Opinion
No. 15–P–865.
11-18-2016
COMMONWEALTH v. Jaumell CLAYTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jaumell Clayton, appeals his convictions of possession of a firearm without a license, in violation of G.L. c. 269, § 10(a), and possession of a loaded firearm, in violation of G.L. c. 269, § 10(h). The defendant's challenges on appeal all stem from the prosecutor's closing argument. He contends that there were several errors which, in the aggregate, prejudiced him and require a new trial. The defendant also argues that the prosecutor's alleged misstatement of the presumption of innocence caused a substantial risk of a miscarriage of justice to him. We disagree.
The defendant also appeals his conviction of operating a motor vehicle with a suspended license, in violation of G.L. c. 90, § 23.
Background. On September 19, 2013, Officer Anthony Poulos was patrolling the Mattapan and Dorchester neighborhoods of the city of Boston. Around 3:10 A.M., he observed a black Kia Sporta drive past him on Norfolk Street. He noticed that the Kia had a flashing turn signal, but did not turn. Officer Poulos then decided to pull the Kia over based on the turn signal and his belief that the driver was speeding. When Officer Poulos turned on his lights and siren, the Kia turned left and stopped on Corbet Street.
Officer Poulos had completed the Boston Police Academy only three months prior to this incident.
As Officer Poulos got out of his cruiser, two passengers exited the back seat of the Kia and began to walk away. Disregarding Officer Poulos's instruction to return to the vehicle, one passenger walked toward Norfolk Street while the other walked, in the opposite direction, down Corbet Street. As Officer Poulos proceeded toward the Kia, the driver, later identified as the defendant, and the front seat passenger began to get out of the car. After both the defendant and the front seat passenger ignored his order to stay in the vehicle, Officer Poulos decided to wait for back up.
Another officer arrived at the scene and proceeded to look for the two back seat passengers. At this time, the defendant began to run up Corbet Street. As Officer Poulos pursued him, he observed a gun fall on the ground from the defendant's person. Officer Poulos retrieved the handgun and radioed dispatch while proceeding to chase the defendant. The defendant was arrested as a result of an organized search.
Officer Poulos's pursuit of the defendant continued until Sergeant Thomas Brooks, who had received Officer Poulos's dispatch, radioed Officer Poulos and told him to stop and return to Corbet Street, where the other officers had arrived.
At the police station, the defendant was interviewed by two detectives. He told the detectives that earlier that night he had ridden in a white Cadillac, accompanied by some other people, to take a friend home. He denied that he was driving the car and stated that he did not know how to drive. The defendant, however, admitted that he previously possessed a valid driver's license. The defendant also stated that he had no recollection of his interaction with Officer Poulos, attributing his lack of memory to intoxication.
Detective Martin Lydon analyzed the firearm obtained at the scene and found that the handgun was operable and contained ten rounds of ammunition. During trial, the defendant admitted that he was the driver of the Kia, but denied possession of the handgun. He also testified that he took flight when Officer Poulos pulled him over because he knew his license was suspended.
No fingerprints were found on the gun.
Discussion. The defendant makes several challenges to the appropriateness of the prosecutor's statements during closing argument. "[W]e examine the [prosecutor's] remarks in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005) (citation and quotations omitted).
a. Prosecutor's alleged prejudicial and inflammatory statements . The defendant preserved the following alleged errors through objection at trial. Therefore, we review the prosecutor's statements for prejudicial error. Commonwealth v. Kater, 432 Mass. 404, 422–423 (2000)(Kater). We determine the defendant's claims of error concerning the prosecutor's closing argument by considering whether (1) the defendant's objection was seasonable; "(2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error ... possibly made a difference in the jury's conclusions." Ibid., citing Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987)(Kozec). In cases where the determination whether the prosecutor has crossed the "line between fair and improper argument" is close, we recognize "that closing argument is identified as argument, the jury understands that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument." Commonwealth v. Lodge, 431 Mass. 461, 471 (2000), quoting from Kozec, supra at 517.
1. Prosecutor's alleged improper appeal to the jury. The defendant first contends that, during closing argument, the prosecutor improperly appealed to the jury's sense of duty and justice by urging the jurors to find "the only just verdict." However, a prosecutor may urge the jury to "do [their] duty as jurors to return a just verdict." Commonwealth v. Lyons, 426 Mass. 466, 471–472 (1998). Here, where the prosecutor directed the jurors to use their common sense, determine the facts, and return a just verdict, the comments were not improper. Compare Commonwealth v. Carriere, 470 Mass. 1, 20 (2014) ("The prosecutor's statement regarding the jury's duty to determine what happened, and to seek the truth, were not improper"), with Commonwealth v. Torres, 437 Mass. 460, 464–465 (2002) (improper to instruct the jury to "answer the call for justice and hold [the defendant] accountable for what he did").
The prosecutor stated, "But when you go into that jury room, if you think hard about this case, if you're determined to get the right result, and you simply use your common sense, the facts are clear. And the only just verdict that you're going to come to is guilty."
Secondly, the defendant argues that the prosecutor made an improper statement of personal opinion as to the defendant's state of guilt. A prosecutor should not "interject personal belief in the defendant's guilt." Kozec, supra at 516–517. Despite the defendant's contentions, the prosecutor did not merely state that "[the defendant] is guilty." Rather he discussed, anecdotally, types of actions that may constitute the legal definition of possession and concluded by stating that in application of these principles "that's exactly why Jaumell Clayton is guilty." See Commonwealth v. Dodgson, 80 Mass.App.Ct. 307, 313–314 (2011) (prosecutor did not offer personal opinion by arguing "the defendant is guilty"). Furthermore, we recognize that jurors understand that closing argument is an argument and, here, the judge's instruction to the jury informed them that closing argument is not evidence. See Commonwealth v. Mazariego, 747 Mass. 42, 58 (2016), quoting from Kozec, supra (stating we credit jurors with a "certain measure of ... sophistication in sorting out excessive claims").
