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14-P-1826 Appeals Court
COMMONWEALTH vs. KENDALL T. LODGE.
No. 14-P-1826.
Suffolk. February 1, 2016. - May 20, 2016.
Present: Trainor, Meade, & Sullivan, JJ.
Firearms. Practice, Criminal, Opening statement, Conduct of
prosecutor, Argument by prosecutor, Assistance of counsel.
Constitutional Law, Assistance of counsel, Admissions and
confessions. Due Process of Law, Assistance of counsel.
Evidence, Admission by silence.
Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on July 29, 2011.
The case was tried before Robert J. McKenna, Jr., J.
N. John Magrisso for the defendant.
Kathryn E. Leary, Assistant District Attorney, for the
Commonwealth.
MEADE, J. After a jury trial, the defendant was convicted
of possession of a firearm without a license. On appeal, he
claims that the prosecutor's opening statement improperly
appealed to emotion without a factual basis, that the
2
prosecutor's closing argument improperly commented on the
defendant's post-Miranda silence, and that he received
ineffective assistance of counsel. We affirm.
Background. On July 28, 2011, at approximately 11:45 P.M.,
Boston police officers responded to a disturbance on Hansborough
Street in the Dorchester section of Boston. Upon arriving at
Hansborough Street, Officer Robert Robichaud observed a large
crowd of approximately forty people standing in the middle of
the street yelling at one another. Upon seeing the marked
police cruiser, the crowd began to disperse.
At the same time, Officer Keith Monahan responded to the
same disturbance in an unmarked police cruiser. As he parked
and exited his cruiser, Monahan's attention was immediately
drawn to a blue Toyota Corolla automobile moving towards him
because the middle passenger in the back seat, later identified
as the defendant, was sitting "almost up against the ceiling."
Monahan made eye contact with the defendant, who looked "very
surprised, [and] wide-eyed." The defendant "immediately turned
away, looked down towards his middle leg area and lunged forward
very quickly." After making these observations, Monahan told
the driver of the Corolla to stop. The driver began to stop;
however, once Monahan was within a few feet of the car, the
driver accelerated. The driver only stopped when another police
cruiser blocked the Corolla's path.
3
The police ordered the occupants out of the car and to keep
their hands up; the defendant remained inside the car and kept
his hands out of Monahan's sight. Monahan removed the defendant
(an adult), who had been sitting on a child booster seat. Upon
his removal, the defendant became agitated and confrontational.
After the car had been cleared of occupants, Monahan returned to
look in the area where he saw the defendant lunging. There he
saw a purse on the floor of the right side of the back seat,
with the handle of a firearm protruding from it. The purse
contained the license of the front seat passenger. The
defendant was arrested and brought to the police station.
At the police station, the defendant was read his Miranda
rights, and he signed a form waiving those rights. Detectives
Robert Zingg and Patrick Foley then questioned the defendant.
The defendant denied that he knew the names of the three other
people in the car, and denied knowing where in the car the
firearm was located. He went on to state, "[The] only thing I
heard about was a firearm and I don't know what it looked like,
what type of firearm, I don't know who put it there, I don't
know anything about it," and "I have nothing to do with it, I
don't even know how it got there."
After maintaining a lack of knowledge of the firearm or its
location in the car, the defendant offered various scenarios as
to how the firearm could have been placed where it was found.
4
Each hypothesis offered by the defendant placed the blame on the
other occupants of the car or a prior occupant, and each
resulted in the firearm being on the floor behind the passenger
seat. Prior to the defendant's suggestions, the police had not
revealed to him that the firearm had been found on the floor
behind the passenger seat.
After speaking to the police for approximately fifty
minutes, the defendant grew frustrated by the detectives
repeating the same questions. At that point, he stated, "I
think we're done," and the interrogation ended a short time
later.
Discussion. 1. Prosecutor's opening statement. The
defendant claims that the prosecutor's opening statement
improperly appealed to emotions without a supporting factual
basis in the record. We disagree.
"The proper function of an opening is to outline in a
general way the nature of the case which the counsel expects to
be able to prove or support by evidence." Commonwealth v.
Staines, 441 Mass. 521, 535 (2004) (citation omitted). In his
opening statement, the prosecutor remarked as follows:
"Guns and firearms, in particular, have been a hot
topic over the last few years. Congress, this country as a
whole, school shootings, snipers, guns used in selfdefense, debate's gotten pretty heated. This here today is
not [that] case. This case is about Kendall Lodge . . . .
It's about Kendall Lodge breaking the law in the
5
Commonwealth of Massachusetts. And breaking the law by
possessing a firearm without [a] proper license."
The defendant did not object, and we review to determine if
there was error and, if so, whether that error created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Randolph, 438 Mass. 290, 297 (2002).
