Opinion
15-P-320
03-25-2016
COMMONWEALTH v. BRENDAN CAMPBELL.
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
The defendant, Brendan Campbell, appeals from his convictions on two firearms charges, claiming a variety of improper arguments in the Commonwealth's summation. We affirm.
Background. We recite the facts as the jury could have found them. At approximately 4:20 A.M. on April 13, 2013, Boston police Officer Roger Layden, who was driving a marked police cruiser, responded to a call at 98 Waltham Street. Officer Layden heard "two or three loud bangs" that drew him outside the building, and while walking back to his cruiser he heard more of these bangs, which he believed were gunshots. Officer Layden began driving towards the source of the noise, and he heard over the radio that officers had been dispatched to a nearby location in response to reports of gunshots. As Officer Layden made his way towards Shawmut Avenue, he observed a blue sedan going the wrong way, and pursued the vehicle, later identified as a Dodge Avenger, until the vehicle "crashed" onto a curb. A lengthy pursuit on foot culminated in the defendant's arrest and the discovery of a firearm at a point in the defendant's flight path where Officer Layden had seen him crouching down.
Defense counsel's opening statement. Defense counsel informed jurors in his opening statement that much of his case would be devoted to undermining Officer Layden's credibility. He assured jurors that evidence, which he identified in specific terms, would be presented to support his claim that Officer Layden was not credible. After subjecting Officer Layden to a thorough cross-examination, defense counsel took another opportunity to attack the officer's credibility during his closing argument.
For example, defense counsel stated, "What you're going to see is that for a whole year prior to this case at two separate hearings involving this case Officer Layden identified Mr. Campbell as running to the parking lot to his immediate left . . . [which] was not the parking lot that the firearm was found in. Instead of forming the proper conclusion that I made a mistake, I guess the parking lot that I chased him through was not where the firearm was found and he didn't drop a gun, [Officer Layden] forms the opposite more convenient conclusion and says, oh, I guess I chased him through this parking lot. And they go so far as to create a brand new map and change his whole path of flight. . . . And you're going to see that [Officer Layden] worked backwards; wherever the firearm was found, that's where he's going to say he chased Brendan Campbell."
Prosecutor's closing statement. In his closing argument, the prosecutor made reference to several statements about evidence to be presented in the case made by defense counsel in his opening that turned out not to be supported by the evidence that was presented. Defense counsel objected. On two occasions, the judge responded appropriately by interrupting the prosecutor to inform the jury that statements made by defense counsel in his opening were not evidence, and that the jury were required to decide the case based exclusively on the evidence. Later, the prosecutor asked the jury rhetorically whether defense counsel, in his closing argument, was suggesting that Officer Layden was "a liar," and, if so, asked the jury to consider whether it made sense for Officer Layden to fabricate testimony.
The prosecutor made this argument by implying to the jury that if Officer Layden were fabricating his testimony, he could have "made it easy for the Commonwealth" by fabricating testimony that would have more directly inculpated the defendant.
Discussion. 1. Prosecutor's commentary on defense counsel's opening. "If he speaks with propriety on matters on the record before the jury, a prosecutor may properly comment on the trial tactics of the defence and on evidence developed or promised by the defence." Commonwealth v. Dunker, 363 Mass. 792, 800 (1973). In his opening, defense counsel promised certain evidence to the jury. The prosecutor was entitled to comment on the inclusion of such evidence, or its absence from the record, in his closing argument. See Commonwealth v. Grimshaw, 412 Mass. 505, 507-508 (1992). Moreover, even if there were any error involved in such comments, the defendant was not harmed because in each case a timely objection by defense counsel was followed by a curative instruction. See Commonwealth v. Springer, 49 Mass. App. Ct. 469, 475-476 (2000). See also Commonwealth v. Brewer, 472 Mass. 307, 315 (2015).
2. Misstatements of law. The defendant also claims error in several statements made by the prosecutor in his closing concerning the law of constructive possession and that of joint venture. The Commonwealth concedes that the statements were erroneous. As there were no objections, our review is limited to determining whether in light of the arguments, and the case as a whole, there is a substantial risk of a miscarriage of justice. See Commonwealth v. Maynard, 436 Mass. 558, 570 (2002). We consider that in her charge, the judge specifically called attention to the fact that the prosecutor had made misstatements about the law, instructed jurors to follow her explanation of the governing law that was both detailed and accurate, and allowed the jurors to listen to a tape recording of the instructions while they deliberated. We are satisfied that any potential for harm was alleviated by the judge's instructions. See Commonwealth v. Morales, 461 Mass. 765, 784-785 (2012).
3. Improper vouching. "Improper vouching occurs 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. Ortega, 441 Mass. 170, 181 (2004), quoting from Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). See Mass. G. Evid. § 1113(b)(3)(B) (2016). In an effort to support the credibility of his key witness, Officer Layden, the prosecutor suggested that if Officer Layden had lied in his testimony, he could have fabricated a more helpful story for the Commonwealth's case. It is clear that this was not a personal belief in the witness's credibility, nor was the prosecutor suggesting that evidence existed outside the record that made Officer Layden more credible. Read in the context of the entire closing, this comment is an attempt to rehabilitate the credibility of a witness who had been attacked by the defense. See Commonwealth v. Raposa, 440 Mass. 684, 694-695 (2004). See also Grimshaw, supra at 509; Springer, supra at 478.
We also find no error in the prosecutor's suggestion that the defense was depicting Officer Layden as a liar. Based on statements made by defense counsel, the prosecutor was entitled to make this assumption and to refute it so long as he avoided expressions of personal opinion. See Brewer, supra at 315. See also Commonwealth v. Grandison, 433 Mass. 135, 143 (2001), and cases cited; Commonwealth v. Felder, 455 Mass. 359, 368 (2009).
Defense counsel in his opening statement stated that Officer Layden's trial testimony, which would conflict with prior testimony, was "more convenient" and that for trial, Officer Layden "create[d] a brand new map and change[d] [the defendant's] whole path of flight." See note 1, supra. In addition, defense counsel conducted a lengthy cross-examination of Officer Layden devised to impeach and question his credibility. Simply because defense counsel stated at one point in his closing that he was not accusing Officer Layden of being "a dishonest person," does not alter the fact that that a reasonable person could interpret defense counsel's other remarks as an argument that the officer was lying. Thus, the defendant's reliance on cases such as State v. Graves, 668 N.W.2d 860 (Iowa 2003); State v. Hazley, 19 P.3d 800 (Kan. 2001); and State v. Barrow, 809 P.2d 209 (Wash.App. 1991), is inapposite.
Judgments affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 25, 2016.