The defendant also argues that the prosecutor improperly appealed to the jury's emotions by discussing "gun control," stating that the subject gun "ha [d] the ability to kill," and repeatedly referenced Officer Poulos's presence in the courtroom. "[W]e have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Stote, 433 Mass. 19, 28 (2000), quoting from Kozec, supra. Here, the prosecutor mentioned "gun control" in a neutral context by highlighting to the jury that "this case is about a possession of a loaded firearm ... whether you're for gun control, whether you're against gun control, or whether you're neutral on the issue of gun control." Additionally, the prosecutor's statement that the handgun allegedly possessed by the defendant "ha[d] the ability to kill" was not improper as it was supported by evidence presented at trial and could have been inferred by the jury's common sense. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 555–556 (2011)(Siny Van Tran), quoting from Commonwealth v. Oliveira, 431 Mass. 609, 613 (2000) ("The [prosecutor's] statement had support in evidence, if inferably so, and more importantly ‘was grounded in common sense, not expertise’ "). See also Commonwealth v. Silva, 455 Mass. 503, 515 (2009) (prosecutor's description of gun as "canon" was "excusable hyperbole").
Detective Lydon tested the gun and found it to be an operable firearm containing rounds of ammunition.
Further, even assuming, as the defendant alleges, that the prosecutor's references to Officer Poulos's presence in the courtroom was improper, this statement does not constitute reversible error because it was cured by the judge's standard instruction that the jury must "not be swayed by prejudice or sympathy." See Commonwealth v. Hoffer, 375 Mass. 369, 379 (1978) ; Commonwealth v. Vuthy Seng, 436 Mass. 537, 556 (2002).
2. Prosecutor's alleged attack on defense counsel's cross-examination. The defendant argues that the prosecutor "impugned the ‘essence of cross-examination’ by attacking the defense counsel's challenge to" Officer Poulos's credibility. The prosecutor may not "suggest to the jury that it was impermissible for defense counsel to question the veracity of the police officers ... [as][t]hat is the essence of cross-examination." Commonwealth v. Tu Trinh, 458 Mass. 776, 788–789 (2011)(Tu Trinh), quoting from Commonwealth v. Grandison, 433 Mass. 135, 143 (2001). However, here, the prosecutor was not suggesting that the defense counsel's strategy to challenge Officer Poulos's truthfulness was improper. To the contrary, the prosecutor challenged the defendant's veracity as a witness and permissibly suggested that the jury compare Officer Poulos's honesty, and lack of motive to lie, with the defendant's inconsistent statements before trial and during trial. See Siny Van Tran, supra at 555 ("Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed"); see also Commonwealth v. Lugo, 89 Mass.App.Ct. 229, 235 (2016) ( "[P]rosecutor is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case").
The prosecutor stated:
"And defense counsel came up here, and he made it a point of his closing argument to insult Officer Poulos, and to attack his credibility, and say that he ... got up on the stand, under oath, and basically lied to you.... Do you really believe that Officer Poulos, who is sitting here in the courtroom.... Or do you believe Jaumell Clayton?
"Jaumell Clayton lies when he feels like he needs to.... He's trying to pull the wool over your eyes, trying to pull the wool over everyone in this courtroom's eyes, trying to get you to feel bad for him, and to say, ‘hey, you know, I'm admitting part of it, so give me some credibility, and let me go on the other part.’ I don't think that's fair. I don't think that's fair to you; and I don't think that's fair to Officer Poulos; and I don't think that's fair to all the other members of the Boston [p]olice [d]epartment who are involved in this case."
The judge's general instruction also stated, "You should give the testimony of each witness whatever degree of importance that you judge it is fairly entitled to receive. You are the sole judges of the credibility of the witnesses."
b. Prosecutor's alleged burden shifting. The defendant argues that the prosecutor misstated the presumption of innocence and shifted the burden of proof to the defendant by stating that "[i]t's not an easy job for the jury to determine an individual human being's guilt or innocence." Since the defendant did not object to this statement at trial, our review is first, whether there was an error, and next, if in fact there was an error, whether the prosecutor's error created a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011).
"As a general rule, a ‘prosecutor ... cannot make statements that shift the burden of proof from the Commonwealth to the defendant.’ " Commonwealthi v. Johnson, 463 Mass. 95, 112 (2012)(Johnson), quoting from Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). Yet, this is not a case where the prosecution is signaling to the jury that the defendant has an affirmative duty to bring forth evidence of his innocence, thereby lessening the Commonwealth's burden to prove every element of a crime. See Tu Trinh, supra at 788. Here, the prosecutor merely commented on the level of difficulty it may be for the jury "to determine an individual human being's guilt or innocence." Furthermore, the trial judge mitigated any potential prejudice created by the prosecutor's statement through his jury instructions. See Johnson, supra at 114 (judge's instructions "surely mitigated any suggestion of burden shifting that may have arisen").
Despite having reached this conclusion, we observe that the prosecutor's conduct pushed the limit of what is acceptable nonprejudicial argument and professional advocacy. There was no reason, for example, to point out to the jury that Officer Poulos was present in the courtroom as an observer, or to make extraneous observations on the subject of gun control. These remarks provided material for this appeal. Also, while we understand why the judge did not give a curative instruction when requested, the opportunity existed to emphasize the otherwise acceptable jury instructions in the areas that a curative instruction had been requested. Jury instructions are a powerful medium to mitigate potential prejudice from prosecutorial conduct.
Judgments affirmed.