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COMMONWEALTH v. Kenneth GRANDISON.
The defendant was convicted of possession of a Class B controlled substance, and resisting arrest under G.L. c. 94C, § 34D, and G.L. c. 268, § 32B, respectively. He was found not guilty of assault and battery on a police officer, under G.L. c. 265, § 13D. On appeal, the defendant raises several issues: (1) whether the motion judge erred in denying his motion to suppress evidence of possession of crack cocaine; (2) whether there was insufficient evidence to convict him of (a) resisting arrest and (b) possession of crack cocaine; (3) whether he is entitled to a new trial because the charge of resisting arrest was predicated on distinct factual episodes and because, in the absence of unanimity instructions to the jury, there was insufficient evidence to sustain a conviction based upon both episodes; and (4) whether the prosecutor's closing argument so prejudiced the defendant that it created a substantial risk of a miscarriage of justice. We transferred this case on our own motion from the Appeals Court and now affirm the convictions. We discuss the facts as they are pertinent to the specific issues raised.
1. Motion to suppress drug evidence. The essential facts before the motion judge were as follows.1 At approximately 9 P.M., on November 12, 1997, two Springfield police officers were on patrol in the area of Worthington and Federal Streets, known as a high crime area for illegal drug activity. The officers observed the defendant, a black male wearing a red puffy winter jacket, who, on seeing the police cruiser, did an immediate “about face” and started walking in the opposite direction. The officers testified that, when the defendant turned to walk the other way, they became suspicious and decided to use their cruiser to follow the defendant as he walked into a driveway.
When the police followed the defendant, the defendant again reversed direction, so the officers turned on the cruiser's high beams and kept following the defendant, who then walked into an alley. The officer then turned on the cruiser's bright “alley lights.” One officer (Peck) then saw the defendant appear to spit and saw a “small projectile” come out of the defendant's mouth and fall to the ground a few feet away from him. The officer testified that it is common for individuals to hide crack cocaine by carrying it in their mouths and then to spit it out or swallow it to avoid detection by police.
At that point, the officer yelled to the defendant to stop. The defendant stopped and the officers got out of the cruiser and approached the defendant.2 One officer asked the defendant what he was doing and what he spit out. The other officer, given a general direction by his partner, searched the ground near the defendant and recovered a small, off-white item, wrapped in plastic, that the officers believed to be crack cocaine. They placed the defendant under arrest.
The defendant argues that the crack cocaine was obtained as the result of an illegal seizure and thus the motion judge erred in denying the defendant's motion to suppress the evidence. The motion judge, who has since retired, did not make any explicit factual findings. We have said that it is desirable and prudent to make a record of the facts, but a failure to do so is not reversible error. See Commonwealth v. Forrester, 365 Mass. 37, 45, 309 N.E.2d 190 (1974). See also Commonwealth v. Gaulden, 383 Mass. 543, 547, 420 N.E.2d 905 (1981), and cases cited. Absent explicit findings, we “analyze [ ] the record to see if the findings implicit in the judge's ruling are supported.” Id., citing Commonwealth v. Williams, 378 Mass. 217, 224 n. 4, 391 N.E.2d 1202 (1979).
The “judge's denial of the defendant's motion [to suppress] implies resolution of factual issues in favor of the Commonwealth.” Commonwealth v. Lanoue, 392 Mass. 583, 586 n. 2, 588, 467 N.E.2d 159 (1984), citing Commonwealth v. Forrester, supra at 45, 309 N.E.2d 190. Commonwealth v. Quigley, 391 Mass. 461, 463, 462 N.E.2d 92 (1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86 L.Ed.2d 258 (1985). Moreover, in reviewing a judge's ruling on a motion to suppress, an appellate court “may not rely on the facts as developed at trial” even where the testimony differed materially from that given at trial. Commonwealth v. Garcia, 34 Mass.App.Ct. 386, 391-392, 612 N.E.2d 674 (1993), citing Commonwealth v. Singer, 29 Mass.App.Ct. 708, 709 n. 1, 564 N.E.2d 1037 (1991).
Here, the testimony of Officer Peck, one of the arresting officers, was the only evidence presented at the motion hearing. The defendant argues that there was a stop when the police officers followed him into the alley, and that there was no reasonable suspicion, at that point, to justify the stop. We do not agree.
