Commonwealth v. Lewis

• Decision Date: 14 May 2013
• Docket Number: SJC–11183.
• Citation: 465 Mass. 119,987 N.E.2d 1218
• Parties: COMMONWEALTH v. Joshua LEWIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 119

987 N.E.2d 1218

COMMONWEALTH

v.Joshua LEWIS.

SJC–11183.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Jan. 8, 2013.

Decided May 14, 2013.

Peter M. Onek, Committee for Public Counsel Services, Boston, for the defendant.

Marguerite T. Grant, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

SPINA, J.

The defendant was convicted of assault with intent to murder, carrying a firearm without a license, possession of a firearm with a defaced serial number, and possession of a firearm while not in possession of a firearms identification card. The Appeals Court affirmed the convictions. See Commonwealth v. Lewis, 81 Mass.App.Ct. 119, 960 N.E.2d 324 (2012). We granted the defendant's application for further appellate review. He alleges error in (1) the denial of his motion for a required finding of not guilty as to the charge of assault with intent to murder, (2) the admission of an ambiguous statement he made after being shot by police, (3) the closing argument by the prosecutor, and (4) the judge's instruction on the charge of assault with intent to murder. We reverse the convictions because of the prosecutor's improper closing argument, and remand the matter for a new trial as to all charges.

1. Facts. The jury could have found the following facts. On July 26, 2006, State Troopers George Demos and Gregory Keane, both on duty, planned to meet at a restaurant in Stoughton at 6:30 p.m. for a break. Keane, a canine unit officer, arrived first with his dog. He waited in his cruiser for Demos. As Demos was approaching the restaurant in his cruiser, three occupants in a Nissan Maxima automobile ahead of him were looking back at him and making “excited” movements. The Maxima turned abruptly into the restaurant's parking lot without signaling. The Maxima passed Keane, who noticed that the inspection sticker depicted an “R,” indicating the car had failed its last inspection. The Maxima proceeded to the restaurant's drive-through lane.

Demos stopped his cruiser near Keane's cruiser. They exchanged information about the Maxima and radioed for information about the car. They learned that its owner was at least fifty years old, older than the driver appeared to be. None of the occupants was wearing a seat belt. Trooper Demos followed the Maxima after it left the restaurant. He noticed the occupants were looking back at his cruiser, moving around, and dropping their shoulders. He activated his blue lights and the Maxima stopped. As Demos approached the car he smelled a strong odor of burnt marijuana emanating from its open windows. The occupants continued to move about inside the car.

Demos approached the front passenger door and requested the license and registration from the driver, Peter Le. As Le passed the documents to Demos “his hand was shaking dramatically.” Demos asked why Le was so nervous. Le explained that he was not the registered owner of the Maxima. He said that his uncle, whose last name also was Le, was the owner. Demos said he smelled marijuana. The defendant, who was sitting in the rear seat, said, “I know you do, and we smoked in this car recently, but there is nothing in the car now. You would be wasting your time searching it.”

Demos told the front seat passenger, Ren Pho, who appeared nervous, that he should be wearing a seat belt. He asked Pho for identification, but Pho said he did not have any. He asked Pho to step out of the car and then escorted Pho to the rear of the car where Demos pat frisked him. Demos discovered a black pistol in the waistband of Pho's jeans. He yelled to Keane, who was standing alongside Demos's cruiser, “[G]un, gun.” Demos removed the gun ¹ and threw it away from the Maxima after he “yanked” Pho to the ground. Demos drew his service weapon and pointed it at Pho. The defendant opened the driver's side rear door and started to step outside the car. Demos yelled for him to get back inside, but the defendant fled. As he ran across the street, Demos pursued him with his service weapon in hand, yelling repeatedly for the defendant to stop.

The defendant grabbed his waistband with his right hand and looked back at Demos as he ran. When he reached the parking lot of a business across the street he reached into his right front pocket, pulled out a brownish-silver gun, and began turning toward Demos. Demos yelled, “Drop the gun,” and “Stop or I'll shoot.” While turning, the defendant pointed the gun at Demos. Believing his life to be in danger, Demos fired two rounds at the defendant. The defendant yelled, “You shot me,” but remained standing. He continued to point his gun at Demos, who took cover behind a rock and fired a third shot. It struck the defendant in the leg, and he fell on his back. Demos believed that the defendant's leg was broken, based on the unnatural position in which it was bent behind him after he fell.

