NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-13333
COMMONWEALTH vs. KIESON CUFFEE.
Hampden. January 6, 2023. – May 15, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Practice, Criminal, Discovery, Argument by prosecutor. Police, Records. Evidence, Police report, Relevancy and materiality. Constitutional Law, Equal protection of laws.
Indictment found and returned in the Superior Court Department on January 17, 2019.
A pretrial motion for discovery was heard by Jane E. Mulqueen, J., and the case was tried before Francis E. Flannery, J.
The Supreme Judicial Court granted an application for direct appellate review.
Molly Ryan Strehorn for the defendant. John A. Wendel, Assistant District Attorney, for the Commonwealth. Chauncey B. Wood, Kevin S. Prussia, Timothy A. Cook, Asma S. Jaber, & Douglas J. Plume, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. Radha Natarajan, Katharine Naples-Mitchell, Audrey Murillo, Matthew R. Segal, Jessie J. Rossman, & Alexandra Arnold, for American Civil Liberties Union of Massachusetts, Inc., & others, amici curiae, submitted a brief. 2
GAZIANO, J. A Superior Court jury convicted the defendant
of unlawful possession of a firearm, in violation of G. L.
c. 269, § 10 (a). The charge arose from an investigation by two
Springfield police detectives into a report of a shooting in a
crowded residential area, and the subsequent discovery of a
firearm that allegedly had been discarded by the defendant as he
fled from the officers. The primary issue in this appeal is
whether the defendant established that discovery of police
records would be relevant and material, see Mass. R. Crim. P. 14
(a) (2), as appearing in 442 Mass. 1518 (2004), to a claim of
selective enforcement.
Before trial, the defendant filed a motion for discovery of
police reports and field interrogation and observation reports
where the two detectives who participated in his arrest were
either the reporting officer or the assisting officer, for a
period of two years, beginning one year prior to his arrest
through one year after his arrest. The defendant maintained
that the discovery was relevant and material to the question
whether the police investigation was motivated improperly by
race, in violation of his constitutional right to equal
protection of the laws. Finding that Commonwealth v. Long, 485
Mass. 711 (2020), was not applicable to pedestrian stops and
that, even if it were, the defendant's motion for discovery did 3
not meet the standard for relevance under Mass. R. Crim. P. 14,
a Superior Court judge denied the motion. A single justice of
this court subsequently denied the defendant's petition for
extraordinary relief pursuant to G. L. c. 211, § 3. Following
the jury's guilty verdict, the defendant filed an appeal. We
then allowed his petition for direct appellate review.
We conclude that there was no abuse of discretion in the
motion judge's decision to deny the motion for discovery. To be
entitled to such discovery, a defendant must establish "a
threshold showing that the material he [or she] seeks is
relevant to a claim of selective enforcement." Commonwealth v.
Bernardo B., 453 Mass. 158, 169 (2009). See Long, 485 Mass.
at 724-725; Commonwealth v. Betances, 451 Mass. 457, 462 n.6
(2008). The defendant's motion did not meet even this minimal
standard. See Long, supra at 720-721, 725-726.
In addition, the defendant contends that a new trial is
required because the prosecutor's improper closing argument
created a substantial risk of a miscarriage of justice.
Although some of the prosecutor's remarks were improper, the
remarks did not give rise to a substantial risk of a miscarriage
of justice, and do not warrant a new trial.1
1 We acknowledge the amicus briefs of the Massachusetts Association of Criminal Defense Lawyers, and the American Civil Liberties Union of Massachusetts, Inc., Criminal Justice 4
1. Background. a. Day of shooting. On November 8, 2018,
at about 1:34 P.M., Springfield police homicide Detectives
Matthew Longo and Eric Podgurski responded to a ShotSpotter2
activation report of multiple gun shots having been fired in the
vicinity of an address on Grand Street. As they were heading to
that location in their unmarked cruiser, the detectives, who
were wearing plain clothes, turned onto White Street. One block
from the reported location of the shots having been fired, the
officers saw a man, later identified as the defendant, running
in a direction away from the scene (and therefore toward the
detectives). The man was Black, wore his hair in dreadlocks,
and had on a black sweatshirt and dark pants.
As he ran, the defendant was exhibiting an unnatural gait.
