Opinion
14-P-116
07-28-2015
COMMONWEALTH v. JAMES L. CALDWELL.
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
After a one-day jury trial, the defendant was convicted of larceny from the person, in violation of G. L. c. 266, § 25(b). He appeals, arguing that a combination of errors, none of which drew an objection, created a substantial risk of miscarriage of justice. While we agree that one of the questions posed by the prosecutor when cross-examining the defendant, in combination with closing argument, was error, we are persuaded that neither that error, nor any errors here, created a substantial risk of miscarriage of justice. We therefore affirm.
In light of our holding, we need not reach the defendant's claim of ineffective assistance of counsel. See Commonwealth v. Azar, 50 Mass. App. Ct. 767, 778 (2001).
Background. The only trial witnesses were the alleged victim, Steven Hunter, an arresting police officer, and the defendant. Hunter testified that he boarded a bus in Boston and sat down, carrying in his shirt pocket $100 in single bills bundled with a rubber band. He noticed the defendant, who was sitting behind him, leaning over his neck and shoulder area. He checked his shirt pocket and discovered that the bundle of money was gone. He stood up and demanded that the defendant return his money. The defendant became "nervous and scared"; Hunter asked the bus driver to keep the defendant from getting off the bus, but the driver refused. The defendant got off the bus at the next stop. Hunter got off at the same stop and began to follow the defendant, while calling 911 on his cellular telephone and loudly describing the defendant and the circumstances.
At some point, the defendant "started coming at" Hunter using expletives; he then reached down in his pocket as if he were "pulling something out," which led Hunter to believe that the defendant had a gun. The defendant also chased Hunter around several parked cars and eventually ran away. Hunter followed at a distance and saw the defendant take out a wad of money from his back waistband. Hunter testified that he was "[o]ne hundred percent sure" that the money was his because of the way it was folded. According to Hunter, the defendant then ran back toward the bus stop; Hunter lost sight of him. Approximately two minutes later, Hunter saw the defendant leave the vicinity of a "Porta Johnny" off an alleyway. The police arrived and the defendant was arrested. No money was recovered, and the defendant was unarmed.
At trial, the defendant denied stealing the money. (T. 118) He testified that he was surprised by Hunter's accusation and got off the bus in order to "dissolve the whole situation and just remove [himself]." He claimed that, when Hunter was following him, he had opened his jacket to show Hunter that he did not have the money.
Witnesses' credibility. After cross-examining the defendant about the events preceding his arrest, and impeaching him with two prior convictions, the prosecutor asked the defendant whether he was familiar with "how sometimes when someone's bluffing they do something to indicate that they are bluffing, that they are lying?" and how "sometimes people can't look somebody in the eye or may wipe their mouth as an indication that they're lying?" Later, in his closing argument, the prosecutor argued that the defendant had exhibited characteristics that "look[ed] like when [someone is] lying," and that Hunter exhibited the opposite characteristics when testifying. The defendant argues that the prosecutor's question during cross-examination and his statements during closing argument were impermissible and created a substantial risk of miscarriage of justice.
A prosecutor's cross-examination is proper if "the examiner . . . [has] a reasonable belief that the facts implied by the questions could be established by admissible evidence." Commonwealth v. Peck, 86 Mass. App. Ct. 34, 39 (2014). The Commonwealth maintains that the prosecutor properly called attention to the defendant's demeanor, which undermined the defendant's credibility. It is true that a testifying defendant fairly opens himself to attacks on his credibility on the witness stand, see Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 52 (2003); those attacks can include comments by the prosecutor on the defendant's "noteworthy" court room demeanor, see Commonwealth v. Pullum, 22 Mass. App. Ct. 485, 488 (1986). Nevertheless, a prosecutor's comments must have some "basis in the evidence." Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 290 (2003). That was absent here.
