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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. McCoy,
Present: Porada, Laurence, & Kantrowitz, JJ.
A pretrial motion to suppress evidence was heard by
Vieri Volterra, J., and the case was tried before Charles T. Spurlock, J.
Susan E. Taylor for the defendant.
Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.
LAURENCE, J.
Indicted
on charges of possession of heroin with intent to distribute (G. L.
c. 94C, § 32[b]) and doing so within 1000 feet of a school
(G. L. c. 94C, § 32J), the defendant was found guilty by a jury
of the lesser offense of possession of heroin. He now contends that (1) his
pretrial motion to suppress the heroin discovered under the driver's seat of an
automobile he was operating should have been allowed because the police lacked
probable cause at the time they seized him; (2) he was denied a fair trial
because the prosecutor improperly cross-examined him about the alleged criminal
record of the passenger in the car he was driving and because the judge refused
to provide a curative instruction regarding that examination; and (3) he was
denied a fair trial because of several statements made by the prosecutor in
closing argument, particularly the prosecutor's vouching for the credibility of
the police witnesses and presenting as facts prejudicial information not in
evidence. We reverse because of the prosecutorial errors.
1. Motion to suppress. At the evidentiary hearing on the motion to suppress,
the motion judge found (based on the arresting officer's testimony, the
entirety of which the judge
found credible) that on the evening of November
16, 1998, police officers in an unmarked vehicle were patrolling the Maple
Street area of Boston, a high crime area which the arresting officer testified
was "probably one of the top three drug spots in . . .
Boston," where he had made approximately one hundred arrests for drug and
firearms violations, including shootings. Around
Two of the officers left their vehicle[1]
and approached the station wagon. The arresting officer then saw the driver,
subsequently identified as the defendant, make a downward motion to the floor.
Fearing that it was a firearm, the officer removed his revolver from its
holster (keeping it at the side of his body) and ordered the defendant out of
the car. Reaching under the driver's seat to discover what had apparently been
secreted there, the officer pulled out fifty glassine bags of heroin wrapped in
a napkin secured by a rubber band.[2]
On the basis of this evidence, the judge denied
the motion to suppress, ruling that the officer's testimony established
"probable cause to believe that a drug transaction had recently taken
place at this automobile and thus justified the removal of the passengers from
the automobile and a search of the automobile since individuals involved in the
narcotics trade are frequently armed. . . . [F]or the officer[']s own safety he
was justified in searching the automobile within a[n] arms-length of where [the
defendant] had been seated."
The defendant asserts that he was effectively
seized when the police "blocked" him in (see note 1, supra) so that
he was not free to leave prior to their observing his placing something under
his seat, at a time when they lacked reasonable suspicion of a crime, much less
probable cause for the warrantless seizure of the heroin. Under the relevant
authorities, however, the circumstances found by the judge adequately provided
the officers with probable cause to conclude that a drug transaction had
occurred and to arrest him prior to their blocking his car. See Commonwealth v.
Anderson, 362 Mass. 74, 76-77 (1972); Commonwealth v. Hall, 366 Mass. 790,
792-793, 798 (1975); Commonwealth v. Carrasco, 405 Mass. 316, 322 (1989);
Commonwealth v. Santaliz, 413 Mass. 238, 240-242 (1992); Commonwealth v.
Kennedy, 426 Mass. 703, 708-711 (1998); Commonwealth v. Sweezey, 50 Mass. App.
Ct. 48, 49-51 (2000); Commonwealth v. Albert, 51 Mass. App. Ct. 377, 377-380
(2001). The protective search under the driver's seat was, accordingly, proper
as a search incident to the defendant's arrest for illegal drug activity. See
Commonwealth v. Toole, 389 Mass. 159, 162 (1983); Commonwealth v. Sanchez, 403
Mass. 640, 646 & n.4 (1988); Commonwealth v. Lantigua, 38 Mass. App. Ct.
526, 527-528 (1995); Commonwealth v. Sweezey, 50 Mass. App. Ct. at 52-53, and
cases cited. The fact that the defendant was not formally arrested until after
the search is not material so long as probable cause existed to arrest at the
time the police made the search for weapons or contraband. Commonwealth v.
Brillante, 399
We agree with the Commonwealth that, in any
event, "[t]he scenario observed by the officers, filtered through the lens
of their experience," provided them with reasonable suspicion to make a
proper investigative stop of the defendant and his automobile. Commonwealth v.
