Opinion
10-P-1004
09-27-2011
COMMONWEALTH v. STEPHEN R. MAKIN.
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
This appeal is from the defendant's convictions for:
(1) carrying a firearm without a license, in violation of G. L. c. 269, § 10(a),
(2) discharge of a firearm within five hundred feet of a building, in violation of G. L. c. 269, § 12E, and
(3) possession of a firearm without a firearm identification card, in violation of G. L. c. 269, § 10(h). On appeal, the defendant argues that comments in the prosecutor's opening and closing statements constituted reversible error. We affirm.
The defendant was also convicted of assault and battery, assault by means of a dangerous weapon, and breaking and entering in the daytime with intent to commit a felony. Those convictions were not mentioned in the defendant's brief and appellate counsel acknowledged at oral argument that they were not part of the appeal.
Background. The Commonwealth's evidence is as follows. On September 23, 2008, the victim was watching television with his fiancé at their home in New Bedford. At some point, they saw a man, later identified as the defendant, step up onto the front porch of their home. When the victim went to the front door to see who was on the porch, he found the defendant in the home. The defendant then pointed a gun at the victim's head and demanded money. A struggleensued, with the defendant trying to keep hold of the gun. At some point, the defendant fired the gun and the bullet went by the victim's head. While the two men were struggling for control of the gun, the victim's fiancé ran into the street to try to get help.
Kevin Coelho, an employee of the Bristol County Sheriff's Office, was traveling in his vehicle near the victim's home when he saw the victim's fiancé in the street, screaming. Coelho stopped his vehicle, and the victim's fiance informed him that someone was trying to shoot her boyfriend. Coelho parked his car and proceeded into the victim's home. He entered and saw two individuals in a struggle. Coelho saw that the defendant was holding a gun with his finger in the trigger and that the victim had his hand on top of the gun. Coelho, with the help of the victim, forced the defendant to release the gun. Coelho then took the defendant outside of the home, and when the defendant attempted to flee, Coelho threw him to the ground and held him until the police arrived.
The police interviewed the defendant, recording both the audio and video of the interview. That recording was played to the jury. In his interview, the defendant stated that he needed money and had heard from certain individuals that the victim had money at his house. The defendant admitted that he had entered the victim's home with the intent to rob the victim, but that it was the victim who was in possession of a gun, not him, as he had brought only a knife. According to the defendant, when he pulled out a knife, the victim pulled out a gun. Then, as the victim approached him, the defendant was able to grab the gun. During the struggle that ensued, the gun fired once. Coelho then arrived, tackled the defendant, and subdued him until the police arrived.
The defendant did not call any witnesses to testify in his defense. Rather his strategy at trial was to admit to some criminal culpability, but to deny possessing or using a firearm.
Discussion. The defendant claims that in both his opening statement and closing argument, the prosecutor made statements that were improper.
a. The opening statement. In his opening statement, the prosecutor, among other things, referred to Coelho as a 'heroic passerby.' The prosecutor also asked the jurors to 'come back with the undeniable truth that [the defendant] is guilty of the charges' (emphasis added). At the conclusion of the prosecutor's statement, defense counsel objected to both comments. The judge overruled the objections and gave an instruction to the jury as to the purpose of opening statements. On appeal, the defendant claims that the prosecutor's comments improperly bolstered weaknesses in the Commonwealth's case, vouched for the credibility of Coelho, and misstated the evidence. Therefore, the defendant contends that there must be a new trial.
'[A] claim of improper [opening statement] by the prosecutor must be judged in light of the entire [statement], the judge's instructions to the jury, and the evidence actually introduced at trial.' Commonwealth v. Thomas, 429 Mass. 146, 158 (1999). In regard to the 'heroic passerby' comment, the undisputed evidence at trial could lead a reasonable juror to conclude that Coelho's actions were indeed 'heroic,' and thus the prosecutor's characterization of Coelho's role was accurate. The prosecutor's comment did not constitute improper vouching because he did not express a personal belief in the credibility of the witness, or indicate that he had knowledge independent of the evidence before the jury. See Commonwealth v. Felder, 455 Mass. 359, 368 (2009).
As to the 'undeniable truth' comment, it would have been better if it had not been said, but viewing the prosecutor's entire opening statement, we hold that there was no risk that the jury would have interpreted the remark as an exhortation to perform their duty by returning guilty verdicts.
Further, we note that the judge three times told the jury that opening statements are not evidence. 'We may presume that the jury understood and followed these instructions.' Commonwealth v. Wentworth, 53 Mass. App. Ct. 82, 94 (2001). Therefore, in view of all of the circumstances, including the overwhelming nature of the evidence against the defendant, we hold that even if there was any error, it was not prejudicial. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
b. Closing argument. The defendant claims that the prosecutor improperly argued inferences not supported by the evidence concerning the question of who first possessed the gun. There was no objection to the prosecutor's closing argument. Therefore, we review to determine if any error created a substantial risk of a miscarriage of justice. We view the prosecutor's comments in light of his entire argument, the judge's instructions to the jury, and the evidence at trial. Commonwealth v. Montez, 450 Mass. 736, 747 (2008). We note that both before and after the closing arguments, the judge instructed the jury that the closing arguments are not evidence. Moreover, the judge informed the jurors that they were the fact finders in the case.
In view of the judge's instructions, and for the reasons stated in the Commonwealth's brief, at pages fourteen and fifteen, we hold that if there was error, it did not amount to a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Mills, Smith & Wolohojian, JJ.),