Commonwealth v. Griffith

702 N.E.2d 17, 45 Mass. App. Ct. 784, 1998 Mass. App. LEXIS 1234
CourtMassachusetts Appeals Court
DecidedNovember 20, 1998
DocketNo. 97-P-0422
StatusPublished
Cited by14 cases

This text of 702 N.E.2d 17 (Commonwealth v. Griffith) 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. Griffith, 702 N.E.2d 17, 45 Mass. App. Ct. 784, 1998 Mass. App. LEXIS 1234 (Mass. Ct. App. 1998).

Opinion

Kass, J.

It was not a good start. Asked to proceed with his opening, the prosecutor1 began: “Thank you. Ladies and gentlemen, I’d like to introduce Paul Griffith, an individual who peddles drugs here in the City of Springfield, commonly referred to as a drug dealer.” That was rather much to say about a defendant charged with a single count of distributing marijuana (G. L. c. 94C, § 32C), as compared with trafficking in marijuana. (G. L. c. 94C, § 32E). We inquire whether an aggregation of excesses by the prosecutor, most not objected to by the defense, deprived the defendant of a fair trial.

Having suggested to the jury in his opening that the defendant Griffith was a career criminal, i.e., that he committed prior bad acts and must be guilty of the crime now charged, the prosecutor proceeded to enlist the jury as an arm of the prosecution. The prosecutor did this by describing the details of the drug [785]*785sale, as he proposed to prove them, and then saying about the buyer: “[L]uckily for all of us the man who just bought something from Mr. Griffith is stopped. He’s stopped and on his person is a bag of marijuana.”

Defense counsel did not object to these remarks, although when his turn to open came, defense counsel made the observation that the case was not about calling somebody names but about a man charged with a criminal offense. Failure to object to prosecutorial overreaching was characteristic of the conduct of the defense. There were objections to but two of seven instances in which the prosecutor stepped over the boundaries of permissible advocacy. We thus review for a substantial risk of a miscarriage of justice. Commonwealth v. Bourgeois, 391 Mass. 869, 884 (1984).2 When proper objections have been taken in some instances, unobjected-to faults may be cumulated and weighed with those claims of error that have been adequately preserved. Commonwealth v. Gallego, 27 Mass. App. Ct. 714, 719 n.3 (1989). Commonwealth v. Kines, 37 Mass. App. Ct. 540, 543 (1994). Compare Commonwealth v. Bourgeois, 391 Mass. at 885. We conclude that the multiple instances of prosecutorial misconduct, see Commonwealth v. DeMars, 42 Mass. App. Ct. 788 (1997), S.C., 426 Mass. 1008 (1998), when aggregated, deprived the defendant of a fair trial and that he is entitled to a new one. As to the prejudicial impact of combined prosecutorial excesses, see also Commonwealth v. Borodine, 371 Mass. 1, 11-12 (1976), cert. denied, 429 U.S. 1049 (1977); Commonwealth v. Burke, 373 Mass. 569, 577 (1977).

The instances of prosecutorial overreaching. In addition to the inflammatory start of his opening, the prosecutor described evidence he was not in a position to introduce. He stated that Griffith twice handed objects to persons in exchange for money when, in fact, the government’s witnesses never saw money changing hands. He also stated as matter of fact that the defendant had been involved in two drug transactions, although the prosecutor knew that he could not prove the first because [786]*786the police saw no drags, found no money on the defendant, and had not been able to stop the putative buyer.

On two occasions, the prosecutor asked a police officer who had Griffith under surveillance what the officer, in his opinion, had seen. The officer on one occasion answered: “It was a marijuana transaction.” On the second occasion he replied: “I observed another marijuana transaction.” The trouble with those answers is that they offer an opinion about the ultimate question that the jury were to decide. The answers were of a sort disapproved in Commonwealth v. Woods, 419 Mass. 366, 374-375 (1995), and Commonwealth v. Rivera, 425 Mass. 633, 645-646 (1997).3 Standing alone, the twice-committed error was not consequential because the defendant did not dispute that the police had observed a drag transaction but insisted that he had played no part in it. Included as part of the conclusion with which the prosecution began, that the defendant was a career street dealer, the unqualified statements of marijuana sales having taken place may have had some piling on effect.

Griffith took the witness stand in his defense to say that while he was hanging around both in and outside the Charm Café on State Street in Springfield, he did not participate in drag selling, although he admitted referring two men who asked to buy drags to a man on a bicycle who Griffith figured might be selling. On cross-examination, the prosecutor, over objection, asked the defendant: “And you looked at him [Sergeant John Delaney] and you said, ‘Hey, John, you don’t have anything on me. Leave me alone.’ ” What was the matter with that question was that the prosecutor, as he conceded during a colloquy at side bar, had no evidence that Griffith had sáid such a thing.4 Yet putting the question and having Griffith deny it ran the risk of suggesting to the jury that Griffith was on a first name basis with Sergeant Delaney, was conscious of guilt, but confident that no [787]*787evidence existed to prove it. A lawyer may not attempt to communicate by innuendo by asking questions that the lawyer expects to be answered in the negative. Commonwealth v. White, 367 Mass. 280, 284 (1975). Commonwealth v. Fordham, 417 Mass. 10, 20-21 (1994). Commonwealth v. Capone, 39 Mass. App. Ct. 606, 611 (1996). The Commonwealth argues that Griffith, after denying the “you don’t have anything on me” statement, amplified his response with something equally damaging to him: “I said, ‘What are you all trying to do, try to plant something on me.’ ” The latter statement, however, expresses a claim of innocence rather than a consciousness of guilt, and, more to the point, would not have been made but for the prosecutor’s improperly loaded question.

In closing, defense counsel pressed the jury to find that the government had proved no more than that Griffith was present at the drug sale. The prosecutor began his closing thus:

“Were we listening to the same case? Were we in the same courtroom with the defendant? I mean, September 3rd [sz'c] of 1993, ladies and gentlemen, without any doubt at all the defendant was there and he was helping someone deal drugs. . . . As I told you at the beginning of the trial, Mr. Griffith is a common street level dealer, trying to earn a few bucks with the man on the bike and it’s as simple and straightforward as that. . . . But you see, the entrepreneur, the little businessman, Griffith, is trying to earn some extra money, so as I told you at the beginning of all of this, it is not as if he can hold out a sign and tell all his customers that he is open for business and welcome, come on in.”

Hyperbole in closing arguments is hardly rare, and juries should be given credit for the ability to filter out oratorical flourishes. Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). Commonwealth v. Murchison, 418 Mass. 58, 60 (1994). Nonetheless, the beginning of the closing had a dogmatic “take it from me” quality that the cases have declared to be impermissible. Commonwealth v. Coleman, 366 Mass. 705, 713-714 (1975). Commonwealth v. Villalobos, 7 Mass. App. Ct. 905 (1979). The remarks about Griffith being an entrepreneur and common street dealer were unsupported by the evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
702 N.E.2d 17, 45 Mass. App. Ct. 784, 1998 Mass. App. LEXIS 1234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-griffith-massappct-1998.