Commonwealth v. Awad

712 N.E.2d 601, 47 Mass. App. Ct. 139, 1999 Mass. App. LEXIS 687
CourtMassachusetts Appeals Court
DecidedJune 16, 1999
DocketNo. 97-P-2042
StatusPublished
Cited by8 cases

This text of 712 N.E.2d 601 (Commonwealth v. Awad) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Awad, 712 N.E.2d 601, 47 Mass. App. Ct. 139, 1999 Mass. App. LEXIS 687 (Mass. Ct. App. 1999).

Opinion

Greenberg, J.

The only real issue at the defendant’s trial was identification: was he the man who stabbed the female victim in a restaurant parking lot on the evening of November 12, 1994, and ran off with her purse? The evidence linking the defendant to the crime was the victim’s identification of the defendant, in several photo arrays, as the man who robbed her, and her in-court identification of the defendant at a probable cause hearing some seven weeks after the incident. In April of 1996, a judge denied the defendant’s motion to suppress the identification testimony. At trial following the motion hearing, the defendant [140]*140was convicted of armed robbery, assault and battery, armed assault with intent to murder, and armed assault with intent to rob. On appeal the defendant contends, first, that substantial portions of the prosecutor’s closing argument exceeded the bounds of proper argument and, second, that the judge erred in denying his motion to suppress. We reverse the judgments.

According to the evidence presented at trial, the female victim, Pamela Zion, was inside the Aku-Aku, a restaurant in Worcester, at the invitation of the male victim, Edward LaFleur. For three hours they drank, had a meal, and watched stand-up comedians. While there, LaFleur ran into the defendant, with whom he had previously been imprisoned at the Worcester County house of correction. The defendant, short of cash, asked LaFleur to help him out. LaFleur complied. As the evening wore on, however, the defendant made several more entreaties to which Zion took umbrage. She asked the defendant to leave them alone. Thereafter, LaFleur and Zion continued to consume alcoholic beverages. When they left the restaurant at about 10:30 p.m., both were intoxicated.

As they walked across the parking lot to LaFleur’s truck, they were approached by a man, later identified by Zion as the defendant, who demanded money. A scuffle broke out between the two men. Zion, to stay out of harm’s way, headed toward LaFleur’s truck. Then someone, whose face she did not see, grabbed her from behind, stabbed her in the stomach, snatched her purse, and ran off into the night. The episode lasted only several minutes.

Several Worcester police officers were called to the scene. Detective William Hinson was the first officer to arrive. Because emergency medical personnel were treating Zion, he was unable to speak with her. She was taken to the University of Massachusetts Medical Center where she underwent extensive surgery to repair her wounds. Hinson did interview LaFleur that night in the parking lot. There he told his story: the person who had stabbed Zion and taken her purse was a white male, about six feet three inches tall, thin build, wearing eyeglasses, dark skinned, and named “George.”

Based upon this description, as well as information provided to the police by an anonymous caller, Hinson obtained a photograph of the defendant which he added to an array of four other photographs depicting young men wearing eyeglasses.

On the morning of November 14, 1994, Hinson went to the [141]*141intensive care unit of the University of Massachusetts Medical Center, where Zion lay in the recovery room. After Zion looked at the five photographs, he asked whether she could identify the person who stabbed her. She removed the defendant’s photograph and told Hinson that she believed the man depicted in the picture was the assailant but that she was uncertain because of her groggy condition. She did not recall the man wearing glasses at the time of the robbery.

Zion had no difficulty at trial identifying the defendant as the robber. Called by the prosecution, LaFleur recanted both his earlier photographic identification of the defendant as the assailant and his testimony at the probable cause hearing in which he had implicated the defendant. Some time after the events in question, LaFleur had again found himself in prison with the defendant. While there, LaFleur observed the defendant and decided that the defendant’s build and other physical characteristics were incongruent with the man who had confronted him in the parking lot. For his part, the defendant elected not to testify, relying instead on counsel’s cross-examination of Zion to raise questions about the reliability of the identification testimony.

1. The defendant objected at trial to a number of comments in the prosecutor’s closing argument. The prosecutor began by commenting on the strength of Zion’s identification testimony. He then asked the jury to consider why defense counsel, in his closing, cast doubt on the reliability of her testimony. The prosecutor said:

“Now, I am told that some play by Shakespeare — I forget which one, but us lawyers hear it all the time, it is in all of our — lot of our legal stuff — somebody was — created the revolution in England, and the revolutionary said, ‘First thing we do when we take over, kill all the lawyers.’ We’ve always had a bad reputation, us lawyers. I think part of it comes down to you take a set of facts and [see] what you can weave out of any set of facts. There isn’t one case that some argument can’t be made to any jury, and this is a perfect example.”

Within reason, prosecutors may be critical of the tactics utilized by trial counsel in defending a case. See Commonwealth v. Borodine, 371 Mass. 1, 11 (1976), cert, denied, 429 U.S. [142]*1421049 (1977); Commonwealth v. Cheek, 374 Mass. 613, 618 (1978); Commonwealth v. Gonzalez, 22 Mass. App. Ct. 274, 282 (1986). In this case, however, the prosecutor’s comment was inappropriate. Disparaging remarks about the qualifications or motivations of defense counsel, or lawyers in general, are disfavored. It is improper for a prosecutor to state that, unlike the jury, the role of defense counsel is not to seek the truth but rather to create doubts concerning the evidence. Commonwealth v. Hawley, 380 Mass. 70, 82-90 (1980) (prosecutor’s suggestion that because trial counsel witnessed the affidavits of the defendants, he was an active participant in the alleged perjury, was unwarranted). Compare Commonwealth v. Bradshaw, 385 Mass. 244, 271-273 (1982) (viewed in context, prosecutor’s claim that witnesses refused to lie, based on evidence that they may have told a different story to defense counsel, did not imply that trial counsel tried to suborn perjury). Thus, the prosecutor’s attack on the role of defense counsel distracted the jury from its proper role. Unlike the situation in Commonwealth v. Weaver, 400 Mass. 612, 615 (1987), where the prosecutor told the jury that defense counsel’s “special function is not to seek the truth, as you must do . . . [but] to create doubts in your minds,” and upon the defendant’s objection, the judge gave a curative instruction, id. at 616, the judge in this case did not tailor any curative instruction to the jury to deal with the issue.1 See Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).

There was evidence that the defendant’s sister, two days after the robbery, was confronted by the police as she left the house where she lived with the defendant. The officers informed her that they had a warrant for the defendant’s arrest, and they sought permission to enter the house. Despite their request, she refused them entry saying, “I am on my way to work.

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Cite This Page — Counsel Stack

Bluebook (online)
712 N.E.2d 601, 47 Mass. App. Ct. 139, 1999 Mass. App. LEXIS 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-awad-massappct-1999.