Opinion
No. 15–P–570.
05-16-2016
COMMONWEALTH v. Jay ANDERSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted of murder in the second degree. The defendant raises a single issue on appeal, i.e., whether the prosecutor's closing argument, to which the defendant did not object, was error that created a substantial risk of a miscarriage of justice. We affirm.
Background. On or about February 2, 2013, the defendant attended a house party of approximately twenty-five people in Worcester. Attendees consumed alcohol and marijuana, and the victim was noticeably intoxicated. Shortly after the defendant arrived, he argued with the victim in the kitchen. The victim was hostile and angry. During the argument, the victim yelled, “You want to bring out knives? I can bring out knives.” The victim's cousin and friends intervened and took him into the living room to calm down. Meanwhile, the defendant stayed in the kitchen with his back against the wall, holding a knife behind his back. When the victim returned to the kitchen he went to the defendant, shook his hand, and said, “No beef.” Shortly thereafter, the defendant fatally stabbed the victim in the neck.
The defendant claimed self-defense at trial. He argued that the victim was armed with a dagger. The defendant's girl friend testified that the victim had a knife in his hand when he returned to the kitchen. No other witness testified that the victim was armed.
Discussion. The defendant contends the prosecutor misstated the evidence and improperly appealed to the jurors' emotions during closing argument. Because the defendant did not object to the prosecutor's argument, “we review his claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice.” Commonwealth v. Shanley, 455 Mass. 752, 773 (2010).
It is well established that a “prosecutor may argue strenuously, and even with a flourish, that the jury should credit certain testimony or draw certain inferences consistent with the evidence before them.” Commonwealth v. Merry, 453 Mass. 653, 667 (2009). “A prosecutor may not, however, misstate the evidence, refer to facts not in evidence, or interject his personal belief in the defendant's guilt.” Commonwealth v. Young, 461 Mass. 198, 206 (2012). In summation, a “[p]rosecutor[ ] must limit the scope of [his] argument[ ] to facts in evidence and inferences that may be reasonably drawn from the evidence.” Commonwealth v. Coren, 437 Mass. 723, 730 (2002). “The inferences suggested by the prosecutor need only be reasonable and possible and need not be necessary or inescapable.” Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993).
The defendant claims four misstatements of the evidence, which we have set forth in the margin. After careful review of the record, we determine that the four claimed misstatements were either directly supported by witness testimony or were permissible inferences from the evidence. Thus, there was no error in the prosecutor's summary of the reasonable inferences to be drawn from the evidence.
The defendant argues the following were misstatements of the evidence:
(1) “[The defendant] knows his friend has a wrench.”
(2) The prosecutor's characterization of the defendant as “mad” and “angry” the night of the incident.
(3) “He doesn't go home, ladies and gentlemen. When you're scared, where do you run? You run home. He stayed as far away from his family's house as he could. He stayed in the city. He avoided his parents. He avoided his family. He went to a cousin he hadn't seen for four or five months.”
(4) “[The victim's] life ended the minute he decided to stick up for his friends. He was killed over an argument that wasn't his.”
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The defendant also argues that the prosecutor improperly appealed to the jurors' emotions when he stated, “And with that forceful stab through his neck, the defendant took away everything [the victim] was and everything [the victim] could have been.” What the victim “could have been” was not relevant to the jury's consideration of the evidence and we discern no proper purpose for the comment. However, “[w]e consider the challenged comment[ ] in light of the entire argument, the judge's instructions, and the evidence at trial.” Commonwealth v. Burns, 49 Mass.App.Ct. 677, 679 (2000).
Here, the Commonwealth's case was strong. The defendant conceded that he stabbed the victim. The question for the jury was whether or not the defendant acted in self-defense. Although witness accounts were inconsistent, there was eyewitness testimony that the defendant struck the fatal blow suddenly and without provocation, after the victim had returned to the kitchen and shaken hands with the defendant in an effort to end the earlier hostility. In addition, the jury were correctly instructed that their decision must be based on the evidence, that the arguments of counsel were not evidence, and that they should not be swayed by prejudice or sympathy. The jury are presumed to have followed these instructions. Commonwealth v. Gonzalez, 465 Mass. 672, 681 (2013). For these reasons, we discern no substantial risk of a miscarriage of justice. Commonwealth v. Burns, 49 Mass.App.Ct. at 682–683 (improper comment did not create substantial risk of miscarriage of justice where Commonwealth's case was strong and judge properly instructed jury).
Judgment affirmed.