It is true that law enforcement personnel must have reasonable suspicion for pursuit to begin. See Commonwealth v. Watson, 430 Mass. 725, 731, 723 N.E.2d 501 (2000), and cases cited. But “pursuit begins only when action by police would ‘communicate[ ] to the reasonable person an attempt to capture or otherwise intrude on [an individual's] freedom of movement.’ ” Id., quoting Commonwealth v. Williams, 422 Mass. 111, 116, 661 N.E.2d 617 (1996). “It occurs when police attempt to stop an individual ‘to effectuate a threshold inquiry.’ ” Commonwealth v. Watson, supra, quoting Commonwealth v. Williams, supra at 117, 661 N.E.2d 617. “Following or observing someone without more, such as using a siren or lights, attempting to block or control an individual's path, direction, or speed, or commanding the individual to halt, is not pursuit.” Commonwealth v. Watson, supra, quoting Commonwealth v. Williams, supra at 116-117, 661 N.E.2d 617. See Commonwealth v. Stoute, 422 Mass. 782, 788-789, 665 N.E.2d 93 (1996), discussing Commonwealth v. Thibeau, 384 Mass. 762, 764, 429 N.E.2d 1009 (1981). Following someone for the purpose of surveillance is not pursuit. Commonwealth v. Watson, supra, quoting Commonwealth v. Williams, supra at 116, 661 N.E.2d 617.
In this case, pursuit and a stop did not occur until Officer Peck commanded the defendant to stop and emerged from the cruiser.3 Before that time, the police officers did not activate the cruiser's blue lights, flashers, or sirens. See Michigan v. Chesternut, 486 U.S. 567, 575, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); Commonwealth v. Rock, 429 Mass. 609, 611, 710 N.E.2d 595 (1999). We conclude that a reasonable person would have believed he was free to leave at the time: the record here does not support that the police blocked the defendant's course or otherwise controlled the direction or speed of his movement. Michigan v. Chesternut, supra. There was no evidence that the defendant was trapped in the alley.4 We leave open the question whether shining bright alley lights on citizens could in some circumstances be a stop.
In the alternative, the defendant argues that, even if there was no pursuit, and the investigative stop did not occur until the police officer told the defendant to stop, there still was insufficient evidence for reasonable suspicion. We do not agree.5
A threshold inquiry is justified “where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime.” Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). Reasonable suspicion may not be based on good faith or a hunch, but on specific, articulable facts and inferences that follow from the officer's experience. See Commonwealth v. Watson, supra at 729, 723 N.E.2d 501, citing Commonwealth v. Kennedy, 426 Mass. 703, 710-711, 690 N.E.2d 436 (1998); Commonwealth v. Williams, supra at 116, 661 N.E.2d 617, citing Commonwealth v. Willis, 415 Mass. 814, 616 N.E.2d 62 (1993). “The test is an objective one.” Commonwealth v. Helme, 399 Mass. 298, 301, 503 N.E.2d 1287 (1987), quoting Commonwealth v. Silva, supra at 406, 318 N.E.2d 895. Just being in a high crime area is not enough to justify a stop, see Commonwealth v. Cheek, 413 Mass. 492, 496, 597 N.E.2d 1029 (1992), nor is walking away from police officers. See Commonwealth v. Stoute, supra at 788, 665 N.E.2d 93, discussing Commonwealth v. Thibeau, supra at 763-764, 429 N.E.2d 1009 (no reasonable suspicion where defendant sees police officers and turns away on his bicycle). However, “[s]eemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry.” Commonwealth v. Watson, supra at 729, 723 N.E.2d 501, citing Commonwealth v. Alvarado, 420 Mass. 542, 549, 651 N.E.2d 824 (1995), and cases cited. “An attempt to avoid contact with or observation by the police ․ may be considered along with other facts․” Commonwealth v. Wren, 391 Mass. 705, 708 n. 2, 463 N.E.2d 344 (1984), and cases cited.