He kept his right hand pinned to the right side of his body,
while his left arm swung freely. He also appeared to have a
heavy object tucked in his waistband. Based on their training
and the defendant's proximity to a shooting, the detectives
believed that the defendant was carrying a handgun without a
holster; also based on their training and experience, they
believed that someone carrying an unholstered gun was more
Institute at Harvard Law School, and New England Innocence Project.
2 A "ShotSpotter" system "identifies firearm discharges by sound and directs officers to the general location of the shots." Commonwealth v. Evelyn, 485 Mass. 691, 694 (2020). 5
likely not to have a firearms license. The defendant apparently
noticed the police officers and their vehicle, which looked like
a marked cruiser without the usual police markings or a light
bar. He slowed to a walk, pulled up his hood, and stepped into
a corner convenience store.
The detectives viewed the defendant's behavior as
suspicious. They turned their cruiser around, parked in front
of the convenience store, and followed the defendant inside.
Once inside, they separated so that they could locate and
converge on the defendant from different sides. Within seconds
after entering the store, Longo saw the defendant at the rear of
the premises. At that point, the defendant was wearing a white
shirt. Longo approached, identified himself, and ordered the
defendant to "[s]how [his] hands."
The defendant turned his body away from Longo, in a manner
that shielded his right side from the officer. When Longo
attempted to grab the defendant's right arm, a brief and violent
struggle ensued. Longo saw the defendant holding a gun near his
right hip, and forcefully shoved the defendant face-first into a
metal rack while yelling, "[H]e's got a gun . . . he's got a
gun," and unholstering his service weapon. Podgurski, who was
approaching from a different angle, saw the firearm in the
defendant's right hand. Podgurski sought cover, placed his hand 6
on his weapon, and called for backup. The defendant, bloody
from being shoved into the rack, ran out of the store.
Podgurski and Longo chased after him. They were able to
capture and arrest him at gunpoint a short distance from the
store. The defendant did not have a weapon on his person, and
the officers suspected that he had left the gun in the store,
because they had not seen a gun in his hand while he was running
out the door. Longo returned to the store to search for the
weapon, along with other officers who had arrived to assist.
One of those officers, whom Longo directed to the area of the
struggle, found a .380 caliber Sig Sauer pistol on a shelf
behind some cans that had been knocked over. In addition to a
live round in its chamber, the gun was loaded with a magazine
containing three live rounds of ammunition stamped "[380] Auto
Blazer." At the scene of the shooting on Grand Street,
investigators recovered three spent cartridge casings stamped
"380 Auto Blazer" and one projectile. Officers also found a
black hooded sweatshirt in the doorway of the convenience store,
as well as the defendant's cell phone.
b. Trial. The defendant was tried before a Superior Court
jury on charges of unlawful possession of a firearm, assault by
means of a dangerous weapon (two counts), assault and battery,
and resisting arrest. 7
The defendant pursued a Bowden defense; he argued that
deficiencies in the police investigation created reasonable
doubt. See Commonwealth v. Avila, 454 Mass. 744, 745 n.1
(2009), citing Commonwealth v. Bowden, 379 Mass. 472, 485-486
(1980). In particular, the defendant maintained that the police
conducted a slipshod investigation because they (1) failed to
use available ballistics testing to determine whether the .380
caliber Sig Sauer pistol allegedly possessed by the defendant
had fired the shell casings or the projectile recovered at the
scene; (2) did not test for the presence of gunshot residue on
the defendant or his clothing to determine whether he recently
had fired a gun; and (3) chose not to apply for a warrant to
search the defendant's cell phone for incriminating information
connecting him to the shooting or to the firearm. The defendant
also pointed out that his sweatshirt and cell phone were
destroyed before trial, by a Springfield police officer assigned
to the property and evidence room, who mistakenly believed that
the case had been dismissed.
After a six-day trial, the jury found the defendant guilty
of unlawful possession of a firearm, and not guilty of the other
four counts before them.3 At a bifurcated proceeding, the
defendant pleaded guilty to being an armed career criminal and
3 The Commonwealth entered nolle prosequi on three counts. 8
was sentenced to from eight to ten years in State prison. The
defendant filed a timely appeal, and we allowed his petition for
direct appellate review.
