Aftеr a six-day jury trial on an indictment for murder in the first degree, the defendant was convicted of murder in the second degree on March 3, 2003. On this direct appeal,
1. Assistance of counsel. The Commonwealth argues that the defendant’s clаims of ineffective assistance must fail because the appellate record is insufficient for review of these claims. More specifically, the Commonwealth argues that because the defendant has not pursuеd a motion for new trial, he has not presented by affidavit or otherwise evidence of trial counsel’s reasoning, and without such evidence, the appellate record contains too many gaps for this court’s reviеw.
The requirements for proving ineffective assistance of counsel need not be repeated here. See Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 551 (2006). So it is with the principle that the preferred method for raising a claim of ineffective assistаnce is through a motion for a new trial. Commonwealth v. Zinser,
2. Closing argument. As to closing argument, the defendant claims that the prosecutor improperly referred to facts nоt in evidence, that he attempted to inflame and prejudice the jury, and that he urged the jury to consider extraneous factors.
a. Facts not in evidence. The fifteen year old victim died as the result of a stab wound. The victim’s friend, McDuffie, was walking with the victim when a man (whose face McDuffie saw, but had otherwise never seen before) with a “nappy afro” and a red shirt and jeans, pulled a knife, took a single step forward, and stabbed the victim in the chest. McDuffie saw the assailant for а few seconds in light, which McDuffie described as bright. He identified the defendant, in court, as the assailant.
Boston police Officer Carl Shorter, working an early morning shift on August 5, 2000, heard a radio transmission and after about two minutes arrived at a building аt 267 Center Street in
Officer Shorter described the lighting up and down Center Street as “well-lit, pretty much, with street lights and lights that come from the building [267 Center Street] as well.” He described the lighting conditions as providing clear visibility, with lights on Centеr Street on both sides.
On cross-examination, the officer was asked: “[W]ould [it] be fair to say that you didn’t see [the defendant] running on August the 5th of 2000, right?” The witness answered: “I did not.” The witness confirmed that his report contained, by way of description of thе individuals, simply “[j]ust two black males.” There was nothing about a male having braids, or a black male with an “afro.”
On the basis of Officer Shorter’s testimony, the defendant’s attorney argued during closing:
“And Officer Shorter testified that Jovan was not one оf the two men that he saw standing there. According to Officer Shorter, Jovan was not dressed in a red shirt, and Jo-van was not the man dressed in a grey and black shirt. That should end our discussion here.”
On the basis of the same testimony, the prosecutor argued in closing (over the defendant’s objection):
“Officer Shorter didn’t come in here and tell you that it wasn’t [the defendant] that ran into the building. He said he didn’t know who ran into the building. . . . Did you hear Officer Shorter tell you, during this trial, that the defendant specifically was not the one that ran into the building?”
The defendant asserts that Officer Shorter’s actual testimony
b. Other improprieties in the prosecutor’s closing. The defendant makes other complaints that were not preserved by objection, during or after the closing argument. We read these complaints as basically two: (a) improper arguments to inflame the passions of the jury or, perhaps more accurately, asking the jury to decide the case on the basis of emotion and extraneous factors rather than exclusively on the evidence; and (b) the prosecutor’s improper alignment of himself with the jurors. We agree that portions of the argument were improper.
There are limits to be observed by рrosecutors in closing arguments:.
“Established rules govern the permissible boundaries of a prosecutor’s closing argument. ‘[A] prosecutor should not refer to the defendant’s failure to testify, misstate the evidence or refer to facts not in evidence, inteqect personal belief in the defendant’s guilt, play on racial, ethnic, or religious prejudice or on the jury’s sympathy or emotions 9 99
Commonwealth v. Delacruz,
The prosecutor urged the jury to take the defendant’s trial counsel “to task” because of the way he argued in his closing. Criticisms of the defendant’s attorney, including the prosecutor’s urging of the jurors to be angry with the attorney, were improper and, among other things, impugned two basic constitutional
With respect to his claim that the prosecutor imрroperly aligned himself with the jury and appealed to their sympathies and emotions, the defendant specifies the statement “[w]e need, as people, to get the right person. We need that to close.” Upon our own review of the argument several other examples of “alignment” occurred, including: “Why don’t we use that evidence? Why do we use conjecture and surmise. . . . Why don’t we just use the evidence at trial? . . . [W]e all know he picked out the defendant. . . . Well, we know . . . that they told a couple of different versions of what happened. ... I think we know that for a fact, based on cross-examination. . . . So we know [about other witnesses]. . . . But there is something we can take from their testimony. . . . I’m going to go you one further. How do we know there wasn’t something else? We know it was the defendant because McDuffie made an identification. . . . But if there was any mistake, I didn’t see it. We know it was the defendant. How do we know it wasn’t somebody else?”
We are troubled by the prosecutor’s repeated use of the pronoun “we,” which, when considered in light of the substance of some of those statements and phrases, conveyed, at least
“Having determined that [portions of] the prosecutor’s argument [were] improper, we evaluate whether the defendant was prejudiced thereby, cоnsidering the remarks in the context of the entire argument, the trial testimony, and the judge’s instructions to the jury.” Commonwealth v. Beaudry,
We conclude that the errors in the prosecutor’s closing argument, standing alone, did not create a substantial risk of a miscarriage of justice, which is the standard we apply when, as here, the errors are unpreserved. Commonwealth v. Crouse,
We note, however, that “the cumulative effect of all the errors must be ‘considered in the context of the arguments and the case as a whole.’ ” Commonwealth v. Guy,
Although they were unnecessary and regrettable, the errors in
Judgment affirmed.
Notes
A motion for new trial with memorandum and affidavits was filed, and then withdrawn by leave of court on the defendant’s motion.
Thе prosecutor, in an additional attack on the lawyer, rather than the evidence, impermissibly inserted himself into the jurors’ deliberative process with the statement: “I saw some of your faces during the closing arguments when [the defеndant’s attorney] mentioned some of the things that he claimed was in evidence. The looks on your faces told me, at the least, that you didn’t agree.”
In further proceedings with a proper motion for new trial, and in the event that ineffective assistance is established, the motion judge may consider the error in closing argument in evaluating over-all prejudice to the defendant.