Opinion
No. 11–P–1780.
2012-10-2
COMMONWEALTH v. Courtney O. BROWN.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Courtney Brown, was convicted by a jury of the Dorchester division of the Boston Municipal Court Department of intimidating a witness (G.L. c. 268, § 13B).
On appeal, he contends that the prosecutor made improper statements in his closing argument and that the judge improperly encouraged the jury to arrive at a quick verdict.
The defendant was acquitted of two charges of threatening to commit a crime (G.L. c. 275, § 2).
1. Prosecutor's closing argument. The defendant argues that portions of the prosecutor's closing argument were improper. Trial counsel did not object to any parts of the prosecutor's closing argument that he now claims were improper; therefore, we review the challenged statements only to determine whether there was error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Smith, 460 Mass. 385, 398 (2011).
The Commonwealth's witness Ashley Bowman testified that while she was at a beauty salon owned by Donna Graham, the defendant asked her to leave the salon and, once outside, informed Bowman that Bowman's mother should drop criminal charges she had filed against the defendant “or else.” Graham testified at trial that she never saw Bowman and the defendant leave the salon together. In addition, she testified that the defendant left the salon prior to the time that Bowman's hair treatment was completed. The prosecutor argued that Graham's memory of the events on the day in question was flawed, essentially because the salon was busy with clients and because Graham made equivocal statements on the stand about her memory of the events. A prosecutor is entitled to argue “forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.” Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Remarks made during closing arguments are considered on appeal in the context of the entire argument, in light of the judge's instructions to the jury, and in view of the evidence presented at trial. Commonwealth v. Coren, 437 Mass. 723, 730–731 (2002). There was no error, much less a substantial risk of a miscarriage of justice.
We also find no merit to the defendant's contention that the prosecutor's use of rhetorical questions in his closing argument had the effect of shifting the burden of proof to the defendant.
See Commonwealth v. Habarek, 402 Mass. 105, 111 (1988) (improper for prosecutor to ask rhetorical questions that “could be perceived by the jury as shifting the Commonwealth's burden of proof to the defendant”). Here, the prosecutor properly used the questions to argue to the jury that the Commonwealth's witnesses were credible. See Commonwealth v. Freeman, 430 Mass. 111, 118–119 (1999).
The prosecutor asked three rhetorical questions: “Is it reasonable to believe that [the victim] is making the whole thing up on February 1st, 2010?”; “Is it reasonable to believe that [Bowman] would make that up, three-and-a-half months later?”; and “Why would [Graham] take note of when [Bowman] actually walks out the door?”
2. Judge's alleged coercive “instruction.” At approximately 3:45 P. M., following his instructions to the jury, the judge made the following statement: “You have as much time as you need to deliberate on this case. If it's 4:30 [ P.M.] and you have not reached a verdict by that time, what we will do is, and you have as much time as I said, we'll just bring you back tomorrow at 9 o'clock and begin the deliberations anew.” The defendant argues that the judge thereby improperly invited a compromise verdict by introducing an artificial time standard, thus encouraging the jury to arrive at a quick verdict. We disagree. Those statements to the jury “were simply part of the common, everyday administration of the court room.” Commonwealth v. Brazie, 66 Mass.App.Ct. 315, 324 n. 6 (2006).
Judgment affirmed.