Com. v. Mitchell

• Decision Date: 19 August 1981
• Citation: 424 N.E.2d 1149,12 Mass.App.Ct. 354
• Parties: COMMONWEALTH v. Sammie L. MITCHELL.
• Court: Appeals Court of Massachusetts

Page 1149

424 N.E.2d 1149

12 Mass.App.Ct. 354

COMMONWEALTH v. Sammie L. MITCHELL.

Appeals Court of Massachusetts, Plymouth.

Argued June 11, 1981.

Decided Aug. 19, 1981.

Brownlow M. Speer, Boston, for defendant.

Rosemary Ford, Asst. Dist. Atty., for the Commonwealth.

Before DREBEN, ROSE and KASS, JJ.

KASS, Justice.

Three errors, the defendant asserts, attended his convictions of armed robbery in a dwelling house and masked armed robbery: (1) improper closing argument by the prosecutor; (2) an error in the jury instructions; and (3) improper limitation on the defense's cross-examination of the chief prosecution witness.

1. Improper closing argument. In his closing argument, the prosecutor asked the jury to infer guilt from the defendant's failure to go to the police to protest his innocence. Defense counsel neither objected to the prosecutor's argument nor requested the trial judge to give curative instructions to the jury. Compare Commonwealth v. Killelea, 370 Mass. 638, 645, 351 N.E.2d 509 (1976); Commonwealth v. Gouveia, 371 Mass. 566, 571-572, 358 N.E.2d 1001 (1976). To the degree that the prosecutor's argument was improper, therefore, it constitutes reversible error only if, examined against the backdrop of the entire case, a miscarriage of justice occurred. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). Commonwealth v. Shelley, 374 Mass. 466, 467, 373 N.E.2d 951 (1978).

In the instant case the defendant took the stand and, while under direct examination by his counsel, testified that he had confronted one Murphy, who was the person who had been robbed, and that the defendant had told him, "I was on probation right now and that if he thought I had anything to do with it for us to go to the station because Bobby (a reference to Robert Mackedon, a mutual acquaintence of the defendant and Murphy) had told me that he had warrants out for me. I said, 'Before I get picked up, let's go to the station now.' " The prosecutor, in final argument, said: "(The defendant) was so concerned about being on probation, and yet he states ... that he did not go to the police. He says he knew he was going to get in trouble, but did he ever go to the police to straighten it out. No. He was arrested nine days later by his own testimony. Did he ever go to the police? He was so concerned because he was innocent and he wanted to straighten it out, but he never went to the police. The police had to come and get him."

A prosecutor's closing argument which invites a jury to draw an adverse inference from a defendant's failure to deny his guilt is improper. Commonwealth v. Haas, 373 Mass. 545, 559, 369 N.E.2d 692 (1977). Commonwealth v. Cobb, 374 Mass. 514, 520-521, 373 N.E.2d 1145 (1978). Commonwealth v. Mosby, --- Mass.App. ---, --- - ---, ^a 413 N.E.2d 754 (1980). See Commonwealth v. Sazama, 339 Mass. 154, 157-158, 158 N.E.2d 313 (1959). Assuming that the prosecutor intended such an invitation, rather than a comment on the implausibility of the defendant's testimony, the case here is substantially less egregious than Commonwealth v. Haas, supra, in which the prosecutor's comments were not about the evidence, but simply invited the jury to draw an adverse inference from Haas' failure to deny his guilt, something the defendant in that case had not testified about and was, of course, not bound to do. Moreover, the defense in Haas sought curative instructions, and they were denied. No curative instructions were requested in the case before us.

This case does not present a prosecutor's argument based upon facts not in evidence or on a misstatement of the evidence. Commonwealth v. Shelley, 374 Mass. at 470, 373 N.E.2d 951. Commonwealth v. Ryan, --- Mass.App. ---, ---, ^b 397 N.E.2d 1128 (1979). Commonwealth v. MOSBY, --- MASS.APP. AT ---, 413 N.E.2D 754.^C Since the defendant had introduced into the case (presumably so that the jury would infer his innocence) his readiness to go to the police "to straighten it out," the prosecutor's reference to that testimony in closing was proper and consistent with the state of the evidence. Commonwealth v. Thurber, --- Mass. ---, ---, ^d 418 N.E.2d 1253 (1981). Even if viewed in more damaging light, i. e., as a generalized comment on the defendant's failure to protest innocence, we doubt, reading the prosecutor's closing as a whole, that the passage complained of caused the closing argument to be unfairly prejudicial. Commonwealth v. Ferreira, --- Mass. ---, --- ----, ^e 409 N.E.2d 188 (1980).

2. Claimed error in the charge to the jury. In the course of his charge, the judge said, "I don't believe there is any serious question as to the fact that there might have been a robbery although that is for you to say whether there was a robbery or not. You people have to make a determination as to whether there was a robbery ...." The judge did not say unequivocably that a robbery had occurred; he said one might have, and that comment was immediately followed with a correct instruction that whether there had been a robbery was for the jury to decide. The instruction, fairly read, does not amount to an instruction to the jury as to what inferences they were to draw. Contrast Commonwealth v. Sneed, 376 Mass. 867, 870, 383 N.E.2d 843 (1978); Commonwealth v. Borges, 2 Mass.App. 869, 869-870, 316 N.E.2d 627 (1974); Commonwealth v. Cote, 5 Mass.App. 365, 369-370, 363 N.E.2d 276 (1977), which illustrate a judge's usurpation of the fact-finding function of a jury. More significant, no objection was made to the judge's instructions, and the defendant's case was argued on the theory that a robbery had, in fact, occurred, but that the defendant was mistakenly implicated. In context and in its entirety, the charge was not misleading. See Commonwealth v. McInerney, 373 Mass. 136, 149, 365 N.E.2d 815 (1977); Commonwealth v. Williams, --- Mass. ---, --- n.17, ...