the jury’s acceptance of this proposition unlikely. Here, the remark appeared to allude to a recent, 4 Xiao did not renew his objection regarding the statement referencing a “practical confession” during the prosecutor’s rebuttal remark, “the confession,” at closing argument. This objection may effectively mirror his previous objection during the closing statement, and thus be treated as timely made, NMI R. EVID. 103(a), but we need not decide that issue. That is fortunate, because if we had to address this issue we would have been left without any guidance by either of the parties. We are particularly surprised that the Commonwealth did not press plain error as the proper stand of review. In fact, the government takes the position this entire issue is so utterly unimportant that they need only offer two sentences of conclusory analysis. Appellee’s Resp. Br. 6. Such perfunctory legal writing fails to assist us in reviewing the issue in any meaningful way, which is the purpose of written submissions to the Court. It should be clear why this sort of brief writing is wholly unacceptable.  previous statement regarding how Xiao “practically confessed,” Trial Tr. at 784, the basis of which the prosecutor fully explained. Id. at 485. These circumstances minimize much of the speculative damage Xiao claims. ¶ 39 Further, we are also guided by the overwhelming evidence of Xiao’s guilt, which we discussed above. Ruiz, 710 F.3d at 1084. ¶ 40 Taken together, then, we do not find prejudice because, when viewed in light of context and the overall strength of the evidence, the prosecution’s statement, improper though it may have been, did not “‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process,’” Parker, 132 S. Ct. at 2153 (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). ¶ 41 But while the statement did not materially affect the verdict, the prosecutor knew (or should have known) better than to inject this sort of confusion into jury deliberations. Urging jurors to consider “the confession” when deciding a verdict is completely inappropriate in the absence of evidence. Had the sheer forcefulness of the evidence against Xiao been different in this case, this statement’s effect may well have caused Xiao prejudice. ¶ 42 Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first and foremost. See, e.g., Berger, 295 U.S. at 88. Their “job isn’t just to win, but to win fairly, staying well within the rules.” United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). Constitutional guardrails preserving fair trials are not fair-weather friends, present when advantageous, conveniently absent when not. B. Detective Castro’s Testimony Regarding Whether Xiao Unlawfully Distributed a Controlled Substance ¶ 43 We next consider Xiao’s claim that the trial court abused its discretion by improperly allowing Detective Steven A. Castro (“Detective Castro”) to give his opinion regarding Xiao’s mental state. Under Commonwealth Rule of Evidence 702 (“Rule 702”), a person with “specialized knowledge” qualified by his or her “knowledge, skill, experience, training, or education” may give opinion testimony if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” NMI R. EVID. 702. For those expert witnesses so qualified, the Commonwealth Rules of Evidence prohibit testimony, directly or indirectly, as to whether a defendant possessed a particular mental state in a criminal matter. NMI R. EVID. 704(b). ¶ 44 Xiao argues that the Commonwealth Rules of Evidence regulating expert opinion witness testimony apply here. He specifically contends a short response by Detective Castro constituted improper opinion testimony regarding Xiao’s mental state. We reach a different conclusion. ¶ 45 Xiao is correct that a party may call a police detective to testify in a manner that implicates Rule 702. There are, for example, innumerable trades and practices that employ unique devices, feints, and  codes that may mean nothing to the untrained observer but may speak volumes to a specialist qualified by experience or training. The illegal drug trade certainly fits into that category. ¶ 46 But that is not what happened here. The testimony at issue arose from the following question posed by the Commonwealth, to which Xiao lodged a timely objection: “based on your eight years of training and experience as a detective, uh, do you have an opinion on who sold the drugs on April 7th”? Trial Tr. at 743-44. Detective Castro answered affirmatively. Trial Tr. at 744. The prosecutor proceeded to ask him to identify the seller. Id. Detective Castro responded with two words: “The defendant.” Id. At no time did either party move to qualify Detective Castro as an expert witness pursuant to Rule 702. ¶ 47 His answer neither offered, nor relied upon, “scientific, technical, or other specialized knowledge.” NMI R. EVID. 702. Such testimony was, in fact, a product of Detective Castro’s requisite personal knowledge, see NMI. R. EVID. 602, and fell within the bounds of Commonwealth Rule of Evidence 701, because it was, at most, derived from “particularized knowledge that [Detective Castro had obtained] by virtue of his . . . position” as a police detective tasked with investigating the illegal drug trade in the Commonwealth. FED. R. EVID. 701, advisory committee's notes on 2000 Amendments. 5 ¶ 48 Nonetheless, as we elaborated above, we do not doubt a police detective may give testimony that contains “scientific, technical, or other specialized knowledge.” NMI R. EVID. 702. In such circumstances, the trial court may only allow such testimony after it is subject to the relevant qualification procedure. Then, just as any other expert witness is subject to particularized evidentiary rules regarding their testimony, NMI R. EVID. 702-705, a police detective would also remain subject to these strictures. ¶ 49 Xiao also contends the detective improperly offered expert witness testimony when he testified that Xiao sold the drugs. More specifically, Xiao’s counsel insisted at oral argument that because the term, “sell,” implied some sort of underlying judgment regarding Xiao’s mental state, the detective impermissibly testified regarding Xiao’s mental state. Audio Tr. Oral Arg. 18:51-21:09. But the verb “sell” may well describe an act rather than both an act and a mental state. After all, a person can mistakenly sell a painting from her attic that, unbeknownst to her, is a Picasso. Or, perhaps more relevant to these circumstances, a person can sell a painting that, unbeknownst to him, contains a controlled substance embedded within its frame. Like these examples, the question at issue did not elicit any information related to Detective Castro’s judgment as to whether Xiao intentionally sold drugs, which is Xiao’s complaint. Detective Castro’s answer simply identified the defendant, Xiao. His response covered no more than ground than who committed the actus reus in a transaction. Because Detective Castro was not asked, nor did he answer, whether Xiao purposefully, knowingly, recklessly, or negligently 5 When a rule of this Court is “‘patterned’” after a federal rule, it is appropriate to look to how the federal courts have interpreted that rule for guidance. Sablan v. Elameto, 2013 MP 7 ¶ 17 (Slip Opinion, June 3, 2013) (quoting Ishimatsu v. Royal Crown Ins. Corp., 2010 MP 8 ¶ 60).  participated in a transaction for a controlled substance, his response did not address whether Xiao meant to participate in a transaction involving a controlled substance. Therefore, this testimony did not violate Rule 704(b). C. Xiao’s Motion for a State-Appointed Forensic Expert ¶ 50 The next claim Xiao asserts involves the trial court’s denial of his request for an expert witness to