Opinion
No. 11–P–1470.
2013-02-26
COMMONWEALTH v. Frederick ROUSE.
By the Court (MEADE, SIKORA & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of possession of a class B substance with intent to distribute, as a subsequent offender, possession with intent to distribute a class B substance within 1,000 feet of a school zone, and resisting arrest. He now appeals, arguing that his defense was undercut by the prosecutor's improper objections during defense counsel's opening statement and closing argument. He also argues that his counsel was ineffective in closing argument. We affirm.
There was evidence that the defendant sold $60 worth of cocaine to a Boston police undercover officer.
Opening statement. The prosecutor interrupted the defendant's opening statement three times. Each time the judge sustained the objection. The defendant argues that these interruptions deprived him of his right to present his version of the facts. In his view, counsel's opening properly attempted to draw the jury's attention to the judge's instructions, referring to evidence counsel expected to produce, and preparing the jury for his theory of the case, that the officers would testify falsely to account for their “violent apprehension” of the defendant. “The proper function of an opening statement is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence.” A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass.App.Ct. 635, 641 (2011), quoting from Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). Counsel may “argue inferences from the evidence favorable to [its] case,” Commonwealth v. Morgan, 449 Mass. 343, 360 (2007), quoting from Commonwealth v. Johnson, 429 Mass. 745,748 (1999), but this does not mean that the opening statement “is [ ] an opportunity for argument.” Commonwealth v. Croken, 432 Mass. 266, 268 (2000). The trial judge has broad discretion in restricting counsel from exceeding the boundaries of a permissible opening statement. Morgan, supra.
The three challenged statements were: (1) “Now, as you hear the testimony, I'm going to ask you to remember that the judge asked you during the jury selection process whether you would credit and give credence to a police officer's testimony more than you would just because an officer would say it, more than you would a regular citizen or a regular person.” (2) “Well, as you hear about Mr. Rouse standing in front of them bleeding, as you get to that moment when you hear about that, I'm going to ask you to consider it, there he is bleeding, no drugs on him—(3) “And I'm going to ask you to consider that the story that you hear is the story they made up that night and the story—“
We are satisfied that the judge did not abuse his discretion when he sustained the objections. In each instance, counsel had shifted from outlining what he expected the evidence to be, to arguing, improperly, to the jury what inferences should be drawn from the evidence. In addition, apparently undeterred by the sustained objections, counsel continued to press the same argument in even stronger terms: immediately after the last quoted passage, he stated, without objection, “I'm going to ask you to consider whether the story that you hear from the police officers is designed to justify the violence that they used against Mr. Rouse, that night .”
Closing argument. The prosecutor objected once during defense counsel's twenty-two page closing argument. The objection came when counsel invited the jury to speculate whether the drug control unit officers had appropriated drugs from another case to use against the defendant. The judge sustained the objection and instructed the jury not to “engage in speculation.” On appeal, the defendant insists that the argument properly suggested that, because the officers had access to drugs from other “buy-bust[s]” that it was possible those drugs could be used against the defendant “to bolster [the officers'] version of the incident”; he also contends that the defendant was prejudiced when the judge sustained the objection and thereby, according to the defendant “gave his judicial endorsement to the prosecutor's position.”
The objection came after counsel stated, “That bag contains drugs. We don't know how it got in there. [A]nd I don't have a story to tell you about how the Drug Control Unit might have access because officer after officer, you heard about their credentials. They have done hundreds of these operations, over and over again. This stuff goes through their hands every day and I leave it up to you to think—to decide whether it's possible that when they wanted it, they had access to something like that.”
During closing argument, “[c]ounsel may argue from the evidence and may argue fair inferences that might be drawn from the evidence.” Commonwealth v. Murchison, 418 Mass. 58, 59 (1994). “Arguments not so supported are speculative, conjectural, and hence improper.” Id. at 60. In this case, there was no evidentiary support for the argument, and, even now, the defendant does not point to any—apart from noting that the officers had engaged in many drug investigations—including so called “buy-busts” where drugs were seized. This argument is not persuasive. The argument should not have been made and the objection was properly sustained. See Commonwealth v. McCoy, 59 Mass.App.Ct. 284, 292 (2003).
Specifically, he contends that that, “[f]rom this testimony alone the jury reasonably could have inferred that one or more of these officers could have had access to drugs outside of this case, which they then could claim had been sold to Officer Walsh by Frederick Rouse.”
Ineffective assistance. The defendant finally argues that the defendant was prejudiced by defense counsel's statement during closing argument that the defendant did not suffer “serious injuries.” Presenting this claim on direct appeal, rather than through a motion for new trial is the weakest form of this type of challenge and it is strongly disfavored. Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006). However, because the record before us includes evidence of the injuries suffered by the defendant, we address the issue briefly. See Commonwealth v. McIntosh, 78 Mass.App.Ct. 37, 42 (2010).
The defendant testified that, as a result of the officers tackling him, he was bleeding from his mouth and cheek. Defense counsel repeated those facts in his closing argument and confirmed that the defendant suffered “no broken bones, no permanent disfigurement.” “These weren't serious injuries” is an accurate statement. Including it in counsel's closing argument cannot be described as “ineffective.” See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgments affirmed.