Commonwealth v. Kines
Commonwealth v. Kines
Opinion of the Court
Several police officers accompanied a young woman to an apartment in Brookline to help her retrieve her baby who was in the apartment with the defendant and several others. The defendant is the baby’s father. An argument began between the baby’s mother and the defendant’s girlfriend, one of those present in the apartment. There was evidence that, while they were arguing, the defendant hit one of the police officers. The defendant then retreated to his bedroom. The officers followed the defendant into the bedroom and told him he would be required to accompany them to the police station. A scuffle ensued lasting several minutes and producing a call by the police officers for backup. As a result of what happened in the bedroom, the defendant was
The most serious transgression was the injection of a nonexistent racial issue by the prosecutor into his closing argument. All the officers involved in the incident were white and, apparently, all the other individuals present in the apartment, including the defendant, were black. Commenting on a postarrest statement by the defendant to the effect that he was surprised that he could have been subdued by only three officers, the prosecutor asked: “[I]s that the statement of somebody who has contempt? Contempt [for] white police officers trying to do their job?”
There was no basis in the evidence for suggesting that the defendant’s attitude toward the officers had anything to do with their race. “It was improper for the prosecutor to invite the jury to impute racial animosity into a situation without evidence to support it.” Commonwealth v. Phoenix, 409 Mass. 408, 425 (1991). See Commonwealth v. Mahdi, 388 Mass. 679, 693 (1983). See also Commonwealth v. Graziano, 368 Mass. 325, 332 (1975). Cf. Commonwealth v. Washington, 28 Mass. App. Ct. 271, 273 (1990) (cautioning that even where race has probative value, this value must be weighed against potential prejudice to the defendant). We must assess the prejudicial effect of the error in the context of the entire trial. See Commonwealth v. Kozec, 399 Mass. 514, 518 (1987); Commonwealth v. Phoenix, 409 Mass. at 424-426.
The prosecutor, however, also made several other errors. Several times during cross-examination the prosecutor asked the defendant, over objection, whether a police officer, whose
The defendant testified in his own behalf, and his prior conviction of larceny was introduced by the Commonwealth to impeach him. Referring to the conviction in his closing argument, the prosecutor told the jurors they should “keep [sic] that in whatever way you feel it deserves.” Defense counsel made no objection. Although ambiguous, the statement might have suggested to the jurors that the conviction could be considered for the substantive purpose of establishing the defendant’s propensity to commit a crime. See Commonwealth v. Bassett, 21 Mass. App. Ct. 713, 716 (1986). The judge did, however, give clear and correct instructions to the effect that a prior conviction could be considered only with regard to the defendant’s credibility. Compare Commonwealth v. Roberts, 378 Mass. 116, 127-128 (1979).
Perhaps each error,
Judgments reversed. Verdicts set aside.
Appellate counsel was not the prosecutor at trial.
Another factor that may have diminished the likelihood of prejudice in this case was the fact that a pretrial voir dire of the prospective jurors was conducted on the issue of racial bias.
We note another improper remark, the subject of neither an objection at trial nor argument on appeal. After the defendant testified on cross-examination that he had walked to his bedroom after the verbal altercation, the prosecutor asked, sarcastically: “Like an altar boy?”
Concurring Opinion
(concurring). If prosecutors do not see the light, they must be made to feel the heat.
It seems, as I said in Commonwealth v. Dowdy, 36 Mass. App. Ct. 495, 501-504 (1994) (Brown, J., dissenting), that the only way to bring about carefully prepared and proper closing arguments and to stop the abuse is to reverse summarily. That appears to be the only effective way to stop the abuse.
It still is my hope that ultimately a prosecutor whose misconduct is flagrant will “be required personally to reimburse the Commonwealth for the costs of any resultant retrial.” Commonwealth v. Dowdy, 36 Mass. App. Ct. at 503 n.4.
Reference
- Full Case Name
- Commonwealth vs. Jeffrey W. Kines
- Cited By
- 10 cases
- Status
- Published