The defendant's argument (and in large part the concurring
opinion) simply ignores what the prosecutor actually said. The
prosecutor urged the jury to decide the defendant's case based
on the facts they would hear and not on the well-publicized
topics of school shootings and the national firearms debate.1
The prosecutor then proceeded to outline the facts of the case.
Although not a model for an opening statement, there was no
error. See Commonwealth v. Toolan, 460 Mass. 452, 467 (2011)
(jury should decide case based on evidence, be free of bias and
prejudice, and be "unswayed by any media publicity" [citation
omitted]). Because there was no error, there was no risk that
justice miscarried.2
1
Later, the judge instructed the jury along these same
lines when he told them: "You are to be completely fair and
impartial. You are not to be swayed by prejudice or sympathy or
by personal likes or dislikes for either side. Nor are you to
allow yourselves to be influenced because the offense charged is
popular or unpopular with the public. You are not to decide
this case based on what you may have read or heard outside of
this courtroom."
2
Far from creating the "fearful specter of crimes" conjured
in the concurring opinion, post at , "the lack of an objection
6
2. Prosecutor's closing argument. The defendant also
claims that the prosecutor improperly commented on the
defendant's post-Miranda silence in closing argument. We
disagree. The defendant's claim centers on the following
remarks:
"If you think you're being charged with a firearm
offense, one of the questions you're going to ask is, 'What
type of gun was it? Was it a BB gun, was it a rifle?' He
never questions them as to what type of gun it is because
he knows the gun. He knows it's the revolver because he
put it there."
There was no objection to the argument.
In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the United
States Supreme Court held that the due process clause of the
Fourteenth Amendment to the United States Constitution prohibits
impeachment on the basis of a defendant's silence following
Miranda warnings.3 The Court held that such impeachment was
fundamentally unfair because Miranda warnings inform a person of
his right to remain silent and assure him, at least implicitly,
that his silence will not be used against him.
Ibid.
by defense counsel is further indication that the remark[s were]
not unfairly prejudicial in tone, manner, or substance,"
Commonwealth v. Oliveira,
74 Mass. App. Ct. 49, 56 (2009). See
Commonwealth v. Toro,
395 Mass. 354, 360 (1985).
3
The Doyle case involved two defendants who made no
postarrest statements about their involvement in the crime.
Doyle v. Ohio, supra at 615. Each testified at trial that he
had been framed.
Id. at 612-613. On cross-examination, the
prosecutor asked each defendant why he had not, upon arrest,
told the police that he had been framed.
Id. at 613-614.
7
"The animating concern in Doyle was that a defendant's
silence in the wake of receiving the Miranda warnings may be
nothing more than an exercise of those rights, which renders his
silence 'insolubly ambiguous' on questions of guilt or
innocence." Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 112-
113 (2011), quoting from Doyle v. Ohio,
426 U.S. at 617.
However, "a defendant who voluntarily speaks after receiving
Miranda warnings has not been induced to remain silent. As to
the subject matter of his statements, the defendant has not
remained silent at all." Anderson v. Charles,
447 U.S. 404, 408
(1980).
Here, in contrast to Doyle, the defendant did not remain
silent after receiving his Miranda rights. In fact, the
defendant spoke to the police for approximately fifty minutes
before he invoked his right to remain silent. During his
interview, the defendant initially denied knowing anything about
the firearm in the car. He told the detective, "I don't know
what it looked like, what type of firearm, I don't know who put
it there, I don't know anything about it." Despite this claimed
lack of knowledge, the defendant offered various scenarios that
suggested how the firearm could have ended up in the location
where police discovered it, and who may have placed it there.
As set out supra, the prosecutor argued that from the
defendant's statements to the police, the jury could infer that
8
the defendant possessed the firearm and that he knew where he
placed it in the car. Part of that inference was derived from
what the defendant chose not to tell the police, i.e., what type
of firearm it was. Those omissions were properly the subject of
the prosecutor's closing argument. Indeed, the "defendant had a
constitutional right to silence, not a right to tell a story and
then avoid explaining crucial omissions by stating they were an
exercise of the right to silence. The omission of facts from
one statement that are contained in another statement is not
silence within the meaning of Doyle." Commonwealth v. Sosa,
supra at 113, citing Anderson v. Charles,
447 U.S. at 409. See
Commonwealth v. McClary,
33 Mass. App. Ct. 678, 685-686 (1992),
cert. denied,
510 U.S. 975 (1993); Commonwealth v. Donovan,
58
Mass. App. Ct. 631, 636-637 (2003). Contrary to the defendant's
claim, because the defendant waived his right to remain silent,
and made a voluntary statement about the firearm, the concerns
outlined in Commonwealth v. Haas,
373 Mass. 545, 559-560 (1977)
(improper use of postarrest silence), do not apply here. There
was no error, and thus no risk that justice miscarried.4
Judgment affirmed.
