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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. Wallace, 45 Mass.App.Ct.
930 (1998)
Appeals Court of Massachusetts.
No. 97-P-1206.
Ernest H. Hyde, Shirley,
for defendant.
Kristine Luongo Tammaro, Assistant
District Attorney, for the Commonwealth.
RESCRIPT.
[45 Mass.App.Ct. 930]
After his motion to suppress evidence was denied, the defendant was tried and
convicted of unlawful possession of a firearm.
He was found not guilty of unlawful possession of ammunition. The defendant appealed, claiming that his
suppression motion should have been allowed, and that there were various prejudicial
errors during the course of the trial.
We affirm.
1. The suppression motion. We take the facts from the judge's
findings. Two detectives (Paul W.
Murphy, Jr., and James Freeman), not in uniform, and while patrolling in an
unmarked vehicle, saw two men emerging from a vacant lot breathing heavily as
if they had just been running. They
appeared to be sweating. One of the
officers noticed that the defendant (whom the officer recognized from a prior
drug arrest) was holding a sweatshirt at his waist area. He was pulling one of his arms out of the
sweatshirt, and it appeared that some type of object was in the sweatshirt.
Freeman, the driver, backed up the vehicle in the
direction of the defendant, stopped, and the two officers left their
vehicle. When about
twelve feet from the defendant, Murphy said, "Police." Upon hearing Murphy, the defendant fled, and
a chase ensued. Murphy lost sight of the
defendant for about a minute. As Freeman
also followed the path of the defendant's flight, he came [45 Mass.App.Ct. 931] upon the defendant's
sweatshirt. In the sweatshirt was a .22
caliber rifle with a sawed-off barrel and stock. A warrant issued for the arrest of the
defendant.
[1][2][3][4] The fact that the cruiser backed up in the
direction of the defendant did not amount to a stop or a constructive seizure,
Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 560-561, 633 N.E.2d 1058 (1994), nor did
the self-identification of the police constitute a stop. See id. at
561, 633 N.E.2d 1058. See also
Commonwealth v. Fraser, 410
[5] 2. Other issues. The judge's limiting instruction adequately
cured any error in permitting the introduction of the defendant's prior arrest,
as well as the prosecutor's closing remarks asking the jury to speculate why
the defendant was carrying a gun in the neighborhood.
[6] Much more serious, however, was that portion of the
prosecutor's closing argument in which he asked the jury to consider the right
of the people in the neighborhood to feel safe.
The Commonwealth concedes that the argument "stepped over the line
of permissible argument...." So
much is clear; less
clear is whether the impermissible argument is sufficient grounds for a
reversal. We conclude that, but for the
judge's forceful curative instructions to the effect that the rights of people
in the neighborhood should not be considered, the prosecutor's remarks would
likely have produced a new trial. With
the instruction, however, there was insufficient likelihood of prejudice to the
defendant to justify a reversal of the judgment.
[7] The defendant also argues that the prosecutor
impermissibly commented on the defendant's failure to testify. The statement quoted in the brief is taken
out of context, distorting the meaning of the prosecutor's statement. The prosecutor was merely speculating as to
what the defendant thought he might say if challenged by the police. The prosecutor was not commenting on the
failure of the defendant to testify.
We have considered the remaining arguments of the
defendant; they
have no merit and require no discussion.
Judgment affirmed.