Commonwealth v. PullumCommonwealth v. Pullum
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In certain pivotal respects, this case stands in counterpoint to Commonwealth v. Young, ante 452 (1986). Here the prosecutor’s closing argument asked the jury to draw inferences from the defendant’s deportment at trial which the record does not justify. The prosecutor’s comment also underlined the defendant’s failure to testify. We think it is necessary to reverse the conviction.
McCarthy was the only identifying witness at a trial in which the sole contested issue was the identity of the burglar. She had made an initial identification from an array of photographs and a further identification from a lineup. At the time of her encounter with the intruder, McCarthy noticed that he was missing front teeth.
So that the jury might see what the defendant looked like when he spoke (he chose not to testify), the judge instructed the defendant to stand before the jury and speak. He said from one position: “Good morning, Mr. Foreman. How [sic] you doing?” From another position (to which the judge had directed him), he said: “Today, if possible.”
During final argument, the prosecutor said:
“[I]f you looked at him, you noticed he did have — I submit — the appearance of having some teeth missing. That’s an important distinguishing feature. And you know it’s a feature that Ms. McCarthy has never had an opportunity to observe, other than that night. And it was intentional, I submit, if you watched the defendant yesterday, when she was on the stand. He never opened his mouth so she could say: T see it now. I never saw it before.’ And there was a reason for that, because although theCommonwealth had three witnesses testify, I submit to you that in a real way, throughout the course of the case, that this defendant has testified — not with words, but with actions.
“And sometimes we have that saying, actions speak louder than words. And I submit to you the defendant’s actions, during the course of this whole proceeding, have spoken pretty loudly as to his guilt or innocence. Trying to change his appearance in Roxbury court, 1 refusing to smile.”
There was no objection to the closing argument, and we are confined to considering the defendant’s arguments on appeal on the basis of the “substantial risk of a miscarriage of justice” standard. Commonwealth v. Nordstrom, 364 Mass. 310, 313-316 (1973). Commonwealth v. Valliere, 366 Mass. 479, 494 (1974). Commonwealth v. Clary, 388 Mass. 583, 594 (1983). Commonwealth v. Bannister, 15 Mass. App. Ct. 71, 80 (1983).
We are unimpressed by the defense argument that the prosecutor’s remarks constituted a pointed comment on the defendant’s failure to produce evidence at trial. There is, of course, no obligation upon the defendant to do so. Commonwealth v. Borodine, 371 Mass. 1, 9 (1976), cert, denied, 429 U.S. 1049 (1977). Commonwealth v. Bannister, 15 Mass. App. Ct. at 79-80. Imputing that meaning to the prosecutor’s language, however, is imaginative to the point of distortion.
There is a good deal more force to the criticism that the prosecutor’s argument was a comment on the defendant’s failure to testify. The prosecutor cleverly juxtaposed in sequence that “the Commonwealth had three witnesses testify” with the statement: “I submit to you that in a real way, throughout the course of the case, that this defendant has testified — not with words, but with actions.” That remark improperly called attention to the defendant’s not having testified in his defense and
More egregious was the attribution of consciousness of guilt to the defendant at trial by reason of his not displaying his teeth or refusing to smile. He was not called upon to bare his teeth or to smile broadly. That he should not have done so spontaneously ought not to have been described as remarkable. For the defendant, there was little to smile about.
Within limits we have discussed in
Commonwealth v. Young, supra
at 454, it is permissible to comment on courtroom demeanor, particularly if that demeanor is in some aspect noteworthy, as the squirms, smirks and laughs of the defendant in
Commonwealth v. Smith,
387 Mass, at 907, or the making of faces at the jury, as in
Commonwealth v. Burston,
11 Mass. App. Ct. 1036 (1981). Suggesting that normal courtroom behavior betrays consciousness of guilt is improper.
Commonwealth v. Valliere,
366 Mass,
at 494. Commonwealth v. Young, supra
at 455. That is what the prosecutor pointedly did in this case when he argued that the jury should infer concealment from the failure of the defendant to open his mouth or to smile. The defendant did what was asked of him when he addressed the jury. No phrase more likely to cause him to open his mouth (e.g., “this wide, wide world”) was suggested, nor was he asked simply to open his mouth. The record does disclose colloquy among the judge and counsel about whether the defendant should have been asked to smile, a proposal which the trial judge rejected because there was no evidence that the burglar had smiled at McCarthy during the confrontation; the judge wanted the jury to see as close to the same thing as the
The jury, in questions put to the judge during deliberations, manifested concern about the missing teeth issue and the point at which observation of what peculiarity had entered the case. In a case where identification was the only issue and identification depended upon a single witness, we think there is reason to apprehend that the improper argument of the prosecution carried with it a substantial risk of a miscarriage of justice. Compare Commonwealth v. Clary, 388 Mass, at 594. Cf. Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 8-9 (1980). It becomes necessary to reverse the judgment.
Should the question recur at retrial, we comment on the last point urged by the defendant on appeal, that a profile photograph of the defendant was wrongly admitted in evidence. McCarthy, the Commonwealth’s principal witness, it will be recalled, had identified “mugshots” of the defendant from an array, and those photographs were received in evidence, over the objection of defense counsel as to one of them. The pictures were of the usual full face and profile sort. Defense counsel conceded the full face picture. Her objection to the profile picture was that the two, taken together, fixed a familiar “wanted” impression, and the jurors would not fail to speculate that the defendant had previously made it into the police files. This was not fair, the defense urges, because there was no evidence that McCarthy had ever seen the defendant in profile.
We think this cuts the matter too fine and conclude there was no error in admitting both photographs. The judge did what he could to sanitize the pictures. He cut them (or had
Although there was no evidence which tended directly to prove that McCarthy had seen the defendant in profile, the interview manifestly had not been a static one. We are unprepared to say that the profile feature might not have helped the witness, and we conclude that admission of the two pictures was a proper exercise of the trial judge’s discretion. Commonwealth v. Blaney, 387 Mass. 628, 634-640 (1982). 2
Judgment reversed.
Verdict set aside.
Notes
This referred to McCarthy’s testimony that the defendant did not look the same in the lineup — in that his head was shaved and his face was clean shaven — as when she had seen him before.
Had the evidence affirmatively established that the identifying witness had only seen a frontal view, the profile view ought to have been excluded. See Commonwealth v. Blaney, 387 Mass, at 638 n.9.