The Commonwealth argues that the indicia of deception argued by the prosecutor were "common knowledge." Commonwealth v. Fitzgerald, 376 Mass. 402, 420 (1978). However, common knowledge requires more than a widely shared belief -- the facts classified as common knowledge must be "indisputably true." Commonwealth v. Greco, 76 Mass. App. Ct. 296, 301 (2010) (other citation omitted). In the circumstances of this case, it may very well be that personal history, including culture, life experience, and other factors, could contribute to a witness's demeanor and cause him to respond differently to the experience of being a witness in a criminal trial, at least in terms of eye contact with his cross-examiner. In the absence of reliable expert testimony, we cannot conclude that the prosecutor's suggestions were correct or that he fairly used them to cross-examine the defendant. In addition, the prosecutor repeated the point during closing argument. He not only advocated for his theory that looking away and failing to make eye contact implied that the defendant was lying, but invited the jurors to consider some of the same visual cues.
We determine whether "reversal is required by considering '[a] whether the defendant seasonably objected; [b] whether the error was limited to collateral issues or went to the heart of the case; [c] what specific or general instructions the judge gave the jury which may have mitigated the mistake; and [d] whether the error, in the circumstances, possibly made a difference in the jury's conclusions.'" Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 233 (2013), quoting from Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000).
Most of those factors cut against the defendant. First, he did not object, either to the cross-examination or to the prosecutor's closing. Also, the prosecutor's statements were fairly limited. The objectionable material during cross-examination was only one question. The objectionable portion of the closing argument was brief and it was surrounded by appropriate argument. Significantly, immediately before closing arguments, the judge instructed the jury that closing arguments were "not evidence . . . [but] argument . . . provided under our system to allow each side to attempt to persuade you to look at the evidence in the light most favorable to their respective interests. [If] your memory of what a witness testified to differs from what one of these talented lawyers tells you a witness testified to, it is your memory that you should rely upon." In addition, in her final instructions, the judge directed them to consider only the evidence provided by "the sworn testimony of the witnesses, as well as the Exhibit that was introduced." Finally, we note that jurors are "presumed to recognize that the prosecutor is an advocate, not a witness," Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999), and they may be expected "to some degree, to discount [the prosecutor's] remarks as seller's talk." Commonwealth v. Coleman, 366 Mass. 705, 714 (1975) (other citation omitted). Considering all of the above, we cannot say that the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Lassiter, 80 Mass. App. Ct., 125, 132-133 (2011).
The prosecutor said, "[Y]ou all know what someone looks like when they're lying, don't you? . . . You've been judging people all your life on exactly that. . . . [W]hat does someone look like when they are in fact lying? Well they don't make eye contact with you. They look down and away, just like the defendant did all through his testimony. They take too longer [sic] to answer the questions [be]cause they're trying to think of the right thing to say not what actually happened, just like the defendant." As the Commonwealth argues, the admonition to rely on the jurors' life experience is a staple of the model jury instruction on credibility. See Instruction 2.260 of the Model Jury Instructions for Use in the District Court (2009).
We address briefly the defendant's remaining claims of error. None drew a defense objection at trial, and none changes the result here.
Witnesses' testimony. The defendant contends that Hunter testified improperly that he was afraid that the defendant had a gun. In fact, Hunter's testimony was that the defendant motioned several times as if he were pulling out a gun. That testimony was admissible as evidence of consciousness of guilt, "even if it tend[ed] to indicate that the defendant committed or planned to commit another offense." Commonwealth v. Fernandes, 427 Mass. 90, 94 (1998). In addition, because the defendant likely could hear Hunter speaking with the 911 operator, his gesture could have been seen as an implicit command to stop talking to the operator.
The defendant also takes issue with Hunter's testimony that the bus driver let the defendant leave the bus because he could have gotten "violent." Here, the defendant is correct that this testimony amounted to speculation about the bus driver's state of mind; it was not based on personal knowledge and therefore not admissible. See Commonwealth v. Andrews, 403 Mass. 441, 461 (1988). However, we think it likely that the jury understood that this brief testimony was only Hunter's opinion -- and unlikely that it "materially influence[d] the guilty verdict," Commonwealth v. Smith, 460 Mass. 385, 396 (2011)(other citation omitted), creating a substantial risk of miscarriage of justice.
In addition, we disagree that the testimony of one of the arresting officers, Officer Santry, included incorrect and inadmissible hearsay because he referred to the defendant's alleged larceny as "robbery," mistakenly implying that the defendant had used force against Hunter. Santry mentioned the word each time in a context that made the statement admissible as offered, not for its truth, but as evidence of state of mind or knowledge at the time of the events in question.
