COMMONWEALTH v. SPENCER (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions, after a Superior Court jury trial, of two counts of distribution of a class B substance, subsequent offense.² On appeal, he argues that two aspects of the prosecutor's closing argument, unobjected-to at trial, created a substantial risk of a miscarriage of justice. We affirm.

1. Expression of personal belief. The defendant first argues that the prosecutor improperly expressed his personal belief in the defendant's guilt when he argued, referring to the defendant, that “he knows that he's guilty as sin of these charges” and “knows how guilty he is.” It would be “a serious impropriety for a prosecutor to express a personal belief in the defendant's guilt.” Commonwealth v. Coleman, 366 Mass. 705, 713 (1975). See Commonwealth v. Torres, 437 Mass. 460, 465 (2002) (prosecutor's argument, “He's guilty as charged,” improper statement of personal belief).

Here, however, the prosecutor did not express his own belief, as the defendant claims. The prosecutor merely asked the jury to infer, from the pro se defendant's own closing argument, that the defendant himself believed he was guilty. The jury would have understood that the prosecutor had no personal knowledge of what was in the mind of the defendant, who did not testify. “[W]e are confident that the jury took the criticized argument with a grain of salt” (quotations and citation omitted). Commonwealth v. Bishop, 461 Mass. 586, 598 (2012). “[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole” are not impermissible. Commonwealth v. Costa, 414 Mass. 618, 629 (1993). The jury's acquittal of the defendant on a third charge of distributing a class B substance, which arose out of closely related events, further suggests that the jury were not swayed by any impropriety in the prosecutor's closing. Cf. Commonwealth v. Rock, 429 Mass. 609, 616 (1999); Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 14 (2010).

Also, the judge instructed the jury that they could “not consider and must disregard any statement [by the prosecutor or the defendant] or their statement if any were made of their personal beliefs as to a witness's believability, or credibility, or the weight of the evidence.” This instruction helped to reduce any unfair prejudice caused by the prosecutor's comments. See Commonwealth v. Kater, 432 Mass. 404, 422 (2000) (in assessing effect of assertedly improper argument, court must consider “what specific or general instructions the judge gave the jury which may have mitigated the mistake”). Finally, the Commonwealth's case was quite strong. See id. at 422-423 (considering “whether [any] error, in the circumstances, possibly made a difference in the jury's conclusions”). Any error in the challenged argument did not create a substantial risk of a miscarriage of justice.

2. Vouching. The defendant argues that the prosecutor improperly vouched for a police witness. After the defendant in his closing argument asserted that the witness was lying, the prosecutor asked the jury:

“[I]f [the witness] was going to come in here with some conspiracy to frame [the defendant] or lie, wouldn't [the witness] do a little bit better job lying?

“Wouldn't he make some lie up that suggested that [the defendant] was the one every single time that handed the drugs and took the money, wouldn't he just come in here and say that?

“If he was really out to get [the defendant] or set him up, wouldn't he do a better job lying, tell the best lie that he could?

“I'd suggest to you that he'd do that if he was going to lie and I'd suggest to you that he didn't lie and what he told you on that day was the truth.

“And the truth was [the defendant] participated with [a coventurer] on those three days and sold drugs together.”

“Improper vouching occurs if ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.’ ” Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). Here, the statements the defendant cites were framed as suggestions to the jury and did not constitute such vouching. Instead, the prosecutor's statements properly “argue[d] from the evidence why a witness should be believed” (citation omitted). Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 28, cert. denied, 137 S. Ct. 232 (2016). The statements were “within the prosecutor's right of retaliatory reply” to the defendant's argument that the witness was lying. Kee, supra at 560, quoting Commonwealth v. LeFave, 407 Mass. 927, 939 (1990). There was no error.

Judgments affirmed.

FOOTNOTES

2.   The subsequent offense portions of the charges were tried jury-waived.