2. Discussion. a. Motion for discovery. Approximately
two years after being indicted, and while his motion to suppress
was pending, the defendant filed a motion for discretionary
discovery, pursuant to Mass. R. Crim. P. 14 (a) (2), seeking
police reports and field interrogation and observation reports
(FIOs), for a two-year period, in which Longo or Podgurski was
the arresting or assisting officer. The discovery was relevant,
he argued, to a determination whether the detectives had been
engaged in discriminatory law enforcement tactics in violation
of the Fourteenth Amendment to the United States Constitution
and arts. 1 and 10 of the Massachusetts Declaration of Rights.
A judge, who was not the trial judge, denied the motion. We
review a decision on a discovery motion for abuse of discretion.
See Commonwealth v. Lowery, 487 Mass. 851, 869-870 (2021).
In an affidavit attached to his motion, defense counsel
averred that the defendant, a Black man, was stopped by two
Caucasian police detectives responding to a report of shots
fired in the area. The justification for the stop, counsel
asserted, was "an alleged observation" by Longo and Podgurski
that the defendant "was running east on the sidewalk," had an
"unnatural gait," and "appeared to be supporting a weighted 9
object on his right side with his right hand." In addition to
stating that Long is inapplicable to pedestrian stops, the judge
determined that, even if it were applicable, "the defendant has
not met the relevance standard under Mass. R. Crim. P. 14 for
the requested documents on this set of facts."4
"A defendant has a right to reasonable discovery of
evidence concerning the totality of circumstances" of alleged
discriminatory law enforcement. Long, 485 Mass. at 725.
Discovery "may include the particular officer's recent traffic
stops and . . . field interrogations and observations." Id.
"[A] defendant may seek such discovery by means of a motion
filed pursuant to Mass. R. Crim. P. 14 (a) (2)." Id. In such a
motion, a defendant may request material and relevant evidence
that is not required under the mandatory discovery provisions.
See Mass. R. Crim. P. 14 (a) (2). The motion "must be
accompanied by 'an affidavit detailing all facts relied upon in
support of the motion and signed by a person with personal
knowledge of the factual basis of the motion.'" Betances, 451
Mass. at 462 n.6, quoting Mass. R. Crim. P. 13 (a) (2). The
affidavit may contain statistical data, factual allegations
4 The judge was without the benefit of our decision in Commonwealth v. Van Rader, 492 Mass. 1 (2023), and therefore concluded that the selective enforcement protections set forth in Long, 485 Mass. at 724-726, and its concomitant discovery obligations, were inapplicable to pedestrian stops and were limited to traffic stops. 10
concerning the stop, or other relevant information. Betances,
supra. In deciding whether to allow the motion, a reviewing
judge must determine "whether the defendant has made a
'threshold showing of relevance.'" Bernardo B., 453 Mass. at
169.5
It is important to bear in mind that, at the discovery
stage, a defendant is not required to establish a prima facie
case of discrimination. See Bernardo B., 453 Mass. at 169. "To
adopt the higher burden . . . would place criminal defendants in
the untenable position of having to produce evidence of
selective enforcement in order to obtain evidence of selective
enforcement." Id.
For example, in Bernardo B., 453 Mass. at 165, a juvenile
moved for discovery of any written policy that had been
promulgated by the office of the district attorney to assist in
deciding whether to prosecute cases involving sexual activity
among children. The juvenile asserted that this information was
relevant to his claim of selective prosecution on the basis of
In other jurisdictions, a defendant's discovery burden in 5
a selective enforcement action has been described variously as requiring "'some evidence' of discriminat[ion]," United States v. Washington, 869 F.3d 193, 220-221 (3d Cir. 2017), cert. denied, 138 S. Ct. 713 (2018); "a colorable basis" for a belief that discriminatory law enforcement occurred, State v. Halsey, 340 N.J. Super. 492, 501 (App. Div. 2001), quoting State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991); or "something more than mere speculation," United States v. Sellers, 906 F.3d 848, 855 (9th Cir. 2018). 11
gender. Id. at 169-170. The motion judge found that the
juvenile's request was supported by evidence that "both the boy
and the three complaining witnesses appeared to have engaged in
'mutually consensual acts of oral sex,' . . . all four children
were under the age of consent, and the district attorney refused
the request of the boy's counsel that the girls be charged with
statutory rape of the boy." Id. at 170. We affirmed the
judge's finding that the requested discovery was relevant and
material to a claim of gender-based selective prosecution. Id.
at 174-175. The request was "properly supported" and not unduly
burdensome to the Commonwealth. Id. at 174.
