Opinion
14-P-128
11-19-2014
COMMONWEALTH v. RICHARD GILLIS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Richard Gillis, was convicted of assault and battery. The charge arose from his attack on a fellow inmate at the Massachusetts Treatment Center in Bridgewater. On appeal, the defendant claims the prosecutor made several improper comments in his closing argument. As no objection was made at trial, we review any error only for a substantial risk of a miscarriage of justice, considering each comment within the context of the entire argument, the judge's instructions to the jury, and the evidence presented at trial together with reasonable inferences drawn therefrom. See Commonwealth v. O'Connell, 432 Mass. 657, 659 (2000); Commonwealth v. Myer, 38 Mass. App. Ct. 140, 146 (1995).
The defendant initially pleaded guilty to one charge of assault and battery by means of a dangerous weapon. He later moved to withdraw that plea, and a panel of this court reversed the judge's denial of his motion. Commonwealth v. Gillis, 75 Mass. App. Ct. 1113 (2009). He was then convicted on the lesser included charge of assault and battery.
First, the prosecutor's statement that on the morning of the attack the defendant "lay in wait" and "ambush[ed]" the victim was a fair inference based on the numerous eyewitness accounts of the attack. See Commonwealth v. Smith, 456 Mass. 476, 487 (2010).
Next, the prosecutor's reference to the defendant's prearrest statement was not an improper comment about the defendant's right to remain silent because the defendant did not, in fact, remain silent. Therefore, the concerns elucidated in Commonwealth v. Haas, 373 Mass. 545, 559-560 (1977), and Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982), are not implicated. Moreover, a prosecutor's "[c]omment on a defendant's silence or failure to deny accusations against him under circumstances where the defendant might be expected to speak is permissible, . . . and does not interfere with the defendant's exercise of his right to remain silent." Commonwealth v. Teixera, 396 Mass. 746, 752 (1986). Such was the case here, where the defendant did not deny he attacked the other inmate when asked, but instead told the corrections officer that "it's about disrespect."
The prosecutor stated: "[Corrections] Officer Dankievitch asked the morning of the attack, after the attack, asked the defendant what happened? The defendant didn't say, I was attacked. He didn't say we were both fighting. He said, it's about disrespect."
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Lastly, the defendant challenges the prosecutor's comment that "[t]his is about the number of men who are held in Bridgewater, Massachusetts, a town away. . . . It's about the law. It's about holding the defendant accountable." The defendant argues that the prosecutor improperly urged the jurors to consider the consequences of their verdict. It is difficult to understand what the prosecutor's statement was intended to mean or to convey to the jury. However, even if we were to assume that the comments crossed the line, they did not create a substantial risk of a miscarriage of justice. The Commonwealth's case was strong, and the judge instructed the jury that closing arguments are not evidence and that the jurors must consider the evidence impartially without bias, prejudice, or sympathy.
Judgment affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 19, 2014.