Opinion
No. 11–P–1519.
2013-01-10
COMMONWEALTH v. Darnell McCARTER.
By the Court (GRASSO, MEADE & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial, a jury found the defendant guilty of the following: (1) one count of trafficking in cocaine with a net weight of 100 grams or more, but less than 200 grams; (2) one count of trafficking in cocaine with a net weight of twenty-eight grams or more, but less than 100 grams; (3) three counts of trafficking in cocaine with a net weight of fourteen grams or more, but less than twenty-eight grams; and (4) four counts of distribution of cocaine on four separate dates. On appeal, the defendant claims the prosecutor's unobjected-to closing argument created a substantial risk of a miscarriage of justice. We affirm.
The defendant raises two separate arguments for the first time on appeal regarding the prosecutor's closing argument. First, the defendant claims the prosecutor mischaracterized evidence in order to discredit the defendant's entrapment defense. Second, the defendant argues the prosecutor improperly utilized rhetorical questions to shift the burden of proof to the defendant. We disagree with both assertions. Because the defendant's trial counsel raised no objection to the prosecutor's closing, we review this claim for error and a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 141–142 (2001). “A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence .” Commonwealth v. Semedo, 456 Mass. 1, 12 (2010), quoting from Commonwealth v. Pearce, 427 Mass. 642, 646 (1998).
Although the defendant does not point to specific statements that he believes were made in error, we do not consider any of the prosecutor's statements improper in light of the evidence presented in this case. The defendant claims the prosecutor's statements “cut unfairly” against the evidence she presented. However, this argument fails to recognize the prosecutor's duty is to marshal evidence in favor of conviction. In response to the defendant's entrapment defense, the prosecutor made specific references to facts entered in evidence to discredit the defendant's argument and instead establish the defendant's predisposition to commit the crime charged. See Commonwealth v. Doyle, 67 Mass.App.Ct. 846, 850–855 (2006) (discussing predisposition as prong of entrapment doctrine). The prosecutor's argument that the defendant should not be believed when she claimed entrapment was based upon fair inferences from the evidence, which the prosecutor is entitled to advance during closing arguments. See Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992). The remarks “could reasonably be viewed by the jury as fairly commenting on the ... implausibility ... of the defendant's claim” of entrapment, Commonwealth v. Correia, 65 Mass.App.Ct. 27, 32 (2005), given the multitude of evidence pointing to the defendant's willingness to sell the officer drugs and her stated long history as a seller of narcotics. Each statement was substantially supported by evidence in the record. In this instance, the prosecutor did no more than is allowed. See Commonwealth v. Kater, 432 Mass. 404, 422 (2000). There was no error, and thus, no risk that justice miscarried.
In addition, the defendant challenges the use of seven rhetorical questions in the prosecutor's closing argument. These questions were permissible responses to the defendant's use of a defense of entrapment and based upon the reasonable view that the defendant was not pressured into selling drugs to the informant. While rhetorical questions “should not be used in closing argument where they could be perceived by the jury as shifting the Commonwealth's burden of proof to the defendant,” Commonwealth v. Habarek, 402 Mass. 105, 111 (1988), these questions were in response to the entrapment defense and could not have been perceived by the jury to have improperly shifted the burden of proof onto the defendant. Commonwealth v. Rogers, 43 Mass.App.Ct. 782, 786 (1997). See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). The prosecutor instead utilized these questions to argue to the jury that the defendant was not credible concerning her allegations of entrapment. See Commonwealth v. Freeman, 430 Mass. 111, 118–119 (1999). These questions, made with reference to the substantial evidence showing the defendant's predisposition, highlighted why the defendant should not be held credible and was not coerced into making multiple sales to the undercover officer. None of the statements questioned the defendant's failure to present evidence in any fashion. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). Finally, the judge's instruction to the jury properly set forth the Commonwealth's burden of proof.
Judgments affirmed.