Opinion
14-P-1229 14-P-1611
03-03-2016
COMMONWEALTH v. JOSUE FRANCOIS (and a companion case).
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 joint trial before a jury in the District Court, the defendants, Lisa J. Lane and Josue Francois, were convicted of various criminal offenses, including assault and battery on a police officer and resisting arrest. On appeal, the defendants contend that the prosecutor committed reversible error in his closing statement. We affirm.
Lane was convicted of two counts of assault and battery on a police officer, G. L. c. 265, § 13D; one count of disorderly conduct, G. L. c. 272, § 53; and one count of resisting arrest, G. L. c. 268, § 32B; she was acquitted of one count of threatening to commit a crime. Francois was convicted of one count of assault and battery on a police officer, G. L. c. 265, § 13D; one count of resisting arrest, G. L. c. 268, § 32B; one count of disorderly conduct, G. L. c. 272, § 53; and one count of threatening to commit a crime, G. L. c. 275, § 2; he was acquitted of one count of assault and battery on a police officer.
Lane and Francois have pursued separate appeals. However, because the defendants raise nearly identical issues, we address both appeals in this memorandum and order.
Background. We summarize the facts the jury could have found. At approximately 3:30 A.M. on March 3, 2013, Marblehead police Sergeant Jason Conrad and other officers were dispatched to Lane's home in response to a noise complaint. Upon their arrival, the police observed Lane and another woman helping a man, who appeared to be intoxicated, up the stairs leading into the residence. After a brief conversation concerning the man's condition, Sergeant Conrad told Lane to keep the noise down. About twenty minutes later, the officers returned to Lane's home in response to a second report of a "disturbance." As Sergeant Conrad and the officers approached the house they heard yelling, which increased by the time they reached the outside storm door and, as a result, Sergeant Conrad decided to enter the apartment. He was in the kitchen when Lane came running into the kitchen from another room in the apartment yelling, "Get the fuck out of my house." Lane then struck Sergeant Conrad in the chest. Sergeant Conrad attempted to escort Lane outside, but she resisted. At about the same time, Francois came out of the bathroom and began yelling at Sergeant Conrad. Eventually both Lane and Francois, who were described as "enraged" and "angry," respectively, were removed from the home. More officers arrived after Sergeant Conrad called for backup, and both defendants fought with the police before they were handcuffed and placed under arrest. Francois was subdued only after the police used pepper spray. Both Lane and Francois remained uncooperative during the booking procedure. They continued to yell and make threats. Lane said that she intended to sue the arresting officers, and Francois stated, "I'm coming for you. I'll be back."
Lane testified at trial and offered a different version of the events. She claimed that she had only a few people over to celebrate her birthday and that the music was low. She asserted that the police had no reason to return to her home after the first visit other than to harass her. She denied striking Sergeant Conrad and stated that she was falsely accused.
Francois also testified. His version of the incident essentially corroborated Lane's testimony. He added that he attempted to defuse the situation by asking the officers to speak to Lane outside, but then saw the officers throw Lane to the ground. He, like Lane, denied any wrongdoing and claimed that he did not yell until the officers used pepper spray.
Discussion. The defendants contend that, during his closing, the prosecutor vouched for the Commonwealth's witnesses, mischaracterized the theory of the defense, argued facts not in evidence, and appealed to the jury's emotions. These errors, they claim, require reversal of their convictions. We disagree for the following reasons.
a. Vouching. In their respective closing arguments, trial counsel for Lane and Francois argued that the police were not credible. Francois's counsel argued first. Referring to the four police witnesses, he stated that there were "four different stories from four different officers" and characterized the lack of consistency and detail among those so-called versions as "amazing" and "absolutely ridiculous." He later said, "Somebody is mistaken on the facts." Lane's counsel argued in the same vein stating that the police witnesses had testified to "four stories."
Trial counsel for Lane objected to the prosecutor's closing on this ground, but Francois's counsel did not. To simplify matters, we review this claim for prejudicial error. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 807-810 (2009). There was no objection to any other portion of the prosecutor's closing and, therefore, we review all remaining challenges for error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
In response, the prosecutor, in his closing, stated that the defendants' theory of the case required the jury to believe the police had lied when they testified. At one point the prosecutor said, "These two defendants want you to believe that everything those four officers said was nothing but lies." He then remarked, "How ridiculous that is."
"Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Here, the prosecutor did not vouch for the credibility of the police officers. There was no expression of personal belief in the credibility of the police or any indication that the prosecutor had knowledge independent of the evidence before the jury. The prosecutor simply made an accurate statement of fact: that if the jury believed the defendants, they could not also believe the police. "In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying." Commonwealth v. Murchison, 418 Mass. 58, 60 (1994), quoting from United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991).
Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 295-297 (2003), upon which the defendants rely, is distinguishable. In McCoy, unlike here, defense counsel did not suggest the police witnesses were liars. See Commonwealth v. Ahart, 464 Mass. 437, 445 (2013) (McCoy inapplicable where counsel in fact argued that witness and police officer lied). In addition, the prosecutor in this case did not make "an emotional appeal" or resort "to needless hyperbole," as did the prosecutor in McCoy. Ibid.
b. Characterization of the defense. We are similarly unpersuaded by the defendants' argument that the prosecutor's characterization of the defense as "ridiculous" constituted error and, even if we were to conclude otherwise, it could not possibly have made a difference in the jury's deliberations. See Commonwealth v. Espada, 450 Mass. 687, 699 (2008) (acceptable to call defendant's story "ridiculous"). It bears noting that trial counsel for Francois described the lack of detail and consistency in the testimony provided by the four police officers as "ridiculous" as well.
The defendants also contend that the prosecutor improperly insinuated that the defense theory rested upon a finding that there was a conspiracy among the police officers. The prosecutor stated:
"Let's go back there to cause some trouble. Let's bust into the house and maybe assault some people. Put some people in handcuffs, throw them around on the ground, spray them with chemical spray. Let's do that. And then let's make up a whole bunch of stuff and throw them in reports. Draft long reports, spend hours at the station, let's do that, too. And then, let's come into court, swear under oath . . . . How ridiculous that is."The flaw in the defendants' argument is that Lane claimed that the officers had conspired to return to her home to arrest her and that the police had engaged in a cover-up. The prosecutor's statement was a justifiable response to this assertion. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999).
c. Misstatements of fact. The defendants argue that the prosecutor misstated the evidence when he said that Lane "laughed in [the] face" of Sergeant Conrad when he first responded to noise complaints at her home. They are correct that there is no direct evidence that Lane literally laughed at Sergeant Conrad. As the Commonwealth argues, however, the prosecutor's closing argument suggests not that Lane literally laughed at the police, but rather that Lane's "actions demonstrate[d] that she didn't care" about noise complaints from her neighbors. In this context, the usage of the phrase was idiomatic, reinforcing Sergeant Conrad's testimony that Lane was dismissive.
The defendants next claim that there was no record evidence to support the prosecutor's argument that they had been "drinking" and "partying all night." They are incorrect. Several witnesses observed alcohol at the party and described the defendants' erratic behavior, which was consistent with intoxication. In addition, Sergeant Conrad testified that he believed Lane was intoxicated.
d. Appeal to jury's emotions. Francois takes issue with the prosecutor's description of his attitude as "wild, animalistic." This description came close to constituting improper argument and was better left unsaid. However, there was no objection and there was evidence to support a conclusion that Francois was acting without control. We thus conclude that the prosecutor did not exceed the boundaries of proper argument.
Lane contends that the prosecutor improperly appealed to the jury's emotions by arguing that the police had no choice but to respond as they did. The prosecutor stated:
"[The responding police officers'] options were go into that house and end the noise . . . [or,] if they chose to ignore that, . . . [to go] to their chief's office where they put down badges and . . . guns and sa[y], 'I quit because I don't want to serve and protect anymore.'"This remark did not suggest to the jury that they should be concerned about how an acquittal would affect society, rather than with their responsibility to return a just verdict. There was hyperbole here, but no error. Moreover, Lane and Francois were each acquitted of one of the charges against them. This "suggests that [the jurors] approached their duty dispassionately" and were not influenced by the remarks in question. Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 12 (2010), quoting from Commonwealth v. Bly, 444 Mass. 640, 655 (2005).
We have carefully considered each of the arguments presented in the defendants' briefs. To the extent that we have not specifically addressed any particular claim, we consider it without merit.
Finally, the jury were instructed, in both the preliminary and final stages, that the closing arguments of counsel were not to be considered as evidence, which minimized any possible prejudicial effect. See Commonwealth v. Ortiz-Soto, 49 Mass. App. Ct. 645, 650 (2000).
Judgments affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 3, 2016.