Compare Commonwealth v. Bourgeois, 391 Mass. at 885. We conclude that the multiple instances of prosecutorial misconduct, see Commonwealth v. DeMars, 42 Mass. App. Ct. 788 (1997), S. C., 426 Mass. 1008 (1998), when aggregated, deprived the defendant of a fair trial and that he is entitled to a new one. As to the prejudicial impact of combined prosecutorial excesses, see also Commonwealth v. Borodine, 371 Mass. 1, 11-12 (1976), cert. denied, 429 U.S. 1049 (1977); Commonwealth v. Burke, 373 Mass. 569, 577 (1977). We properly could review the objected-to statements under a harmless error standard, and the unobjected-to statements under the miscarriage of justice standard.
The defendant's claim that the prosecutor "taunted" the defendant lacks merit. Cf. Commonwealth v. DeMars, 42 Mass. App. Ct. 788, 792 (1997). One point of contention was whether, before the murder, the victim went to the defendant's apartment to find the defendant or to bring food to the defendant's father.
For the reasons stated by the Appeals Court the defendant's convictions must be reversed. See Commonwealth v. DeMars, 42 Mass. App. Ct. 788 (1997). This matter is remanded to the Superior Court for further proceedings.
August 5, 1997 Further appellate review granted: Reported below: 42 Mass. App. Ct. 788 (1997).
See, e.g., Triplett, 398 Mass. at 567 ("[t]he relationship between the two witnesses, that of mother and son, magnifies the prejudice caused by the improper questioning"). See also Commonwealth v. DeMars, 42 Mass. App. Ct. 788, 794 (1997) (conduct "sought to cause the jury to loathe the defendant"). In this case, the Triplett-Long line of cases is not implicated.
Compare Commonwealth v. Griffith, 45 Mass. App. Ct. 784, 786 n. 3 (1998) (unobjected-to errors may be cumulated and weighed with those claims of error that have been adequately preserved). See Commonwealth v. Demars, 42 Mass. App. Ct. 788, 794 (1997), S. C., 426 Mass. 1008 (1998). Indeed, the improper admission of Barkyoumb's opinion appears synergistically toxic when viewed in conjunction with the prosecutor's questions that suggested the defendant had an obligation to tell the police at the time of his arrest the sources and intended uses for the money in his pocket.
It is misconduct for a lawyer to "[s]tate or allude to any matter . . . that will not be supported by admissible evidence . . . ." Commonwealth v. Demars, 42 Mass. App. Ct. 788, 794, S. C., 426 Mass. 1008 (1998) (quoting from former S.J.C. Rule 3:07, Canon 7, DR 7-106, as appearing in 382 Mass. 787 [1981]). See also Commonwealth v. Johnson, 431 Mass. 535, 541 n. 3 (2000), quoting from Rule 3.4(e) of the Massachusetts Rules of Professional Conduct, 426 Mass. 1389 (1998), which states: "A lawyer shall not . . . in trial, allude to any matter that . . . will not be supported by admissible evidence . . . ."
Hutchinson v. Essence Communications, Inc., 769 F. Supp. 541, 561 (S.D.N.Y. 1991). However, even if the prosecutor crossed the line by "[a]sk[ing] [a] question that he ha[d] no reasonable basis to believe is relevant to the case and that is intended to degrade a witness," see Commonwealth v. DeMars, 42 Mass. App. Ct. 788, 794 (1997) (quoting from Supreme Judicial Court Rule 3:07, Canon 7, DR 7-106, as appearing in 382 Mass. 787), S. C., 426 Mass. 1008 (1998), the point was not properly preserved for appeal. Of the five questions asked containing material now claimed offensive, defense counsel objected only to the last two. Those objections were not timely with respect to the earlier questions.
The comments are particularly troublesome as there was no evidence that Worcester had a criminal record, that he used drugs, or that he testified that the apartment was a crack house. See Commonwealth v. DeMars, 42 Mass. App. Ct. 788, 790 (1997), S. C., 426 Mass. 1008 (1998). (c) Comments unchallenged in the trial court.
See Commonwealth v. Clary, 388 Mass. at 594 ("combined effect of . . . three improper arguments by the prosecutor was sufficiently prejudicial to create a substantial risk of [a] miscarriage of justice"). See also Commonwealth v. DeMars, 42 Mass. App. Ct. 788, 790-791 (1997), S. C., 426 Mass. 1008 (1998). The Commonwealth commendably concedes that two of the four challenged remarks exceeded the bounds of proper argument — the first and last of the four remarks discussed below.