Sweezey,
The events subsequent to the lawful stop -- the defendant's furtive gesture and
his inability to produce a license or registration -- easily elevated the
officer's reasonable suspicion to probable cause to arrest and search the
defendant and the area he had been occupying. See Commonwealth v. Alvarado, 420
Mass. 542, 550 (1995); Commonwealth v. Va Meng Joe, 425 Mass. 99, 106 (1997);
Commonwealth v. Mantinez, 44 Mass. App. Ct. at 517; Commonwealth v. Sweezey, 50
Mass. App. Ct. at 51-52; Commonwealth v. Albert, 51 Mass. App. Ct. at 380 n.8.
Under either analysis, therefore, the heroin found under the defendant's seat
was lawfully seized and properly admitted in evidence at trial.
2. Improper cross-examination. The defendant, a
self-employed mechanic, testified that the car he was driving when arrested
belonged to a friend (who was then incarcerated on account of a "drug
case" involving, in an undescribed way, heroin). He was test-driving the
car for the friend's wife after repairing it for her when he saw an
acquaintance, Wanda Drayton, walking on
During cross-examination of the defendant, the prosecutor asked him whether he
knew that Drayton "[has] been convicted of trafficking in [a] Class A
substance, heroin?" Defense counsel promptly objected but was overruled by
the judge. The prosecutor then asked the defendant, "Or convicted of
distributing Class A, heroin. Did you know that?" The defendant responded
by denying such knowledge. After completion of the defendant's testimony,
defense counsel renewed his objections to such inquiry and requested a
"curative instruction" for the jury to the effect that the defendant
cannot be impeached by someone else's convictions. Counsel also requested that
the prosecutor be instructed not to argue the point. The judge denied the
requests, eliciting another defense "objection."[5]
What the prosecutor did was clearly improper,
and the judge's refusal to condemn the prosecutor's impropriety was an abuse of
his discretion. "Such evidence tainted the defendant with guilt by
association and was not relevant to prove the defendant [possessed or]
distributed heroin." Commonwealth v. Best,
Because of the irrelevance of the prosecutor's questions -- the defendant's
character was never in issue -- and their lack of basis in the evidence, the
judge erred in overruling the defendant's objections, see Commonwealth v.
Howell, 49 Mass. App. Ct. 42, 49 (2000), and in refusing to cure the situation
except by "tardy and tepid remarks" in his final instructions to the
jury (which consisted entirely of the statement that "[q]uestions to the witnesses
are not evidence") that were "standard, not curative."
Commonwealth v. Rodriquez,
We have no such assurance here, where the error
struck at the heart of the defense (the credibility of the defendant's
"innocent" explanation for being involved in the situation); where
the case against him was not overwhelming (the defendant himself being unknown
to the police and never having been observed dealing or handling drugs or
money)[6]; and where the judge's inexplicable overruling of defense
counsel's objection may have been seen by the jury as judicial endorsement of
the improper questioning and innuendo, see Commonwealth v. Rodriquez, 49 Mass.
App. Ct. at 373, enhancing the "active danger that [the] jury could misuse
the evidence." Commonwealth v. Harris, 409
3. Factual misstatements in closing. Even if
the cross-examination smearing of the defendant with the purported drug
misdeeds of another did not itself create undue prejudice, we are persuaded
that the prosecutor's closing argument exacerbated the harm to a reversibly
toxic level. Apparently emboldened by his success during cross-examination, the
prosecutor in closing argument derided the defendant's testimony with a renewed
effort to brand him as a knowing confederate of drug criminals:
"Think of the circumstances that he tells
you about. He just so happens to go over to a drug dealer's house to fix the
drug dealer's car. And then he drives around and picks up a woman. And lo and
behold, who is that woman? And what does she do for a living? Is she involved
in the drug trade? And lo and behold they stop at 32 Maple Street, and who
approaches the car? Someone the officers know to be involved in heroin.
"So this poor guy, three times in one
night, is surrounded by heroin users and drug dealers. And he wants you to
believe it's all circumstance. 11:40 p.m. on a work night and all of sudden all
his friends are either heroin users or heroin dealers."
Following the prosecutor's argument, defense
counsel at sidebar reminded the judge that he had earlier requested that the
prosecutor be instructed not to argue that Wanda Drayton was a drug dealer or
had been convicted of drug dealing because there was no evidence supporting
such statements; and asked that an instruction be given the jury not to
consider such argument. The judge responded, "Overruled."
