Com. v. Kozec

• Decision Date: 24 March 1987
• Citation: 505 N.E.2d 519,399 Mass. 514
• Parties: COMMONWEALTH v. Holly KOZEC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 519

505 N.E.2d 519

399 Mass. 514

COMMONWEALTH v. Holly KOZEC.

Supreme Judicial Court of Massachusetts,

Essex.

Argued December 2, 1986.

Decided March 24, 1987.

Richard Zorza, Committee for Public Counsel Services, Boston, for defendant.

Kevin M. Burke, Dist. Atty., for Commonwealth.

Judith H. Mizner, Nancy Gertner and, John Reinstein, Boston, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

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

WILKINS, Justice.

Convicted of assault and battery by means of a dangerous weapon upon a person sixty-five years of age or older (but acquitted of assault with intent to commit murder), the defendant appealed to the Appeals Court which reversed her conviction. Commonwealth v. Kozec, 21 Mass.App.Ct. 355, 487 N.E.2d 216 (1985). Supported by the Attorney General and every other district attorney in the Commonwealth, the district attorney for the Eastern District applied for further appellate review, which we granted.

The Appeals Court reversed the conviction largely on the basis of prejudicial improprieties in the prosecutor's closing argument. Id. at 364-365, 487 N.E.2d 216. The Commonwealth complains that the "opinion lacks application of specific guidelines as to permissible conduct for prosecutors." We shall discuss this complaint, first generally and then specifically as to this case. We agree with the Appeals Court's conclusion that the judgment must be reversed.

We briefly summarize the basic facts concerning the stabbing of the victim, which are more fully set out in the Appeals Court opinion. Id. at 356-358, 487 N.E.2d 216. There is no dispute that late one July night in 1983, the defendant, a nineteen year old woman, stabbed the victim, a seventy-four year old man, on a rural road in Salisbury. The victim testified that he offered the defendant a ride home to Amesbury and she accepted. Thereafter, it is agreed, that the victim turned his vehicle off the main road and stopped the car. There were no other eyewitnesses to what next happened. The defendant and the victim differ significantly as to what was said and done. The victim said that the defendant attacked him with a knife because he would not pay her $50 for sexual activity she offered him. On the other hand, the defendant, who admitted that she was intoxicated, testified that she rejected the victim's offer of sexual activity for money, and he thereupon attacked her. She testified that she grabbed a knife, but could not recall stabbing the victim. After some intermediate activity, which we shall discuss in part later, the defendant drove the victim, who had been stabbed twice in the chest, to a hospital in Newburyport.

Between the July, 1983, stabbing and the July, 1984, trial, the victim's physical condition substantially deteriorated. He suffered a stroke; he lost a great deal of weight; his sight was impaired by cataracts; and his hearing deteriorated. Prior to July, 1983, he had had a laryngectomy that required him to use a stoma voice amplifier to talk. He testified, with the aid of his daughter as an "interpreter," from a wheelchair.

The Prosecutor's Closing Argument

1. The Commonwealth argues that recent appellate treatment of challenges to prosecutors' final arguments has had an improper chilling effect on their forceful advocacy because convictions have been overturned and prosecutors threatened with discipline for the violation of governing rules which, it is said, are subjective and imprecise. The Commonwealth also argues that the system operates inequitably in this respect because it does not deal with overzealous, unfair, or unethical closing arguments of defense counsel.

The rules governing prosecutors' closing arguments are clear in principle. We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence. See Commonwealth v. Earltop, 372 Mass. 199, 205, 361 N.E.2d 220 (1977) (Hennessey, C.J., concurring). On the other hand, a prosecutor should not refer to the defendant's failure to testify, ¹ misstate the evidence or refer to facts not in evidence, ² interject personal belief in the defendant's guilt, ³ play on racial, ethnic, or religious prejudice ⁴ or on the jury's sympathy or emotions, ⁵ or comment on the consequences of a verdict. ⁶

The problem is that, on the facts of given cases, close questions arise whether the prosecutor has gone over the line between fair and improper argument. In such cases, we must and do recognize that closing argument is identified as argument, the jury understands that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument. See Commonwealth v. Benjamin, 399 Mass. 220, 223-224, 503 N.E.2d 660 (1987). ⁷ A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed. See Commonwealth v. Palmariello, 392 Mass. 126, 134, 466 N.E.2d 805 (1984); Commonwealth v. Bradshaw, 385 Mass. 244, 277, 431 N.E.2d 880 (1982) ("[t]he jury could be expected to take both arguments with a grain of salt"); Commonwealth v. Johnson, 372 Mass. 185, 197, 361 N.E.2d 212 (1977); Commonwealth v. Coleman, 366 Mass. 705, 714, 322 N.E.2d 407 (1975). In this case, the jury may have done just that kind of sorting out because they in part rejected the position of each side, returning a verdict of not guilty on one charge and guilty on the other.

