423 Mass. 831 | Mass. | 1996
We granted the Commonwealth’s application for further appellate review, following an Appeals Court opinion holding that the prosecutor’s closing argument was improper and that the judge’s jury instructions did not neutralize the prosecutor’s prejudicial argument. See Commonwealth v. Meuse, 38 Mass. App. Ct. 772 (1995).
1. In its argument to this court concerning further appellate review, the Commonwealth does not defend the propriety of the prosecutor’s obviously improper vouching for the truthfulness of Schneider’s testimony. It argues, however, that the judge cured the prosecutor’s improprieties by his instructions to the jury. We agree with the Appeals Court that, because of the prosecutor’s argument, the judge’s instructions could have been curative only if he specifically instructed the jury that the government did not and could not know whether Schneider was telling the truth. Id. at 775. The judge’s instruction that the prosecutor’s remark (about the use of the police to determine Schneider’s truthfulness) was none of the jury’s business and should be disregarded (id.), failed to neutralize the prosecutor’s error. The jury should have been told additionally, in some form of words, that the prosecutor’s argument was wrong.
When a prosecution witness testifies pursuant to a plea agreement containing a promise to tell the truth, and the jury are aware of the promise, the judge should warn the jury that the government does not know whether the witness is telling the truth. See Commonwealth v. Ciampa, supra at 264. Although a failure to instruct, standing alone, would not be reversible error (cf. Commonwealth v. Grenier, 415 Mass. 680, 687 [1993]), if the prosecutor has vouched for that witness’s credibility, such a failure to instruct is reversible error. The prosecutor’s comment was not a permissible response to defense counsel’s assertion that the prosecutor had no specific
2. The Appeals Court did not discuss appellate issues that are likely to arise at a retrial.
The defendants argue that Schneider should not have been permitted to testify because his plea agreement required him, as a condition of its enforcement, “to take whatever action is deemed necessary and appropriate by the Commonwealth to produce a prosecutable case against” the defendants. The claim is that Schneider was obligated to give testimony that would result in convictions. We have indicated that a plea agreement made contingent on obtaining a conviction, as a result of the witness’s testimony, would be too great an inducement to the witness and would not meet the test of fundamental fairness. Commonwealth v. Ciampa, 406 Mass. 257, 261-262 n.5 (1989). A “prosecutable case,” however, does not mean a conviction. See United States v. Moody, 778 F.2d 1380, 1385 (9th Cir. 1985), modified on other grounds, 791 F.2d 707 (9th Cir. 1986). Although those words are better left out of a plea agreement (see id.), they do not alone require that testimony pursuant to a plea agreement be excluded.
If the prosecutor wants to have the white plastic hockey mask identified as similar to one worn during the robbery, the jury should be made aware that the mask is used only for illustrative purposes and has no direct connection with the case. Other issues argued are insubstantial or not likely to arise at the new trial, or both.
Judgments reversed.
Verdicts set aside.