Here, however, we discern no abuse of discretion in the
judge's decision to deny the defendant's motion for discovery to
support a claim of selective prosecution on the basis of race.
The sum total of the defendant's motion was a statement that
Caucasian police officers stopped a Black man to investigate a
recent shooting. The judge was within her discretion to deny
the motion seeking discovery based only on the defendant's
membership in a protected class. To make a threshold showing of
relevance, more is required.
The Van Rader case, by contrast, provides an illustration
of an initial showing of selective enforcement sufficient to
order discretionary discovery. See Commonwealth v. Van Rader,
492 Mass. 1 (2023). A judge had allowed the defendant's motion 12
for all arrest reports and FIOs submitted by the arresting
officers for a two-year period preceding the incident. Id.
at n.3. The motion was supported by defense counsel's
affidavit averring that a Boston police department study had
found that "Black men in the city of Boston were more likely to
be targeted for police-civilian encounters such as stops,
frisks, searches, observations and interrogations." Id. See
Commonwealth v. Warren, 475 Mass. 530, 539 (2016). In addition,
counsel cited an Associated Press report that "at least 71% of
all street level civilian-police encounters involved minorities
while minorities make up about 25% of the Boston population."
Van Rader, supra. Counsel also averred that, in his experience,
officers assigned to the youth violence strike force
"consistently stop, search and arrest Black and Brown people at
higher rates" than the department-wide statistics. Id. See
Commonwealth v. Dilworth, 485 Mass. 1001, 1001, 1002-1003 (2020)
(single justice properly denied Commonwealth's petition pursuant
to G. L. c. 211, § 3, for relief from discovery order seeking
police department records concerning social media surveillance
where, "[b]ased on preliminary information gathered by the
defense, the targets of this type of investigation are almost
exclusively people of color, and within this are also
disproportionately Black"). 13
b. Prosecutor's closing argument. The defendant also
argues that certain of the prosecutor's remarks were improper,
ad hominem attacks on trial counsel, including counsel's
competence and credibility. The defendant argues that, because
of the extensive number of negative statements about defense
counsel's statements, repeated emphasis of counsel's name, and
disparaging of counsel's purported statements, a new trial is
required. Where, as here, there was no objection to the
challenged statements at trial, we review to determine whether
there was error and, if so, whether it created a substantial
risk of a miscarriage of justice. Commonwealth v. Miranda, 458
Mass. 100, 114 (2010), cert. denied, 565 U.S. 1013 (2011).
A prosecutor is entitled to marshal the facts in evidence,
and any fair inferences drawn from those facts, and to argue
"forcefully for the defendant's conviction" (citation omitted).
Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). Although
a prosecutor may respond fairly to points made during a
defendant's closing argument and may criticize defense tactics,
personal attacks on defense counsel's character and
qualifications, and disparaging personal remarks about counsel,
are not permitted. See Commonwealth v. Teixeira, 486 Mass. 617,
630 (2021); Commonwealth v. Lewis, 465 Mass. 119, 130 (2013).
Here, among other things, the defendant contends that the
"prosecutor interjected his opinion that opposing counsel was 14
not only wrong in her interpretation of the law in this case,
but that he was 'very excited' to take advantage of her
perceived incompetence in future adversarial contests." The
defendant maintains that the prosecutor's "improper argument
misstated the defense attorney's theory of the case by
personally attacking . . . defense counsel's legal acumen."
The challenged statements arose in the context of the
defendant's pursuit of a Bowden defense, which was based, in
part, on the investigating officers' failure to seek a search
warrant for the defendant's cell phone and to test his
sweatshirt for gunshot residue. See Bowden, 379 Mass. at 485-
486. Defense counsel pursued this theme through cross-
examination and, in particular, during an intensive cross-
examination of Longo. Counsel also argued in closing that the
police conducted a "shoddy" investigation, because they did not
examine evidence that might have linked the defendant to the
scene of the shooting or to having fired a gun at that time.