In this case, the officers stopped the defendant who was present in an area with a high incidence of illegal drug activity, only after he walked away after seeing the police, and, when under surveillance, again changed direction before one officer saw the defendant spit a projectile out of his mouth. Based on the officers' knowledge that individuals hide illegal drugs in their mouths, these facts, taken together were enough evidence to support reasonable suspicion that the defendant was carrying illegal drugs.6
2. Sufficiency of evidence. The defendant argues that there was insufficient evidence to convict him of either resisting arrest or possession of cocaine.7 We view the evidence at trial in the light most favorable to the Commonwealth, and “determine ‘whether ․ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Lodge, 431 Mass. 461, 465, 727 N.E.2d 1194 (2000), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). See Commonwealth v. Basch, 386 Mass. 620, 622 & n. 2, 437 N.E.2d 200 (1982); Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979). Circumstantial evidence is sufficient to find someone guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence “need only be reasonable and possible; it need not be necessary or inescapable.” Commonwealth v. Lodge, supra, quoting Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977).
Based on the evidence at trial, the jury could have found the same facts as described in the motion to suppress, supra, plus the following.8
In effecting the arrest, one of the officers tried to handcuff the defendant. The defendant, who was shouting obscenities, stiffened his arms and, for a second, was able to pull one of his arms free. The other officer came to aid his partner. In the meantime, two other officers had arrived at the scene and aided in getting the defendant's arms behind his back so that he could be handcuffed.9 The defendant never complied with a request to put his hands behind his back and appeared agitated.
The police officers then took the defendant to the police station's booking area where a booking officer tried to obtain the defendant's information. The booking was caught on a videotape activated by the booking officer. The defendant was shouting obscenities and would not cooperate, so the booking officer ordered him to be removed.
As the police officers were trying to get the defendant into a nearby cell, a scuffle took place.10 One officer ended up on the ground and another managed to push the defendant into the cell, sustaining a bite to his arm in the process.11
a. Resisting arrest. The Commonwealth argues that the resisting arrest charge included the defendant's behavior at two distinct times, at the scene and at the police station. We address each event.
i. Resisting arrest at the scene. The defendant argues that when the police officers tried to handcuff him, because he merely stiffened his arms and broke free of the officer's grip for a second, he is not guilty of resisting arrest because the plain language of G.L. c. 268, § 32B, requires either using or threatening to use physical force or using means to create a “substantial risk of causing bodily injury.” 12
We do not agree with the defendant's contention that the officers' characterization of the defendant's behavior as “resisting” or “struggling” is mere opinion. At the scene, the defendant would not bend his arms to allow the handcuffs to be placed on him and he managed to pull his arm away for a few seconds. It took four police officers to handcuff him. These actions fall within the statutory language. The defendant used “any other means” that created a “substantial risk of causing bodily injury” to the police officers (emphasis added). The kind of resistance the defendant perpetrated could have led to one of the officers being struck or otherwise injured, especially at the moment he freed his arm. There was no substantial risk of a miscarriage of justice because a rational jury could have concluded that the defendant's behavior did create such a risk beyond a reasonable doubt.13
ii. Resisting arrest at the police station. The Commonwealth argues that resisting arrest also could include the defendant's behavior at the police station because the arrest was not complete until the defendant was placed in a cell. This argument lacks merit. An arrest occurs where there is (1) “an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.” Commonwealth v. Cook, 419 Mass. 192, 198, 644 N.E.2d 203 (1994), quoting Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778, 434 N.E.2d 185 (1982), rev'd on other grounds, 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). An arrest can occur even if the police do not make a formal arrest. See Commonwealth v. Sanderson, 398 Mass. 761, 766-767, 500 N.E.2d 1337 (1986) (detaining defendant for approximately forty minutes in presence of six State troopers and one police dog is an arrest, not Terry stop).
Here, the defendant was actually seized and detained when the police handcuffed him while he was on the street. A reasonable person would have believed he was under arrest. Thus, the defendant is correct when he argues that the events that occurred at the police station should not have been included in the charge of resisting arrest.14
b. Possession of crack cocaine. The defendant argues that no jury could have rationally concluded that the crack cocaine the officer found on the ground near the defendant was the same item the defendant allegedly spit out. We disagree.
One of the officers testified that his partner indicated where he saw the defendant spit out the object. The officer said that he shined his flashlight on the indicated area and retrieved the crack cocaine. Without belaboring the point, it was a reasonable and possible inference for the jury to conclude, beyond a reasonable doubt, that the crack cocaine was the “small projectile” the officer saw the defendant spit out. The government need not exclude every possible hypothesis embracing innocence to prove its case. See Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989).