The prosecutor's quoted statements were devoid
of evidentiary basis in every material respect. There was neither evidence nor
permissible inferences from the testimony that the owner of the car which the
defendant drove was a drug dealer or a heroin dealer (his incarceration
following a "drug case" may have been the result of heroin possession
for personal use or for merely being knowingly present at a place where heroin
was kept or in the company of a person possessing heroin, see G. L.
c. 94C, §§ 34, 35); or that Wanda Drayton was either a drug user or
was involved in any way in heroin or the drug trade, much less that she did so
for a living; or that the "drug user" who approached the car was
known to be involved with heroin or was a heroin user or was a friend of the
defendant. See the authorities cited in note 6, supra. The manifest intention
of the prosecutor was to convey to the jury the impression that the defendant
was criminally implicated in heroin transactions just like and along with
"all his friends." The remarks were not merely irrelevant to the
issue of the defendant's guilt but constituted prejudicial character
denigration (as discussed in the preceding section), made all the more improper
because there was no evidence that the defendant himself had a criminal record
involving drugs or had ever sold, used, or even touched any drugs.
The defendant's character was never an issue
properly before the jury. The jury's sole task was to determine whether the
Commonwealth's evidence established beyond a reasonable doubt that the
defendant had possessed heroin with intent to distribute on the evening of
November 16, 1998, not whether he was intimately involved with heroin dealers.
A closing argument that disparages a defendant's character when it is not an
issue at trial is both improper and inflammatory. See Commonwealth v. Griffith,
45 Mass. App. Ct. 784, 784-785 (1998) (prosecutor's argument calling defendant
charged with single count of distributing marijuana "drug dealer" was
inflammatory and "stepped over the boundaries of permissible
advocacy").
We reiterate the admonitions that our appellate courts have, unfortunately all
too frequently, been compelled to direct to the Commonwealth's representatives:
Prosecutors must hold themselves "to a consistently high and proper
standard," indeed "to a stricter standard of conduct than are errant
defense counsel and their clients" held, because of the "serious
consequences [to the public] from improper closing argument," Commonwealth
v. Kozec, 399 Mass. at 519, not the least of which is a needless waste of
public resources when retrials become necessary. While a prosecutor may strike
hard blows, he is not at liberty to strike foul ones. Commonwealth v. Long,
In determining whether improper argument
requires reversal in any particular case, we consider whether the defendant
seasonably objected, whether the error went "to the heart of the
case," whether the judge's instructions mitigated the error, and whether
the error "possibly ma[d]e a difference in the jury's conclusions."
Commonwealth v. Kozec, 399
The defendant strenuously objected. The remarks were not addressed to a
collateral matter but struck directly at the heart of the defense, namely, the
credibility of his explanation for his activities on the evening in question --
which would have been undermined by the prosecutor's manifest implication that
the defendant had a propensity to commit the very kind of crime charged in this
case. The judge refused to address the error at defense counsel's explicit
request. He then provided an instruction that was minimally standard and
entirely noncurative (being confined to eight words, "Arguments or
statements by lawyers are not evidence"). By his rulings, the judge
effectively managed "to give judicial endorsement to the prosecutor's
improper argument," id. at 522, and "allowed the judicial imprimatur
to attach to the inferences of guilt." Commonwealth v. Cobb, 374
4. Improper "vouching." Our conclusions
as to the unfairly prejudicial impact of the prosecutor's conduct are further
buttressed -- though they require no such support -- by the prosecutor's
inappropriate closing remarks regarding his two police witnesses.
Defense counsel's closing argument had emphasized that the defense witnesses
(especially the defendant, by virtue of his taking the stand to assert his
innocence) were credible; that the police witnesses conceded they never saw the
defendant touch any drugs or receive any money; that the prosecution had failed
to produce any of the drug money the police had testified to seeing; that the
police witnesses had exaggerated what they saw the defendant doing as they
approached the car (from "lean[ing] down slightly" at the suppression
hearing to "shoulder dipping" at trial); and that the officers'
memories were not trustworthy (they had forgotten whether they had ever
determined who owned the car).
Counsel concluded his closing with the exhortation that: "They're making a
mountain out of a molehill because they have nothing to connect [the defendant]
with the drugs. They're asking you to make a leap from leaning down, shoulder
dip, to yes, he did possess the drugs and he was distributing
drugs. . . . The truth remains [the defendant] did not own that
car . . . never touched the drugs . . . [and] is
innocent because he did not know drugs were kept in that car."