4
Because there was no error, let alone a substantial risk
of a miscarriage of justice, associated with either the
prosecutor's opening statement or his closing argument,
counsel's failure to object to the prosecutor's remarks cannot
form the basis of an ineffective assistance claim. See
Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994);
Commonwealth v. Farnsworth,
76 Mass. App. Ct. 87, 100 (2010).
SULLIVAN, J. (concurring). I agree with the opinion of the
majority except for the question of error in the prosecutor's
opening statement. It is a rule of long standing that the
"proper function of an opening [statement] is to outline in a
general way the nature of the case which counsel expect to be
able to prove or support by evidence. He should not be allowed
to state facts which are irrelevant or for any reason plainly
incompetent." Reporters' Notes to Rule 24, Mass. Ann. Laws
Court Rules, Rules of Criminal Procedure, at 1605 (LexisNexis
2015), quoting from Posell v. Herscovitz, 237 Mass. 513, 514
(1921). See Mass. G. Evid. § 1113(a)(1) note, at 411 (2016),
citing Commonwealth v. Fazio,
375 Mass. 451, 454 (1978), and
Commonwealth v. Croken,
432 Mass. 266, 268 (2000). The
references to school shootings and snipers were references to
facts that would not, in any circumstances, be admitted in
evidence in this case, and they should not have been made.
Contrast Commonwealth v. Johnson,
429 Mass. 745, 748 (1999).
Alternatively, the remarks were argument. Argument has no
place in an opening statement. See Mass. G. Evid. § 1113(a)(1)
(2016) ("Argument for or against either party is not
permitted"). Even if these remarks were made in closing
argument, they would constitute an appeal to fear or prejudice,
which is likewise prohibited. See Commonwealth v. Vasquez, 65
Mass. App. Ct. 305, 311 (2005) (reference to church sex abuse
2
scandal in trial of indecent assault and battery of child under
age of fourteen "overstepped the bounds of appropriate advocacy"
because it injected "impermissible, inflammatory element into
the jury's consideration of the case").
The prosecutor's subsequent disclaimer does not, a
fortiori, negate the initial misstep. "Suggestions . . . made,
albeit in disclaimer form," may nonetheless "play on the
prejudices of the jurors," and thus cause them to stray from a
"fair, calm consideration of the evidence." Commonwealth v.
Shelley, 374 Mass. 466, 470 (1978). See Commonwealth v. Hogan,
12 Mass. App. Ct. 646, 650 (1981). A reference to snipers and
mass murder in an opening statement, followed by a
"disclaimer[,] . . . has all the persuasiveness of a pitcher's
protestations after bean-balling the lead opposition batter. It
could be true, but one might doubt it." Ibid., quoting from
Allen v. Snow,
635 F.2d 12, 15 (1st Cir. 1980), cert. denied,
451 U.S. 910 (1981).1 Even if the opening statement was simply
the product of inadvertence or inexperience, it still raised,
unnecessarily, the fearful specter of crimes that were not at
1
There had been three previous mistrials. In the
immediately preceding trial (the fourth proceeding), the
defendant was acquitted of possession of ammunition without a
firearm identification card and of carrying a loaded firearm
without a license. The jury were deadlocked on the within
charge of possession of a firearm without a license. The
remarks at issue here, in the fifth proceeding, were not made in
the previous trials.
3
issue, and thus threatened to undermine the jury's function to
consider the evidence free from emotion or prejudice. If this
case was not about snipers or school shootings, there was no
need to mention them.
However, the balance of the opening statement was proper,
and the theme was not repeated, either in the opening statement
or the closing argument.2 The judge instructed that opening
statements are not evidence, and that the jury's decision should
not be based on emotion or prejudice. When considered in the
context of the opening as a whole, the evidence at trial, and
the judge's instructions, the "prosecutor's needless comment,"
while error, did not pose a substantial risk of a miscarriage of
justice. Commonwealth v. Mazariego, 474 Mass. 42, 58 (2016).
For that reason, I concur in the judgment.
2
With respect to the claim of ineffective assistance of
counsel, it is far from clear that counsel's performance was
constitutionally deficient. This is particularly so when the
case is before us on direct appeal with no record to explain
trial counsel's conduct. See Commonwealth v. Zinser, 446 Mass.
807, 811 (2006). In any event, the standard for determining a
substantial risk of a miscarriage of justice is "essentially the
same" as the standard for determining prejudice on an
ineffective assistance of counsel claim. Commonwealth v.
LaChance,
469 Mass. 854, 858 (2014). See Commonwealth v.
Carriere,
470 Mass. 1, 19 (2014) ("The absence of an objection
at trial may be viewed as 'some indication that the tone [and]
manner . . . of the now challenged aspects of the prosecutor's
argument were not unfairly prejudicial'" [citation omitted]).
