Opinion
10-P-1310
02-22-2012
COMMONWEALTH v. BENJAMIN A. BROWN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in Boston Municipal Court, the defendant was convicted of unlawful possession of a firearm and unlawful possession of a loaded firearm. G. L. c. 269, § 10(a), (n). On appeal, the defendant argues that (1) his motion to suppress should have been allowed because reasonable suspicion did not justify what the defendant characterized as a stop, which ultimately led to the discovery of the firearm; and (2) there was prosecutorial error in the closing argument where the prosecutor argued that the theory of the defense case was that the officers 'framed' the defendant, even though there was no such evidence or argument put forth by defense counsel.
The defendant was also convicted of unlawful possession of ammunition, However, that ammunition conviction is duplicative of unlawful possession of a loaded firearm. Commonwealth v. Johnson, 461 Mass. 44, 51-54 (2011). Accordingly, that conviction is vacated.
1. Motion to suppress. The following background is summarized from the motion judge's findings and uncontroverted evidence at the suppression hearing. On the morning of June 2, 2009, police officers Griffin, Traft, and Bowden were traveling on Neponset Avenue in Dorchester in an unmarked cruiser. The officers saw the defendant, whom they knew from prior interactions, walking in the opposite direction on the sidewalk in front of a school. The officers turned the cruiser around and drove back toward the defendant. At this point, the officers observed the defendant bend down behind a gray car that was parked on the street.
The officers exited their cruiser and approached the defendant. Bowden and Traft walked toward the defendant directly, while Griffin walked toward the rear of the car. As Griffin approached, he observed the defendant crouched near the rear tire on the passenger side of the car with his right hand extended underneath it. The defendant then stood up and began to move away from the car. Traft said, 'What's up Benjamin?' Griffin dropped down to look under the car, where he found a Smith & Wesson .22 caliber rifle containing two live rounds. Approximately five seconds had passed since the officers exited the cruiser. The officers arrested the defendant.
The defendant's argument that he was stopped without reasonable suspicion is not availing. First, this encounter between the defendant and the police was not a stop or seizure, but rather an investigatory inquiry. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (police do not effectuate stop merely by asking questions); Commonwealth v. Barros, 49 Mass. App. Ct. 613, 616-618 (2000), S. C., 435 Mass. 171 (2001) (request to speak with defendant on the street did not constitute a stop so as to implicate constitutional rights). See also Commonwealth v. Gomes, 453 Mass. 506, 510 (2009) (no stop where police got out of car and quickly approached defendant). We conclude the motion judge correctly determined that when the officers exited the cruiser, approached the defendant and asked the question, 'What's up, Benjamin?' that was only an investigatory inquiry. The subsequent plain view discovery of the gun under the car was not subject to suppression.
2. Prosecutor's closing argument. During closing argument, the prosecutor stated the following:
'I would suggest there are a few things that you should consider when you're evaluating whether or not you think that [the] officers lied to you. Consider the following, what motive do they have to lie. Did you hear anything about any sort of animosity towards [the defendant]? Any prior experience[s] that were negative in any way? What would cause them to lie? And if they wanted to frame [the defendant] there are really two more things that you should consider. Why did they pick this charge of all charges, possession of a firearm? Why not say, we chased [the defendant] down into an alley and he drew this firearm and pointed it at us and in fear for our safety we had to drawn [sic] down on him (Inaudible) and we had to wrestle the gun away from him. Assault on a police officer with a dangerous weapon. If you're going to frame somebody, why are you framing him for a possession charge? Why not go all the way? And if you're going [to] frame somebody, why not say you just saw it in his hand? What's wrong with Officer Griffin? He wants to frame Benjamin Brown, but he won't tell you that he saw the gun in his hand? He tells you that he just saw a hand coming away from where the gun was. Why not go that extra step and actually give you something so Mr. Booker can't say well, nobody saw it in his hand .... Why make any of this up?' (Emphasis added.)
Defense counsel explicitly objected to this framing argument by the prosecutor, stating his objection as follows, '[t]here were references to framing, which is not a word that I ever used and it's not fairly inferrable from anything I said, that anybody was trying to frame Mr. Brown. That was highly improper and I object to that.'
We conclude there was prejudicial error in the prosecutor's framing remark, for at least two reasons.
First and foremost, no theory of framing was advanced by the defense -- neither by evidentiary development in defense counsel's examinations of the witnesses nor by reference in defense counsel's closing. The framing argument then was a conjuring up of a prejudicial straw man by the prosecutor without any basis in the evidence or defense argument. See Commonwealth v. Kozec, 399 Mass. 514, 522 (1987) (arguments unsupported by the evidence are improper). See also Johnson v. United States, 347 F.2d 803, 805 (D.C. Cir. 1965) (elementary that counsel may not premise arguments on evidence which has not been admitted).
Second, the framing argument was a form of improper witness vouching by the prosecutor. The framing remark inappropriately suggested to the jury 'that the only possible explanation for the congruence between the testimony of various prosecution witnesses was either that these witnesses were completely truthful and accurate or that they conspired to perpetrate a gross lie, an obviously implausible suggestion' that was neither supported by the record evidence nor argued by defense counsel. Commonwealth v. Thomas, 401 Mass. 109, 116 (1987) (finding such conjecture 'beyond the bounds of proper argument').
Moreover, despite defense counsel's specific objection, the trial judge failed to instruct the jury that the closing arguments of counsel were not evidence. See and compare Commonwealth v. Villalobos, 7 Mass. App. Ct. 905 (1979). Thus, the effect of the prosecutorial error was not ameliorated by any specific curative instruction.
In light of our disposition, we need not address the other challenges to the prosecutor's closing.
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The judgment on the charge of unlawful possession of ammunition is vacated as duplicative, and the verdict is set aside. The judgments on the charges of unlawful possession of a firearm and unlawful possession of a loaded firearm are reversed, and the verdicts are set aside.
So ordered.
By the Court (Berry, Brown & Grainger, JJ.),