Com. v. Smith

• Decision Date: 11 January 1983
• Citation: 444 N.E.2d 374,387 Mass. 900
• Parties: COMMONWEALTH v. Stephen E. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 374

444 N.E.2d 374

387 Mass. 900

COMMONWEALTH v. Stephen E. SMITH.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 14, 1982.

Decided Jan. 11, 1983.

Willie J. Davis, Boston, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

The defendant was convicted by a jury on February 6, 1980, of murder in the first degree, arson, and armed robbery. He was sentenced to concurrent terms of life imprisonment at the Massachusetts Correctional Institution at Walpole on the murder and armed robbery indictments. A sentence of not more than twenty years nor less than eighteen years at Walpole was imposed on the arson indictment, to be served from and after the life sentences. The defendant filed a notice of appeal. G.L. c. 278, § 33E. He claims that the conduct by the prosecutor during the trial and closing argument was so unfair and prejudicial as to warrant reversal and a new trial. The appeal raises two additional issues, namely, the correctness of the trial judge's charge on alibi and of the trial judge's limitation of cross-examination by the defendant of the Commonwealth's principal witness.

We conclude that the conduct of the prosecutor was of such an improper and prejudicial nature as to require reversal and a new trial. ¹ There is no need to address the remaining issues, which are unlikely to recur at a new trial.

The evidence before the jury was as follows. On November 4, 1978, the defendant was present at a gathering of people at the home of the victim, William E. McArthur, in Waltham. In the defendant's presence, McArthur was asked by another person to sell some drugs. McArthur declined, explaining that he did not sell drugs to strangers. Subsequently, a woman at the party, Janice Kendall, left for a bar in Forest Hills with five people, including the defendant, in the defendant's car. She overheard the defendant say, "What's wrong with him?" "That dirty motherf-----?" "I will get him. His time will come sooner than he thinks. I will blow him away, the little motherf-----." There was a later comment by the defendant about the "bastard." Believing the defendant was referring to McArthur, Kendall responded by orally defending McArthur. Shortly thereafter all the occupants of the vehicle went to a bar and eventually home.

The following day, November 5, the defendant met a long-time friend, Frank Rice, at a bar. Telling Rice about the party and the quantity of drugs and money the defendant believed McArthur to have, the defendant indicated to Rice that he was going to rob McArthur. Later in the same evening of November 5, Bruce Gorham, Richard Fallavollita, and the defendant left in one car, and Rhonda Bennett and Steven Gorham followed in another car for the purpose of going to Waltham to rob McArthur of his drugs and money. The defendant had been drinking liquor and smoking "angel dust." The group stopped at a small grocery store to buy nylon stockings to use as masks.

The only testimony of what happened when the group arrived at McArthur's home in Waltham was the testimony of the Commonwealth's principal witness, Richard Fallavollita, an admitted accomplice. Fallavollita had agreed to testify in exchange for the promise that the Commonwealth would nol-pros the murder charges and recommend a five to fifteen year suspended prison sentence on charges of armed robbery and arson. Fallavollita testified about the plea bargain given in exchange for his testimony.

According to Fallavollita's testimony, only Bruce Gorham, the defendant, and Fallavollita went into the house through an unlocked door. Bruce Gorham already had a knife, and the defendant pulled a knife from the wall. Gorham found McArthur sitting in the bedroom. He stabbed McArthur and demanded the drugs and money. When the victim denied having any substantial amount of drugs or money, the defendant and Gorham continued to abuse McArthur physically. Only $30 and three small packets of heroin were found. At one point, the defendant pulled his mask off, saying that McArthur had recognized his assailants, and suggested they kill him. Fallavollita stated that he protested and did not strike the victim.

The victim was stabbed by the defendant and by Gorham thirty-two times, and his house was set on fire. The charred corpse was found in the bedroom. The medical examiner testified that the victim had died of the stab wounds and not because of the fire. After the stabbings, the defendant and Gorham went to an apartment, where they cleaned themselves and divided between them the $30 and the heroin which they had taken. Witnesses testified that later, on two separate occasions, the defendant boasted that he had stabbed McArthur.

Edward White, a defense witness, presented an alibi for the defendant. White testified that on the evening of November 5 he found the defendant inebriated in a bar and took him home to sleep. According to White, the defendant did not leave until some time between midnight and ten o'clock the next morning. Another witness testified that the defendant was known as a braggart and a heavy user of drugs.

