Opinion
No. 11–P–1244.
2012-10-1
COMMONWEALTH v. Rod LOPEZ.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of assault by means of a dangerous weapon, G.L. c. 265, § 15B ( b ), arguing that certain statements by the prosecutor impermissibly shifted the burden of proof. We affirm.
Facts. Viewing the testimony at trial in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found the following facts. On the afternoon of October 21, 2010, the victim was driving on Route 138 in Somerset with his two young sons when he heard “a lot of noise” coming from behind him. Looking back, he saw “a gentleman [driving] in back of [him] that was pretty upset.” When he stopped at a red light, the victim looked back again and saw that the other man, who the victim identified at trial as the defendant, had pulled out a black handgun. After this encounter the victim made a report to the Somerset police department, informing them of the make, model, and license plate number of the car the defendant had been driving. Based on that report, police stopped the defendant's car and recovered a black firearm from a holster on the defendant's belt. The defendant acknowledged that there had been a confrontation between himself and the victim, but denied having brandished the firearm. Burden shifting. The only evidence that the defendant had brandished a gun during his encounter with the victim came from the victim's own statements. The defendant, who at the time of the incident was employed as a security guard, denied that he had drawn his weapon, claiming that he had merely “pinched” the badge on his uniform as a “reminder” to the victim that he “[didn't] want to mess around.” On cross-examination the prosecutor asked the defendant how the victim could have known that the defendant had a gun in his possession if the defendant had never drawn it during the altercation on the road. The defendant replied that based on his uniform, the victim had made “a correct assumption” that the defendant would be armed. The defendant now contends that this question, along with passages of the prosecutor's opening and closing where he highlighted it, impermissibly shifted the burden of proof by “suggesting to the jury that the defendant had an obligation to present evidence of his innocence.” Because there was no objection at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563–564 (1967).
“The Commonwealth may ‘attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusions the jury should draw from the evidence. Counsel may fit all the pieces of evidence together so that they form a comprehensive and comprehensible picture for the jury.’ “ Commonwealth v. Burgess, 450 Mass. 422, 437 (2008), quoting from Commonwealth v. Corriveau, 396 Mass. 319, 336 (1985). It was not improper for the prosecutor to encourage the jury to infer that the defendant had brandished his firearm from the fact that the victim could accurately describe the weapon. Nor was there any impropriety in arguing to the jury that the victim's version of events better explained that fact than the version offered by the defendant. The question on cross-examination merely afforded the defendant an opportunity to respond to this argument. The answer he provided was both reasonable and consistent with his theory of defense, and the alternative explanation he gave would not have been before the jury had the question not been asked. The defendant suffered no prejudice as a result of the question. See Commonwealth v. Wilcox, 72 Mass.App.Ct. 344, 350 (2008).
There was likewise no error in the prosecutor's closing argument, which focused not on the defendant's failure to provide evidence of his innocence but on the reasons why the evidence in the case, including the victim's knowledge of the defendant's possession of a black firearm, supported the victim's version of events rather than the defendant's. See Commonwealth v. Ayoub, 77 Mass.App.Ct. 563, 567–568 (2010), and cases cited. As for the opening, while the prosecutor should have reserved comment on this point for his closing (as the Commonwealth acknowledged at oral argument), the opening was overall framed properly, in terms of what the evidence would and would not show. Any possible problem was amply cured by the judge's repeated instructions to the jury that the Commonwealth bore the burden of proving each element of the crime beyond a reasonable doubt, that the jury were to base their verdict solely on the evidence, and that statements of counsel were not evidence. There was no substantial risk of a miscarriage of justice.
Other arguments. There is no merit to the defendant's argument that he was prejudiced when witnesses and counsel used the term “felony stop” to describe the car stop during which the defendant was arrested. A police witness explained the meaning of the phrase and testified that it is a procedure followed by police any time they have received a report that a motorist may have a gun. Use of the phrase thus did not imply that the defendant was actually guilty of a felony, and the mere fact that he was at some point stopped and arrested on suspicion of a felony could not have come as a surprise to the jury at his trial on that felony. The term is not so inherently inflammatory that its use caused a substantial risk of a miscarriage of justice.
The defendant's evidentiary argument likewise fails. The trial judge did not abuse his considerable discretion in deciding that testimony regarding the victim's son's reaction to the incident was relevant to the question of why the victim declined to give a formal statement to the police or participate in an identification process at the time of the incident. See Commonwealth v. Clayton, 52 Mass.App.Ct. 198, 201 (2001).
Judgment affirmed.