Judgment Reversed Due to Prosecutorial Error in Closing Argument, Commonwealth v. Brown, 81 Mass. App. Ct. 1115 (Feb. 22, 2012).
Summary: The defendant was convicted of unlawful possession of a firearm as well as unlawful possession of a loaded firearm. The Court found that his motion to suppress was properly denied because the encounter between the defendant and the police was not an unjustified stop or seizure, but rather an investigatory inquiry—commonly known as a Terry stop. However, the Court found that the judgments must be reversed and the verdict set aside because the prosecutor erred by arguing in his closing that the theory of the defense case was that the officers framed the defendant, even though no such argument was put forth by the defense counsel.
Discussion: During his closing argument, the Prosecutor stated, “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?…” (Emphasis added).
The Court found that this was prejudicial error because (1) there was no theory of framing advanced by the defense, and (2) the framing argument was a form of improper witness vouching by the prosecutor.
Implications: The Court emphasized that the framing remark inappropriately suggested to the jury that the only possible explanation for the congruence between the testimonies of various prosecution witnesses was either these witnesses were completely truthful and accurate or they were conspiring to perpetrate a gross lie. The Court also noted that the trial judge’s failure to make a curative instruction – that the closing arguments were not evidence – did not ameliorate the prosecutorial error.