3. Validity of resisting arrest conviction. The defendant claims that, even if the statute includes his resistance to the police officers at the scene, his conviction of resisting arrest is invalid because the Commonwealth improperly included the events that transpired at the police station in the charge to the jury. The defendant argues that, even though he did not request either a specific unanimity jury instruction 15 or separate verdict forms, a substantial risk of a miscarriage of justice was created.
We conclude, however, that this error did not create a substantial risk of a miscarriage of justice. Where, as here, a defendant does not request a specific unanimity instruction nor timely object to its absence, we have determined that no substantial risk of a miscarriage of justice exists where “the evidence satisfies each element of the statute and is sufficient to defeat a motion for a required finding of not guilty.” Commonwealth v. Keevan, 400 Mass. 557, 567, 511 N.E.2d 534 (1987), citing Commonwealth v. Comtois, 399 Mass. 668, 676-677, 506 N.E.2d 503 (1987). But see Commonwealth v. Conefrey, 420 Mass. 508, 512-514, 516 n. 11, 650 N.E.2d 1268 (1995) (conviction reversed where judge denied request for unanimity instruction and defendant timely objected). As discussed, supra, there was enough evidence of the defendant's behavior at the scene to sustain the denial of the defendant's motion for a required finding of not guilty of resisting arrest.
4. Prosecutor's closing. The defendant argues that the prosecutor's closing argument was prejudicial. He claims that the prosecutor exceeded the bounds of proper argument by impugning the integrity of the defense,16 vouching for the credibility of the police officers,17 and expressing a personal opinion concerning the weight of the evidence.18 The defendant did not object and thus, the standard of review, “changes to the defendant's detriment.” Commonwealth v. Kozec, 399 Mass. 514, 518 n. 8, 505 N.E.2d 519 (1987), citing Commonwealth v. Fitzgerald, 376 Mass. 402, 416, 381 N.E.2d 123 (1978). We must determine whether the closing created a substantial risk of a miscarriage of justice. We appraise the closing argument as a whole as well as the judge's instructions to the jury. See Commonwealth v. Tuitt, 393 Mass. 801, 811, 473 N.E.2d 1103 (1985), citing Commonwealth v. St. Pierre, 377 Mass. 650, 665, 387 N.E.2d 1135 (1979). Furthermore, “[t]he absence of objection by defense counsel during or after argument may provide some guidance as to whether a particular argument was prejudicial in the circumstances.” Commonwealth v. Kozec, supra, citing Commonwealth v. Toro, 395 Mass. 354, 360, 480 N.E.2d 19 (1985).19
In reviewing the prosecutor's argument as a whole and the judge's instructions to the jury, we determine there is no substantial risk of a miscarriage of justice because, with one exception, there was no error. See Commonwealth v. Tuitt, supra at 811, 473 N.E.2d 1103; Commonwealth v. Thomas, 401 Mass. 109, 113, 514 N.E.2d 1309 (1987).20
It was improper for the prosecutor to suggest to the jury that it was impermissible for defense counsel to question the veracity of the police officers (“how dare they”). That is the essence of cross-examination. But that passing comment, not objected to, without more is unlikely to have made a difference to the jury. See Commonwealth v. Bradshaw, 385 Mass. 244, 277, 431 N.E.2d 880 (1982) (jury can be expected to take closing argument “with a grain of salt”). The remaining challenged portions of the closing were either fair responses to the defendant's closing argument, supported by inferences from the evidence, or permissible hyperbole. See Commonwealth v. Chavis, 415 Mass. 703, 713, 616 N.E.2d 423 1993), citing Commonwealth v. Simmons, 20 Mass.App.Ct. 366, 371, 480 N.E.2d 642 (1985), and Commonwealth v. Smith, 404 Mass. 1, 7, 532 N.E.2d 1207 (1989) (proper for the prosecutor to “make a fair response to an attack on the credibility of a government witness”); Commonwealth v. LeFave, 407 Mass. 927, 939, 556 N.E.2d 83 (1990) (Commonwealth has right to retaliatory reply); Commonwealth v. Kozec, supra at 516, 505 N.E.2d 519, citing Commonwealth v. Earltop, 372 Mass. 199, 205, 361 N.E.2d 220 (1977) (Hennessey, C.J., concurring) (prosecutors may make arguments for conviction based on evidence and “on inferences that may reasonably be drawn from the evidence”); Commonwealth v. Santiago, 425 Mass. 491, 495, 681 N.E.2d 1205 (1997), S. C., 427 Mass. 298, 693 N.E.2d 127, and 428 Mass. 39, 697 N.E.2d 979, cert. denied, 525 U.S. 1003, 119 S.Ct. 514, 142 L.Ed.2d 426 (1998), citing Commonwealth v. Anderson, 411 Mass. 279, 287, 581 N.E.2d 1296 (1991) (jury have “ability to discount hyperbole”). Moreover, in this case, the jury were able to sort out any hyperbole because they did not find the defendant guilty on the charge of assault and battery on a police officer. See Commonwealth v. Kozec, supra at 517, 505 N.E.2d 519 (split verdict demonstrates that jury able to sort out excessive claims).
