Opinion
15-P-460
04-06-2016
COMMONWEALTH v. SEAN WARREN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Sean Warren, was convicted on one count of breaking and entering with intent to commit a misdemeanor. On appeal, he argues that (1) the prosecutor made impermissible statements during closing argument; (2) he was denied effective assistance of counsel; and (3) there was insufficient evidence for conviction. We affirm.
The defendant was arrested in 2014 and charged with breaking and entering with intent to commit a felony. At trial, the Commonwealth presented evidence that the defendant, high on synthetic marijuana, broke into Kirsten Hart's home. Hart was upstairs at the time and, upon hearing a noise, came downstairs and found the defendant standing in her living room. After he ignored her demands to get out, she kicked him three or four times until he was outside. She then called the police. The defendant testified that he never entered Hart's house but instead went to an open screen door and asked Hart for a ride to the hospital. The jury convicted the defendant of the lesser included offense of breaking and entering with intent to commit a misdemeanor.
1. Closing argument. The defendant argues that the prosecutor made multiple improper statements during closing argument that cumulatively amount to reversible error. Defense counsel did not object, and we review each of the defendant's claims for a substantial risk of a miscarriage of justice. Commonwealth v. Haskins, 411 Mass. 120, 121 (1991), citing Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
The defendant testified at trial that he asked the arresting officer for an ambulance because he was in need of medical attention, but no ambulance was called. The officer testified that he offered the defendant an ambulance but the defendant declined it. The defendant argues that the prosecutor improperly vouched for the police's version of this exchange during summation when he asked rhetorically: "Do you think the police want the liability of not sending someone to the hospital? Do you think they want someone dying in their custody?" And later, "He claims he said a million times he wanted to go to the hospital. Why wouldn't the police have taken him to the hospital if he was really out of it?"
The argument was not improper. "A prosecutor may not assert his or her personal opinion as to the credibility of a witness . . . However, the prosecutor may comment on evidence developed at trial and draw inferences from such evidence." Commonwealth v. Chavis, 415 Mass. 703, 713 (1993).
The defendant argued throughout the trial that the only reason he approached Hart's home was because he needed medical assistance. The Commonwealth presented evidence that the defendant was "out of it" by the time the police arrived, and that the police did in fact offer assistance.
We conclude, in light of this evidence, that it was not improper for the prosecutor to comment and draw the inference that the police, given their duty to protect and care for the public, including the defendant, would have asked the defendant if he wanted to go to the hospital. Ibid. The prosecutor was also permitted to argue that the defendant could have asked his girl friend or uncle to drive him to hospital, as these were reasonable inferences given the inconsistent state of the evidence concerning when he smoked the synthetic marijuana, and when he started feeling its effects. Ibid.
Similarly, we discern no error in the prosecutor's reference to the defendant's inconsistent testimony regarding his memory of the events leading up to his arrest or the prosecutor's reference to witness testimony that the defendant was seen coming from Hart's house. The witness who observed the defendant coming from Hart's house testified inconsistently, first saying that he saw the defendant coming from her "house" and then saying that he saw the defendant coming from her "yard." The prosecutor characterized the evidence in closing this way: "Neighbor says he saw him coming from her yard . . . 'Cause the neighbor sees him coming from the house." This statement adequately captures the witness's testimony and is not beyond the scope of the evidence. Chavis, supra at 714.
We do conclude, however, that the prosecutor should not have called the defense a "farce," or referred to the defendant's inhaler as "magic." Assuming without deciding that these sarcastic comments exceeded the bounds of permissible "enthusiastic rhetoric, strong advocacy, and excusable hyperbole," we nonetheless conclude that they did not create a substantial risk of a miscarriage of justice. Commonwealth v. Sanna, 424 Mass. 92, 107 (1997), quoting from Commonwealth v. Costa, 414 Mass. 618, 628 (1993). Indeed, the trial judge's instruction to the jury that the arguments were not evidence mitigated any prejudice that might have resulted. See Commonwealth v. Kozec, 399 Mass. 514, 518 (1987). In addition, defense counsel's failure to object or request a curative instruction "is some indication that the tone, manner, and substance of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360 (1985).
2. Ineffective assistance of counsel. The defendant argues that trial counsel was ineffective for failing to object to the prosecutor's closing argument as well as his failure to object to a line of questioning regarding the defendant's memory. As explained above, much of the argument was permissible so any objections would have been futile.
As for the sarcastic comments made during closing, we conclude that the jury would have recognized them for what they were -- excessive hyperbole without any meaningful significance. Trial counsel could also very well have decided to leave the unprofessional argument by the prosecutor unaddressed for tactical reasons, as it cast the prosecution in a negative light. Cf. Commonwealth v. Diaz, 448 Mass. 286, 291 (2007) (failure to object was strategic and not ineffective). Certainly, on direct appeal, the defendant has not demonstrated that this failure to object was not a tactical or strategic decision. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
Trial counsel's failure to object to the line of questioning regarding the defendant's memory of the events in question was not ineffective assistance of counsel. The defendant's lack of memory was a relevant issue that the prosecutor had a right to probe forcefully on cross-examination.
3. Insufficiency of the evidence. The defendant also argues that the evidence at trial was insufficient to convict him, but fails to provide a single legal citation or any argument to support this contention as required by Mass.R.A.P. 16(a)(4), as amended by 367 Mass. 921 (1975). Consequently, we need not address it as it does not rise to the level of appellate argument.
Judgment affirmed.
By the Court (Kafker, C.J., Vuono & Henry, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: April 6, 2016.