This argument by defense counsel did not
insinuate, much less aver, that the police witnesses were liars.
In response, the prosecutor immediately declared:
"Ladies and gentlemen of the jury, what
you just heard from [defense counsel] as he politely -- what he was doing --
and I grant you he was doing it very politely -- he was just calling somebody a
liar. . . . He's saying those two police officers, with a
combined twenty-six years of experience in the various neighborhoods protecting
the streets of the City of Boston, came in here, walked up to that stand, took
the oath, and lied. That's what he's saying. They came in here and lied."
After several rhetorical questions in the same
vein ("They came in here and lied to you? Made the whole story up? . . .
Did they make that up [that the defendant bent over], too? Both of
them?"), the prosecutor concluded this line of argument with a final foul
flourish: "Again, [if] you believe them [referring to the defendant and
his counsel], you're calling those two police officers liars. That's the fact
of the matter."
These remarks were multiply objectionable. They
not only constituted improper, if implicit, vouching[7] but also
exceeded the bounds of fair, corrective response, see Commonwealth v. Simmons,
20 Mass. App. Ct. at 370-371; impermissibly appealed to the jury's emotional
concern for crime-free streets by inferentially urging their trust in the
police witnesses who had long protected those streets, see Commonwealth v.
Vuthy Seng, 436 Mass. 537, 556, cert. denied, 537 U.S. 942 (2002); Commonwealth
v. Ward, 28 Mass. App. Ct. 292, 294-295 (1990); Commonwealth v. Wallace, 45
Mass. App. Ct. 930, 931 (1998); and reflected the kind of "unnecessary and
hyperbolic embellishments" our appellate courts view with disfavor.
Commonwealth v. Masello, 428
What the prosecutor should have done in proper response was "to argue from
the evidence why the [police] witness[es] should be believed."
Commonwealth v. Hardy, 431
Judgment reversed.
Verdict set aside.
KANTROWITZ, J. (concurring in part, dissenting
in part).
1. Motion to suppress. I agree with the majority that the police possessed
probable cause to arrest, having interrupted what they appropriately perceived
as a drug deal in progress.
2. Improper cross-examination. Even assuming that the single question
concerning Drayton having been convicted of heroin distribution was
inappropriate,1[9] it is difficult to ascertain any prejudice. Drayton
was the middleman in a drug transaction. Indeed, this fact helped establish
probable cause to arrest. The jury, having heard of her involvement in selling
heroin, could not have been adversely affected by a single question concerning
the same general subject matter. Further, the response to the question was in
the negative. In his final instructions, as in his preliminary instructions,
the judge properly instructed the jury that such questions are not evidence.2[10]
Lastly, the jury's acquittal of the defendant on the two serious charges
demonstrates their ability to assess properly the evidence.
3. Factual misstatements in closing. The
defendant testified to a somewhat implausible story -- a self-employed
mechanic, driving around, late at night, at approximately
A prosecutor can remark on the defendant's
theory of the case, as long as the statements and inferences are based in
evidence and do not represent the prosecutor's personal beliefs on the
credibility of the defendant.
The prosecutor handled with skepticism, properly I submit, the tale spun by the
testifying defendant. The prosecutor stated, in part:
"Think of the circumstances that he tells
you about. He just so happens to go over to a drug dealer's house to fix the
drug dealer's car. And then he drives around and he picks up a woman. And lo
and behold, who is that woman? And what does she do for a living? Is she
involved in the drug trade? And lo and behold they stop at
"So this poor guy, three times in one
night, is surrounded by heroin users and drug dealers. And he wants you to
believe it's all circumstance.
While the majority finds neither evidence nor
permissible inferences to support the prosecutor's closing, both are clearly
evident. Wanda Drayton, who was involved in the drug sale which helped create
probable cause to arrest, is a drug dealer.5[13] The person approaching
the car, who passed money to Drayton, ostensibly to purchase the drugs, is a
drug buyer.6[14] The car's owner, as testified to by the defense, was at
the time, serving a sentence for a "drug case" involving heroin. As
fifty packets of heroin were found in the car and no other drug, it is
permissible to infer that the drug dealers were heroin dealers and the drug
purchaser was a heroin buyer. The prosecutor's closing on this point was
permissible. To conclude that "[t]he prosecutor's quoted statements were
devoid of evidentiary basis in every material respect" is simply wrong.