Part of the uncertainty of the current law concerning prosecutorial error in final argument concerns the unpredictability on appeal of the consequences of an improper final argument. The consequences of prosecutorial error depend on a number of factors, such as: Did the defendant seasonably object to the argument? ⁸ Was the prosecutor's error limited to "collateral issues" or did it go to the heart of the case (Commonwealth v. Shelley, 374 Mass. 466, 470-471, 373 N.E.2d 951 [1978] )? What did the judge tell the jury, generally or specifically, that may have mitigated the prosecutor's mistake, and generally did the error in the circumstances possibly make a difference in the jury's conclusions? See Commonwealth v. Cifizzari, 397 Mass. 560, 579-580, 492 N.E.2d 357 (1986); Commonwealth v. Bourgeois, 391 Mass. 869, 884-885, 465 N.E.2d 1180 (1984). On numerous occasions, the impact of an improper final argument has been mitigated by the judge's forceful instructions to the jury that the argument was inappropriate and should be disregarded. See, e.g., Commonwealth v. Borodine, 371 Mass. 1, 10, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); Commonwealth v. Domanski, 332 Mass. 66, 69, 123 N.E.2d 368 (1954). See also Commonwealth v. Brown, 392 Mass. 632, 641-642, 467 N.E.2d 188 (1984). Contrast Commonwealth v. Hoppin, 387 Mass. 25, 31, 438 N.E.2d 820 (1982); Commonwealth v. Hawley, 380 Mass. 70, 82-86, 401 N.E.2d 827 (1980). All these considerations must be undertaken on a case-by-case basis, and, although patterns of disposition may emerge from the cases in which there is prosecutorial error in the final argument, no satisfactory bright line rules can be found or could be written. Because the prosecutor was the source of the error, the Commonwealth should not express distress that the consequences to the defendant of the error depend on a judgmental assessment of several factors, particularly where, in a given case, the weighing of factors may preserve a conviction in spite of the error.

The Commonwealth is correct that it and its prosecutors are held to a stricter standard of conduct than are errant defense counsel and their clients, or, put another way, it is true that the government may suffer more serious consequences from improper closing argument than will the defense. We have rejected the argument that a prosecutor may simply "fight fire with fire" and exceed the normally proper limits of argument because defense counsel made an improper, excessive argument. ⁹ Although defense counsel's argument may justify a particular rebuttal from the prosecutor, the prosecutor, as a representative of the government, must hold himself to a consistently high and proper standard. See Commonwealth v. Shelley, supra 374 Mass. at 472, 373 N.E.2d 951. The prosecutor may object to defense counsel's argument if he regards it as improper, and he may request appropriate curative instructions. The judge may intervene spontaneously to stop improper argument and should give curative instructions, preferably forthwith. See Commonwealth v. Hawley, supra 380 Mass. at 85, 401 N.E.2d 827. ¹⁰ Defense counsel should be careful because a judicial reprimand in such circumstances does not aid the defendant. See Commonwealth v. Earltop, supra 372 Mass. at 207, 361 N.E.2d 220 (Hennessey, C.J., concurring). The fact remains, however, that no matter how inappropriate defense counsel's closing argument may have been, it probably will have no bearing either in defining the proper limits of the prosecutor's argument or in assessing the defendant's chances on an appeal challenging the prosecutor's closing argument.

2. The defendant argued, and the Appeals Court agreed, that some of the prosecutor's remarks on why the jury should believe the victim's testimony were "an impermissible appeal to the jury to decide the case on the basis of sympathy." Commonwealth v. Kozec, 21 Mass.App.Ct. at 362-363, 487 N.E.2d 216. ¹¹ The Appeals Court expressed its disapproval of the prosecutor's argument in most forceful terms. ¹²

The basic issue at trial was the credibility of the victim and the defendant. Because the victim testified, this case does not involve an appeal for sympathy for a deceased victim. It concerns a victim-witness whose testimony the prosecutor wanted the jury to believe. It is not improper to make a factually based argument that, due...