The defendant contends that he was denied due process of law by the trial tactics of the prosecutor that were intended to prejudice and inflame the jury. The defendant also alleges that he was deprived of his constitutional right against self-incrimination by the remarks of the prosecutor in his closing argument that referred to the defendant's failure to take the stand to testify in his own defense. Finally, the defendant asserts that he was denied a fair and impartial trial because of the prosecutor's comments during closing argument that injected his personal belief in the defendant's guilt, that referred to facts not in evidence, that remarked on the consequences of the jury's decision, and that attempted to inflame and prejudice the jury. We consider these claims in the context of our many decisions dealing with alleged prosecutorial misconduct.

We have often warned that we will not tolerate prosecutorial misconduct during trial. "The concern of the court in this regard has been expressed repeatedly." Commonwealth v. Johnson, 372 Mass. 185, 198, 361 N.E.2d 212 (1977).

We stated clearly our views as to the significance we attach to improper prosecutorial conduct in Commonwealth v. Haas, 373 Mass. 545, 557, 369 N.E.2d 692 (1977): "We recognize that it is essential to our present day adversary system that trials be vigorously prosecuted and vigorously defended. We are aware that trials take place neither in academic halls nor under laboratory conditions and that '[g]reat latitude should be permitted to counsel in argument.' Commonwealth v. Pettie, 363 Mass. 836, 840, 298 N.E.2d 836 (1973). Nevertheless, final arguments cannot be freewheeling, extemporaneous verbal slugfests. Lawyers shall not and must not misstate principles of law nor may their summations infringe or denigrate constitutional rights. Advance preparation would eliminate from our consideration most aspects of closing arguments constantly being urged as improper. We remind counsel that we shall not tolerate misconduct by lawyers during the persuasion phase of a criminal trial " (emphasis added).

A review of cases decided both before and after the trial of this case should put all on notice that prosecutorial misconduct unnecessarily risks reversal of a conviction that otherwise might have been affirmed--all at great cost to the Commonwealth as well as to the defendants. See Commonwealth v. Hoppin, 387 Mass. 25, 31-32, 438 N.E.2d 820 (1982); Commonwealth v. Drayton, 386 Mass. 39, 52, 434 N.E.2d 997 (1982); Commonwealth v. Ferreira, 381 Mass. 306, --- - ---, 409 N.E.2d 188 (1980) Mass.Adv.Sh. (1980) 1861, 1872-1873; Commonwealth v. Hawley, 380 Mass. 70, --- - ---, 401 N.E.2d 827, Mass.Adv.Sh. (1980) 625, 642-645; Commonwealth v. Roberts, 378 Mass. 116, 117-118, 389 N.E.2d 989 (1979); Commonwealth v. O'Brien, 377 Mass. 772, 778, 388 N.E.2d 658 (1979); Commonwealth v. Earltop, 372 Mass. 199, 205-207, 361 N.E.2d 220 (1977) (Hennessey, C.J., concurring). "That prosecutors are frequently not familiar with the boundaries of argument, or choose to ignore them" is clear when it appears that the simple precaution of careful advance preparation suggested on several occasions has not been invoked. Commonwealth v. Earltop, supra 372 Mass. at 205, 361 N.E.2d 220. See Commonwealth v. Haas, supra. We turn to consider the defendant's claims of prosecutorial error.

1. Trial tactics. The defendant has three complaints regarding the prosecutor's trial tactics which he contends exceeded the permissible limits of examination by seeking to prejudice and inflame the jury. First, during the direct and redirect examination of Janice Kendall, and despite the repeated objections of the defendant, the prosecutor asked eleven questions which emphasized vulgar statements the defendant had made only once. Second, the prosecutor, in another question, characterized as "threats" the conversation that Janice Kendall had overheard. However, there was no testimony of "threats," and the trial judge finally directed the prosecutor to confine himself to language used by the witness. The third and most serious charge raised by the defendant of improper trial tactics involved the cross-examination of a defense witness. The witness, who was not being asked to authenticate the exhibit, was shown a photograph. After some difficulty the witness identified the object in the photograph as a dead body. At this point, the prosecutor interjected, "Looks like a piece of charred meat, doesn't it?" ² The judge denied the defendant's motion for a mistrial but struck the remark.

The Commonwealth contends that, although the prosecutor's last remark admittedly went far beyond permissible boundaries, no new trial is warranted because of the overwhelming evidence of the defendant's guilt. Furthermore,...