Moreover, the jury were instructed, both at the preliminary and final stages,
that the closing arguments of counsel were not to be considered as evidence,
which minimized any possible prejudicial effect.7[15] See Commonwealth
v. Ortiz-Soto, 49 Mass. App. Ct. 645, 650 (2000).
4. Improper vouching. The police testified
that, as they approached the car from the front, the defendant made a gesture
as if placing something under the seat, which when searched revealed fifty bags
of heroin and $184. The defendant asserted that he did not make the gesture.
The defendant, in his closing, intimated that the police were being less than
candid.8[16]
In response, the prosecutor, in his closing,
characterized this argument as calling the police liars.9[17] The
defendant, although vigilant and objecting to other evidence, chose not to
object here. The majority characterizes this unobjected-to argument as
prosecutorial vouching.
"Improper vouching can occur 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.
Here the prosecutor did not vouch for the credibility of the police officers.
There was no expression of personal belief in the credibility of the police or
an indication that the prosecutor had knowledge independent of the evidence
before the jury. The prosecutor simply made an accurate statement of fact: that
if the jury believed the defendant, they could not also believe the police. It
is axiomatic that when there are two conflicting versions of events and one
side is found, by a jury, to be true, the other side has to have been found to
be not true.10[18] "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. Murchison, 418
5. Conclusion. A defendant is entitled to a
fair trial, not one free from all error. While missteps were made here,
including some aspects of the prosecutor's closing argument, none resulted in
the defendant receiving anything other than the trial to which he was entitled.
That the jury were intelligent and sophisticated, moving beyond puffery and
rhetoric, is evidenced by their finding the defendant not guilty of the serious
charges facing him (drug trafficking in a school zone) and finding him guilty
only of so much of the first indictment as alleged simple possession. That
militates, in part, against finding both prejudicial error and a substantial
risk of a miscarriage of justice. As such, I respectfully dissent.
FOOTNOTES:
[1] The driver of the police cruiser acknowledged
that he had pulled alongside the defendant's vehicle in such a way as to
effectively prevent it from moving.
[2] The officer
testified that he identified himself as he approached the defendant and first
asked for the defendant's license and registration. When the defendant
responded that he had neither, the officer asked him what he had put under the
seat. The defendant did not respond to that question, at which point he was
removed from the vehicle. The officer testified that he could then have
arrested the defendant for operating the vehicle without a license or registration.
See G. L. c. 90, §§ 10, 11, 21; Commonwealth v. Lantigua,
[3] The defendant raises no challenge to the scope of
the search. We conclude that it was properly confined to the area within the
defendant's reach or control and was sufficiently tied to and justified by the
circumstances that legitimized it. See Chimel v.
[4]
[5] Wanda Drayton, the passenger in the car on
[6] Presence in the
vehicle where the drugs were discovered is insufficient to prove the
defendant's knowledge and intent to control the contraband. Commonwealth v.
Garcia, 409
the contraband." Ibid. While presence may "tip the scale in favor of
sufficiency" when "supplemented by other incriminating
evidence," Commonwealth v. Brown, 401 Mass. 745, 747 (1988), quoting from
Commonwealth v. Albano, 373 Mass. 132, 134 (1977), evidence that the driver and
passenger bent forward after realizing the presence of police officers
"does not support an inference that [either] the defendant [or his
passenger had] placed [contraband, in that case a firearm] under the passenger
seat."
That the jury did not find the defendant guilty of the more serious charge
of possession with intent to distribute in a school zone -- a fact the dissent
regards as indicative of lack of prejudice to the defendant -- is (to the
extent it is not an entirely speculative consideration) largely irrelevant in
the evaluation of prejudice from objected-to improper questioning and closing
argument under the "prejudicial error" standard. However pertinent
that factor might be for purposes of the "substantial risk of miscarriage
of justice" (or ineffective assistance of counsel) analysis, it has little
significance here, not only because the applicable review standard is a
possibility, rather than a significant and material risk, of having made a
difference to the jury; but also because the burden of disproving such a
possibility is upon the Commonwealth, which has failed to do so. See and
compare Commonwealth v. Schulze, 389
[7] We agree with the
dissent that the prosecutor's remarks did not precisely fall within the most
commonly disapproved types of vouching, i.e., directly expressing his personal
belief in his witness's credibility or indicating his possession of
extra-evidentiary knowledge (see Commonwealth v. Wilson, 427 Mass. 336, 352
[1998]). We also are aware that the line between arguing for and vouching for a
witness's credibility is all too often a fine one.