Judgments affirmed.
FOOTNOTES
1. These facts are taken from the testimony of Officer Frederick C. Peck, III, the sole witness at the motion to suppress hearing. The motion judge made no written findings, discussed infra.
2. There was no evidence presented that the officers had their guns drawn.
3. Compare Commonwealth v. Rock, 429 Mass. 609, 611, 710 N.E.2d 595 (1999) (police asking, “Can I talk to you for a second?” not seizure); Commonwealth v. Stoute, 422 Mass. 782, 789, 665 N.E.2d 93 (1996) (no Terry stop when officer asks defendant to “hold up a minute,” see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ); Commonwealth v. Fraser, 410 Mass. 541, 543, 573 N.E.2d 979 (1991). In this case, the Commonwealth concedes that a seizure occurred at the point that the officer commanded the defendant to stop.
4. On appeal, the defendant claims that he was “blocked” when the cruiser pulled into the alley and submits a hand-drawn map of the area introduced at trial to support his contention. The Commonwealth has moved to strike the map. As discussed supra, we do not consider any testimony not presented at the motion hearing. There was no evidence at the motion to suppress hearing regarding whether the defendant was “blocked” and thus not free to leave: defense counsel simply asked the officer where the alleyway went, and he replied that one could go in the other side.
5. “In evaluating the propriety of a Terry stop, we inquire whether the initiation of the stop was proper in the circumstances and whether the scope was justified by the circumstances.” Commonwealth v. Watson, 430 Mass. 725, 729, 723 N.E.2d 501 (2000), citing Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). See Commonwealth v. Moses, 408 Mass. 136, 140-141, 557 N.E.2d 14 (1990).Although not raised by the defendant, in considering the scope of the stop, we look to the length of the encounter, nature of the inquiry, possibility of flight, and danger to the safety of the officers. See Commonwealth v. Williams, 422 Mass. 111, 118, 661 N.E.2d 617 (1996). Here, the scope was proper in the circumstances. There is no evidence that guns were drawn and the defendant was detained only a few moments until the officer found the packet of drugs and placed him under arrest.
6. The defendant argues that the police could not have had reasonable suspicion because the testimony was that individuals spit out drugs when they are running away from police and swallow drugs when the police are closing in. Because he was not running when he spit out the drugs, the defendant argues that he did not fit the modus operandi of a person concealing drugs. This argument is without merit. The officer testified that individuals “normally” spit if they are running but that they both spit and swallow.Furthermore, the defendant, relying on Commonwealth v. Helme, 399 Mass. 298, 503 N.E.2d 1287 (1987), and Commonwealth v. Houle, 35 Mass.App.Ct. 474, 622 N.E.2d 638 (1993), argues that there could not be reasonable suspicion because there were other innocent explanations for what the defendant could have been spitting. These cases do not advance his cause. In Commonwealth v. Helme, supra at 302, 503 N.E.2d 1287, the court held that just seeing a car parked with the engine running and the interior lights on was too broad to be the source of investigation. In Commonwealth v. Houle, supra at 476, 622 N.E.2d 638, an officer demanded that a defendant spit out the contents of his mouth when there was no reasonable suspicion to have suspected he was involved in illegal activity.