Demos kept yelling for the defendant to “drop the gun.” The defendant put his gun partway into his right front pocket and raised his hands. Demos emerged from behind the rock and radioed for assistance and an ambulance. He then handcuffed and pat frisked the defendant. He removed the gun from the defendant's pocket and tossed it aside. Demos administered first aid to the defendant until an ambulance arrived. The defendant was taken to a hospital where he was treated for gunshot wounds to his right forearm, right hip, and left buttock (the last fractured his left leg).

A bystander, Dennis DeNapoli, identified himself to Demos as the president of the Brockton city council. Demos directed DeNapoli to put his foot on the defendant's gun. Trooper Keane retrieved the gun, unloaded it, and secured it in his cruiser. The magazine contained eight live rounds, one of which was hollow point, designed to expand on impact. There was no bullet in the chamber. The gun, a .38 caliber semiautomatic Colt pistol, capable of being fired, had a defaced serial number. No fingerprint was detected on the gun. Only three to six per cent of all firearms examined bear sufficient ridge detail to discern an individual fingerprint.

Le was taken into custody by an off-duty sergeant with the Ashland police department, who happened by and offered his assistance to Trooper Keane. Pho was handcuffed by Keane, who also retrieved Pho's gun, unloaded it, and secured it in his cruiser. Pho's gun, a .38 caliber semiautomatic Beretta pistol, capable of being fired, had twelve live rounds in the magazine. Some were hollow point. When Pho was pat frisked by Keane, he had fifty pills packaged in five plastic bags, containing methamphetamines, a class B controlled substance.² Four baggies containing 34.64 grams (more than one ounce) of marijuana were found in the center console of the Maxima.³ The defendant had a twenty-dollar bill and other bills of unknown denomination on his person.

[465 Mass. 123]2. The defense. The defense theory was that Pho had possession of both guns and Demos took the Colt pistol and planted it near the defendant after the shooting. The defense called Pho, who testified that he had both guns just before the Maxima was stopped. The Beretta pistol, which is completely black, was in his left pocket. The Colt pistol, which is brownish-silver, was in his right waistband. Pho said that, as the Maxima was pulling over, he removed the black Beretta from his pocket and it fell between the passenger door and seat. He said that when Trooper Demos opened the door and told him to step out of the car, the Beretta fell to the ground. At that point Demos yelled, “[G]un, gun.” Demos then pat-frisked Pho and found the Colt pistol, which he seized. The defendant fled, and Demos pursued him with the Colt in his hand. Pho said Demos started shooting as the defendant was running, and the defendant was trying to pull up his pants as he ran. He did not see a weapon in the defendant's hand. Pho admitted on cross-examination that he previously told police that the black gun was his when asked, “Which gun is yours?” He testified that he responded in that manner because police had threatened him with physical harm.

Le also testified for the defense. He said that the defendant was pulling up his pants as he ran from Demos because they were baggy and kept falling down. He claimed the defendant never had a gun in his hand.⁴ Both Pho and Le were impeached by prior convictions, including those described at notes 2 and 3, supra.

A bystander, Sean Donovan, testifying for the defense, said he walked by the defendant twice shortly after the shooting. The first time, he did not see a gun on the ground near the defendant. The second time, he saw an officer standing over the defendant and a gun was on the ground within an arm's length of the defendant.

The defendant introduced his medical records, indicating that a bullet entered his left buttock and broke his left leg. A second bullet entered the back of his right arm near the elbow. A third bullet entered his abdomen near his right hip. Bullet fragments were found in each wound. This, he argued, contradicted Demos's testimony that the last shot, the one to the leg, struck the defendant as he was facing Demos. The defendant also argued that the medical records supported his theory that Demos shot him as he was running, with his back to Demos.

The defendant also argued that Demos ignored Keane's offer of a more prudent course: to let his dog apprehend the fleeing defendant, as the dog had been trained to do. At that point in time, he argued, Demos was pursuing and shooting at a man who, at most, could only have been cited for not wearing a seat belt.

The defendant contended that there was a police conspiracy to cover up Demos's shooting of an unarmed man, the defendant. He based his theory on Demos's failure to file a form SP376, concerning the discharge of an officer's weapon; the absence of any fingerprints on the Colt; gaps in the forty-one minute “turret” tape...