sense, [the prosecutor's argument] does invite the jury to rely on the prestige
of the government and its agents rather than the jury's own evaluation of the
evidence; to this extent, the argument presents the same danger as outright
vouching."
construe the quoted comments and rhetorical questions as communicating (even
if indirectly, obliquely, and implicitly) the prosecutor's personal endorsement
of the proposition that the experienced police witnesses who had for many years
kept Boston's streets safe -- inferably, from the likes of the defendant and
his "heroin dealer" friends who were now impugning police integrity
-- could be trusted to tell the truth. See Commonwealth v. Ciampa, 406 Mass. at
265; Commonwealth v. Griffith, 45 Mass. App. Ct. at 788-789; Commonwealth v.
Zavala, 52 Mass. App. Ct. 770, 776 (2001).
[8] We need not consider the defendant's other
challenge to the prosecutor's closing, protesting that the prosecutor misstated
the law regarding the jury's use of the defendant's prior convictions, which
has no merit because the judge did adequately instruct as to the permissible
use of such evidence and eliminated any plausible possibility of prejudice.
[9] 1 It appears the question was asked, not to
disparage the defendant's character as the majority indicates, but rather to
shed light on the knowledge element of the crime.
[10] 2 The majority characterizes the jury
instruction as "tardy and tepid" and "standard, not
curative." How then does a jury respond to such an instruction? Are they
not, as we have written countless times, presumed to follow the instructions
given them?
[11] 3 She testified that the car was either a white
Chevrolet or a Plymouth Reliant. The police officers testified that the car was
a yellow Ford Fairmont.
[12] 4 Other
eyebrow-raising aspects of the defense involved
(1) his driving with a suspended operator's license; (2) his testimony of
calling his wife at approximately 8:30 P.M. to let her know that he would be
home in a little while, yet taking the car for a forty-five minute test drive
on the highway and
being arrested at nearly
[13] 5 The middleman in a drug deal is a drug dealer.
That Drayton that evening was acting in such a capacity permitted the
prosecutor to refer to her as one.
[14] 6 There was also evidence, developed during the
cross-examination of one of the arresting officers, that the person who
approached the car was a "drug abuser."
[15] 7 Once again, the majority gives short shrift
to the jury instruction, characterizing it as "minimally standard."
See ante at note 10.
[16] 8 "Officer
Jones says, I saw his shoulder dip. No doubt. I saw his shoulder dip as I was
approaching the car from twenty feet. Just -- on
asked him, Did you see his shoulder -- Did you see him lean down? And if you
remember, I had him read his own statement, which he reviewed for some time, to
confirm. And he read it to you. A couple of months ago, he wasn't so sure, he
says -- and that was at a hearing before a judge, under oath -- 'I guess, I
guess he would have to lean down slightly.'
"That has now progressed to, I saw his
shoulder dipping.
"And just think about what the officers
said about where he found the drugs; under the center of the seat.
"We've all been in cars before. I would
just leave it up to you to see if it makes sense that someone who sees somebody
approaching would be able to put drugs under the center of the seat in that
instant.
"They're making a mountain out of a molehill because they have nothing
to connect [the defendant] with the drugs. They're asking you to make a leap
from leaning down, shoulder dip, to yes, he did possess the drugs and he was
distributing drugs."
[17] 9 The prosecutor
argued, in part, and in part excessively: "Ladies and gentlemen of the
jury, what you just heard from [defense counsel] as he politely -- what he was
doing -- and I grant you he was doing it very politely -- he was just calling
somebody a liar. Because, you see, you can't have it both ways. He's not saying
they were mistaken. He's saying those two police officers, with a combined
twenty-six years of experience in the various neighborhoods protecting the
streets of the City of Boston, came in here, walked up to that stand, took the
oath, and lied. That's what he's saying. They came in here and lied."
The prosecutor later asserted, arguably coming close to, if not stepping
over the line, "Again, [if] you believe them, you're calling those two
police officers liars. That's the fact of the matter."
[18] 10 Some cases, of course, may call into
question the possibility of a good faith mistake being made, as opposed to a
lie. As veteran trial counsel know, it is rare to call a witness a liar,
preferring the more subtle route. A trial judge must listen closely to ensure
that the arguments made are warranted by the evidence.