Counsel focused repeatedly on the fact that police had not
sought a warrant to search the defendant's cell phone,
notwithstanding that, as counsel pointed out, such a device "can
pretty much tell you where you are any minute of any day."6
On cross-examination, Longo explained why he had not 6
sought a warrant to search the defendant's cell phone, "I don't believe in this case we had probable cause to get into [the 15
Counsel stated that her cell phone sends her messages indicating
that her "parked car location has been updated." Counsel urged
the jury to disregard Longo's explanation that he had not
applied for a search warrant due to a lack of probable cause to
search the device. Instead, she argued that the detective could
and should have sought a search warrant regardless of his view
of the likelihood that the application would be allowed and the
warrant would issue. Counsel argued, "[I]t's not really . . .
Longo's decision whether or not he has probable cause. He may
feel that he doesn't but he still has every right to request a
search warrant. And then a clerk-magistrate makes the decision
whether or not he has probable cause to go into that cell phone
and take a look."
With respect to the defendant's assertions about the
failure to obtain a warrant, the prosecutor remarked in his
closing:
"[Defense counsel] also said the cell phone could have been done for what's called CSLI [cell site location information] or cell tower location. Now, . . . Longo testified that sometimes you don't necessarily get that if the phone's not being used. And in a back-and-forth between . . . Longo and [defense counsel], they discussed what kind of probable cause you need to get it. A conversation that frankly made me very excited for the next time I have a motion about cell phone search warrants with [defense counsel], because she's trying to tell you that you can just get one for no reason."
defendant's cell] phone, so we never attempted to do that search warrant. I believe it would have been denied." 16
The prosecutor concluded his argument by telling the jury that
reasonable doubt "doesn't mean completely farfetched, tinfoil-
hat-wearing doubt."
The prosecutor was entitled, based on Longo's testimony, to
argue that the police had a legitimate reason not to apply for a
warrant to search the defendant's cell phone. The prosecutor
also was permitted to respond to defense counsel's misleading
argument that a police officer who believed that the facts did
not meet the standard to establish probable cause nonetheless
should apply for a search warrant attesting to the existence of
probable cause. See Commonwealth v. Nelson, 460 Mass. 564, 568-
569 (2011) (affiant seeking search warrant must sign oath under
penalties of perjury that search would be supported by probable
cause). The prosecutor's snide remark that he would be "very
excited" to litigate future search warrant cases with defense
counsel was better left unsaid. "[E]nthusiatic rhetoric, strong
advocacy, and excusable hyperbole[, however,] are not grounds
for reversal" (quotation omitted). Commonwealth v. Wilson, 427
Mass. 336, 350 (1998), quoting Commonwealth v. Sanna, 424 Mass.
92, 107 (1997). "The jury are presumed to have a certain
measure of sophistication in sorting out excessive claims on
both sides." Wilson, supra.
The prosecutor's characterization of the defense as
"tinfoil-hat-wearing" reasonable doubt, on the other hand, 17
crossed the line. See Lewis, 465 Mass. at 132-133, quoting
Commonwealth v. Kozec, 399 Mass. 514, 519 n.9 (1987) ("Defense
counsel's improper argument does not furnish the prosecutor 'a
license to indulge in improper argument'"). "A prosecutor may
address a particular point in defense counsel's closing argument
as a sham, but [the prosecutor] may not characterize the entire
defense as such." Lewis, supra at 130, citing Commonwealth v.
McCravy, 430 Mass. 758, 764 (2000).
In context, the prosecutor's improper remark did not create
a substantial risk of a miscarriage of justice and does not
warrant a new trial. "Remarks made during closing argument are
considered in the context of the entire argument, together with
the evidence presented at trial and the judge's instructions to
the jury." Commonwealth v. Huang, 489 Mass. 162, 180 (2022).
The judge instructed the jury that closing arguments are not
evidence, and that it was their duty to determine the facts and
to apply the facts to the law as explained by the judge. The
judge also properly instructed on the meaning of reasonable
doubt. In light of these instructions, and the strength of the
Commonwealth's case, we are confident that the ill-advised
comment would have had no effect on the jury's verdict.
3. Conclusion. As there was no abuse of discretion in
denying the defendant's motion for discovery and no error
warranting a new trial, the judgment is affirmed. 18
So ordered.