7. The defendant points out that he did not move for a required finding of not guilty at the close of the Commonwealth's case, but did so at the close of all the evidence. We consider the legal sufficiency of the evidence even if a defendant fails to move for a required finding of not guilty because “findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867, 494 N.E.2d 1298 (1986), citing Commonwealth v. Assad, 19 Mass.App.Ct. 1007, 1008, 476 N.E.2d 629 (1985), and Commonwealth v. Pickles, 393 Mass. 775, 776, 473 N.E.2d 694 (1985), and cases cited. See Commonwealth v. Sims, 30 Mass.App.Ct. 25 n. 1, 565 N.E.2d 463 (1991) (discussing Mass. R.Crim. P. 25 [a], 378 Mass. 896 [1979], requiring judge to enter required finding of not guilty on own motion).
8. Because the same facts concerning the defendant's movements and the action of the police officers that were before the motion judge were also brought out at trial, in the interest of efficiency, we need not recite them here.
9. The scuffle with the four officers took somewhere between thirty seconds and one minute.
10. The booking officer had turned off the video camera; the scuffle was not recorded.
11. This scuffle with the officer who received the bite was the basis for the charge of assault and battery on which the defendant was found not guilty.
12. General Laws c. 268, § 32B, reads in pertinent part:“(a ) A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.”
13. There is no right to resist a lawful arrest unless the officers are using excessive force. See Commonwealth v. McMurtry, 20 Mass.App.Ct. 629, 632, 482 N.E.2d 332 (1985), citing Julian v. Randazzo, 380 Mass. 391, 396, 403 N.E.2d 931 (1980); Commonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224 (1983) (extending the rule to unlawful arrests).
14. We address the issue whether the inclusion of the events at the police station in the charge to the jury created a substantial risk of a miscarriage of justice, infra, Part 3.
15. “A general unanimity instruction informs the jury that the verdict must be unanimous, whereas a specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged.” Commonwealth v. Conefrey, 420 Mass. 508, 512, 650 N.E.2d 1268 (1995), quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567, 511 N.E.2d 534 (1987).
16. The defendant points to the following:“And how dare they, how dare they question the veracity of the officers from the Springfield Police Department. So that's what their defense is, that they planted the drugs on Kenneth Grandison-Officer Fred Peck, over a thousand arrests, and he's going to plant drugs on Kenneth Grandison, he's going plant a tiny little rock of crack on Kenneth Grandison?”“You know what happened. You've got Kenneth Grandison sitting over there in the blue shirt telling a story different from the experienced police officers in the city of Springfield. And I think you know the reason that he's telling you that story.” We note that the prosecutor went on the argue that the defendant had a motive to lie.
17. The defendant cites the following:“I'll tell you what happened, what happened is what the officers in the Springfield Police Department say happened, and they said that they saw Kenneth Grandison walking down that alley.”
18. The defendant cites the following:“Ladies and gentlemen, the case ․ is as weak as the Russian ruble. That defendant right there, right there in that chair ․ is guilty of possession of crack cocaine, he's guilty of resisting arrest, and he's guilty of an assault and battery on Officer John Carolan. I'm going to ask you to go back there and when you come out I'm confident you're going to come back with guilty verdicts on all charges.”
19. At trial, the defense argued that the defendant was set up by the police officers. The defendant testified at trial that he did not spit anything out of his mouth and that the crack cocaine at the scene did not belong to him. He also introduced a witness who claimed that he observed one of the police officers throw something behind the defendant and pick it back up. The witness claimed he also heard the defendant state that the drugs were not his.In closing, defense counsel argued that one of the officers could not be believed because, defense counsel claimed, there were inconsistencies in his version of the events of that night. Such argument is proper. See Commonwealth v. Murchison, 418 Mass. 58, 60, 634 N.E.2d 561 (1994) (“In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying”); Commonwealth v. Thomas, 401 Mass. 109, 116, 514 N.E.2d 1309 (1987) (“Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed”). The credibility of police officers is a proper subject of comment. Murchison, supra.
20. The judge informed the jury that closing (and opening) arguments are not evidence, clearly stated the burden of proof, and told them that they were to determine the credibility of the witnesses.
IRELAND, J.
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Decided: August 15, 2000
Court: Supreme Judicial Court of Massachusetts,Hampden.
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