Moreover, it is unlikely that the jury, without instruction from the judge, would have known and understood the common law distinction between larceny from the person and robbery.
Vouching for witness credibility during closing argument. The defendant argues that the prosecutor improperly vouched for Hunter's credibility when he asked, rhetorically, whether it was convenient for Hunter to have come to court to testify and responded to his own question by saying, "[t]he only reason why he's coming here today, to you, is not out of convenience but because it's the right thing to do," adding that "[h]e's here to tell you what he knows and suggests to be the truth."
Later, the prosecutor argued that since Hunter had never seen the defendant before the incident, he had no reason to lie about "what the defendant did that day."
Although a prosecutor cannot vouch for a witness's credibility, the prosecutor can "point to the logical reasons a witness's testimony should be believed." Commonwealth v. Koumaris, 440 Mass. 405, 414 (2003). Here, defense counsel had earlier suggested that Hunter conveniently had blamed the defendant for the loss of the money. As a result, the prosecutor fairly could respond by arguing that Hunter had done something that was not convenient for him -- coming to court and testifying. See Commonwealth v. Ortiz, 463 Mass. 402, 416 (2012). The prosecutor's comment on the absence of an incentive for Hunter to lie because he had never met the defendant before the incident was a proper inference from the evidence. See Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008) ("[T]here is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie").
The defendant also challenges the prosecutor's argument that Hunter was there to tell the jury "what he knows . . . . to be the truth." That statement, perhaps implying personal knowledge by the prosecutor, is more problematic and would have been better left unsaid.
Misstatement of the evidence in closing argument. The Commonwealth acknowledges that the prosecutor twice misstated the evidence when claiming that Hunter saw his money in the defendant's hand "immediately after he noticed that the money was gone." However, given the judge's admonition to the jury that argument was not evidence, combined with the brevity of the trial, we cannot say that the misstatement created a substantial risk of a miscarriage of justice. Another statement challenged by the defendant, the prosecutor's comment that Hunter was "100 percent confident that he saw that money in the defendant's hands that day," was a correct rephrasing of Hunter's testimony that he was "[o]ne hundred percent sure" that he saw the defendant take the money out of the waistband of his pants during the chase.
The prosecutor repeated the misstatement later, saying that Hunter saw the money "in the defendant's hands just after it was taken from him."
Other issues in closing argument. The defendant also argues that the prosecutor improperly invited the jury to speculate about where the money could have ended up, suggesting that the defendant might have met an accomplice, thrown the money away, or thrown it on a roof. Defense counsel had argued that the fact that the stolen money was never recovered supported the defendant's testimony that he had not taken it. In that context, the prosecutor's comments suggesting that the defendant could have disposed of the money in a variety of ways properly offered the explanation that the defendant's innocence was not the only "reasonable and possible" inference from the facts. Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993).
Finally, the defendant argues that the prosecutor shifted the burden of proof when commenting on what the defendant, if innocent, would have done when Hunter accused him of stealing or upon his arrest. We see no error. Although a prosecutor may not comment on a defendant's right to remain silent, it is "permissible for a prosecutor to ask the jury rhetorical questions that touch on the defendant's constitutional right not to incriminate himself without violating that right provided the questions are not of such nature that a jury would naturally and necessarily construe them to be directed to the failure of the defendant to testify." Commonwealth v. Gruning, 46 Mass. App. Ct. 842, 845 (1999) (other citations omitted). The prosecutor's rhetorical questions related to the defendant's behavior after leaving the bus as evidence of his consciousness of guilt; the argument's focus was not the defendant's silence after arrest or whether the defendant volunteered for a search. In that context, the rhetorical questions did not violate the defendant's right to remain silent or improperly shift the burden of proof. See Commonwealth v. Valentin, 420 Mass. 263, 274 (1995).
The prosecutor said, "What about the defendant's actions after he got off that bus? . . . He went down the street, he ran and he hid. . . . What would someone do if they weren't guilty? Well, especially if they knew that the police were coming on that day, they would have waited just to see the police and when the police came he reached his hands in his pockets, turned them out and say, 'What money? I have no money. That person who's accusing me, he's just acting crazy.' But that's not what the defendant did. He ran and he hid."
Considering the record as a whole, we are satisfied that any errors were not significant and did not create a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 28, 2015.