Com. v. Francis

• Decision Date: 07 March 1984
• Parties: COMMONWEALTH v. Kevin FRANCIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 811

461 N.E.2d 811

391 Mass. 369

COMMONWEALTH v. Kevin FRANCIS.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 6, 1983.

Decided March 7, 1984.

Stephen Hrones, Boston, for defendant.

Judy G. Zeprun, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant was convicted of murder in the first degree. He is now appealing, pursuant to G.L. c. 278, § 33E, contending that: (1) the prosecutor misstated certain evidence during his closing argument to the jury and this misstatement was sufficiently prejudicial to require reversal; (2) the judge's admission in evidence of combined frontal and profile photographs (commonly termed "mugshots") which an eyewitness had used to identify the defendant improperly suggested to the jury that the defendant had engaged in prior criminal activity; and (3) these errors considered individually or together amounted to a miscarriage of justice. G.L. c. 278, § 33E. Finding no error by the prosecutor or the judge on the points alleged, and no reason to exercise our power under G.L. c. 278, § 33E, we affirm.

We summarize the relevant facts. On September 19, 1981, at approximately 7:00 P.M., Terrence Smith, the eyewitness, was driving along Blue Hill Avenue toward Mattapan Square, in Boston. It was drizzling slightly, but was starting to clear, and Smith was able to see by natural light. He saw a young woman on the sidewalk running toward him. Although his vehicle was moving at approximately fifteen to twenty miles per hour, he observed that the woman was carrying a stick and that she was wearing a "rain or shine" jacket, new boots, and dungarees. Smith then saw a man running about forty or fifty yards behind the woman. As the man drew closer, Smith noticed a knife in his hand. Upon observing this, he slowed down his car. Although there is some dispute over his precise actions at this point, Smith either stopped and opened the door of his automobile, placing one foot on the ground, or he slowed down to better observe the scene in front of him. The man then passed Smith, and continued to run along the sidewalk after the woman. At trial, Smith testified that the man came within fifteen feet of him, such that it was possible to get "a very good side view." Overall, Smith observed the man for a total of eight to ten seconds.

About 7:15 P.M. that evening the police received a call summoning them to the Franklin Field area, and upon arrival they discovered the body of the victim, Vanessa Marson. At trial, the medical examiner testified that the victim had died of multiple stab wounds to her chest and skull.

On September 30, 1981, from an array of ten or twelve photographs submitted to him by the police, Smith initially identified the defendant as being the man he observed on the evening in question. The next day, he identified (by means of a photograph) Vanessa Marson as "the girl that was running up the street." At trial, Smith again identified the defendant as the man he saw running along Blue Hill Avenue with a knife. The defendant was a former boyfriend of the victim, and the prosecution introduced evidence that he had threatened the victim (who was since dating someone else) two months before the murder occurred. ¹

The defendant alleges that the prosecutor misstated the testimony of a defense witness, James Stuckey, whose testimony was introduced to cast doubt on Smith's credibility as an eyewitness. Stuckey, who was a friend of Smith, testified that Smith and others were visiting him on September 20, 1981, the day after Smith had witnessed the events on Blue Hill Avenue. During this visit, Stuckey received a telephone call from his daughter. When he rejoined his guests, he told them that his daughter's girl friend had been killed on Blue Hill Avenue. Smith then recounted his observations of the prior evening.

In Smith's various recollections of the incident, both during his initial interview by police and at trial, he maintained consistently that after seeing the pursuer's knife he stopped his car and placed one foot on the ground outside the vehicle to gain a view unrestricted by the interior of the car. He also stated that upon hearing about the murder from Stuckey he related the same set of events. Stuckey, however, after repeated questioning at trial, stated that Smith had told him that he only slowed down, but did not stop, his car. ²

During his closing argument, the prosecutor stated that "[h]e [Smith] never said whether he stopped or didn't stop [to Stuckey]. He didn't give a complete statement to Mr. Stuckey.... They never got to the issue whether he stopped or not." The defendant's objections to these statements were overruled. Although he did not request the judge to issue curative instructions to the jury at the time, he now contends that this portion of the prosecutor's argument was improper, that specific instructions were required to ameliorate the harm, and that in their absence prejudicial error resulted.

The proper scope of a prosecutor's closing argument may be simply summarized: counsel may argue as to the evidence and any inferences that may be drawn from it. Commonwealth v. Earltop, 372 Mass. 199, 205, 361 N.E.2d 220 (1977) (Hennessey, C.J., concurring). Leone v. Doran, 363 Mass. 1, 18, 292 N.E.2d 19 (1973). "Counsel has the right to argue inferences from the evidence favorable to his case, and the precise form should not control unless it tends to lead the jury to an improper inference not from the evidence but from the apparent personal knowledge of the attorney." Commonwealth v. Nordstrom, 364 Mass. 310, 315, 303 N.E.2d 711 (1973).

There was an apparent inconsistency between Smith's recollection of his reaction to viewing the defendant's pursuit of the victim and Stuckey's account of Smith's description of the incident the next day. Although the prosecutor's closing argument offered a doubtful interpretation of the testimony, this version was, at least, within the reasonable inferences permissibly open to conjecture from the testimony in its light most favorable to the Commonwealth. Smith remained adamant that he in fact stopped his car upon observing the defendant pursuing the victim. It was open to the prosecutor to argue that the difference between Smith's and Stuckey's testimony was the result of an incomplete discussion of the event or a misinterpretation by Stuckey of Smith's account. The particular statement of the prosecutor to which the defendant objected occurred while the prosecutor was attempting to articulate this concept of an incomplete discussion. The statement by the prosecutor that Smith "never said whether he stopped or didn't stop," although technically inaccurate in the narrowest sense, cannot be characterized as an intentional misstatement sufficient to constitute reversible error, especially when the evidence is considered in the context of his argument as a whole.

Even if we were to find that the prosecutor's characterization of the evidence was intentionally misleading, the defendant has failed to show that it had a sufficiently prejudicial effect on the jury to merit reversal. The truly critical element of Smith's testimony was not contested by Stuckey: the latter corroborated Smith's statement that he was able to get a good view of the victim's pursuer. This went to the heart of Smith's role as an eyewitness. When we consider the prosecutor's argument as a whole, as we must, Commonwealth v. DeChristoforo, 360 Mass. 531, 537, 277 N.E.2d 100 (1971), aff'd sub nom. Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974), the defendant has failed to demonstrate that this characterization by the prosecutor prejudiced the jury. This is not a case where the prosecutor made reference to a defendant's failure to testify, Commonwealth v. Gouveia, 371 Mass. 566, 570-572, 358 N.E.2d 1001 (1976), or stated his personal belief in the defendant's guilt, Commonwealth v. Sherman, 294 Mass. 379, 390-391, 2 N.E.2d 477 (1936), or attempted to use ethnic prejudice to sway the jury, Commonwealth...