Opinion
10-P-1317
12-28-2011
COMMONWEALTH v. CLEVELAND BURGESS.
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
In February of 2010, a Superior Court jury found the defendant, Cleveland Burgess, guilty of unarmed robbery in violation of G. L. c. 265, § 19(b); assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A(b); and assault and battery in violation of G. L. c. 265, § 13A. On appeal, he claims error in that (1) the trial judge declined to give the jury the instructions provided in Commonwealth v. Bowden, 379 Mass. 472 (1980), and (2) he was denied the right to a fair trial due to prosecutorial remarks in the closing argument. We affirm.
1. 'Bowden' instruction. The defendant was not entitled to a jury instruction under Bowden. The instruction, which suggests that an inadequate police investigation might raise reasonable doubt concerning the defendant's guilt, is 'never required.' Commonwealth v. Williams, 439 Mass. 678, 687 (2003). As we have stated, 'a judge is not required to instruct on the claimed inadequacy of a police investigation. Bowden simply holds that a judge may not remove the issue from the jury's consideration.' Commonwealth v. O'Brien, 432 Mass. 578, 590 (2000) (citations omitted). There is no merit to the defendant's claim that the judge's instructions here removed the issue from the jury. The instructions were proper and accurate. The defendant remained free to argue -- and did argue -- the issue of the investigation's inadequacy to the jury. There was no error.
2. Prosecutor's closing argument. The defendant complains that certain remarks during the prosecutor's closing denied him a fair trial. We examine the prosecutor's comments in light of the 'entire argument, the evidence at trial, and the judge's instructions to the jury.' See Commonwealth v. Christian, 430 Mass. 552, 564 (2000).
a. Personalization of the defense. As did the trial judge, we reject the defendant's contention that he was prejudiced by the prosecutor's comment that the defense counsel 'is smarter than I am.' However clumsy, the remark did not disparage defense counsel or characterize him in a manner likely to prejudice or mislead the jury. See Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002). Compare Clark v. Clark, 47 Mass. App. Ct. 737, 744 n.7 (1999) (characterizing opposing counsel as 'shyster' and 'bald-faced liar '). Nor was the comment of such a nature as to distract the jury from following the judge's instructions, which stressed that closing arguments are not evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). As for the comments concerning the photographs being 'wonderful' and the reference to the jury's fact-finding role, both were permissible and in no way unfairly prejudicial. Moreover, these remarks were insignificant in the context of the entire argument. See Commonwealth v. Miles, 46 Mass. App. Ct. 216, 221 (1999).
b. Appeal to sympathy. The defendant also argues that the prosecutor inappropriately appealed to jury sympathy. The defendant's chief trial strategy was to challenge the victim's credibility. This, in turn, invited a response from the prosecutor, who referenced the victim's candor about her drug use, prostitution, and over-all life-style to emphasize that she had been forthright in her testimony, from which the jury could conclude she was credible. See Commonwealth v. Rolon, 438 Mass. 808, 816 (2003) (prosecutor may stress reasons why a witness's testimony should be believed). To the extent that the prosecutor remarked that the law protected the victim regardless of her own conduct, the comment was not an appeal to the jury's sympathy, but was intended to focus the jury on the Commonwealth's evidence rather than their possible disapproval of the victim's personal life-style.
c. Inference and misstatement. Lastly, the defendant claims that the prosecutor's characterization of the neighborhood and his statement about the victim's initial interaction with the police supply grounds for reversal. The judge instructed the jury to disregard the prosecutor's description of the neighborhood, including his statement concerning the hesitation of some witnesses to cooperate with the police. Moreover, the judge instructed the jury three times that closing arguments are not evidence, and juries are presumed to follow a judge's instructions. See Commonwealth v. Pope, 406 Mass. 581, 588 (1990). Even if better left unsaid, the prosecutor's remarks did not bring the certainty of the jury's verdict into doubt. See Commonwealth v. Molle, 56 Mass. App. Ct. 621, 629 (2002).
Judgments affirmed.
By the Court (Rapoza, C.J., Mills & Graham, JJ.),