malice element of second degree murder established by evidence that defendant dropped large rock on victim’s head
How later courts described this case
- malice element of second degree murder established by evidence that defendant dropped large rock on victim’s head
- one-sentence argument that is “conclusory in nature and lacks any articulated reasoning” violates requirements of Mass.R.A.P. 16[a][4]
- defendant’s claim, presented in a conclusory manner without any articulated reasoning, rejected as not conforming with Mass.R.A.P. 16[a][4], as amended, 367 Mass. 921 [1975]
- no substantial risk of miscarriage of justice in case of murder in second degree, where impermissible reference "was a vague and fleeting comment" [citation omitted]
Written by the judges who cited it.
The opinion
Brown, J.
(concurring). The prosecutor’s careless overreaching in final argument came dangerously close to constituting reversible error. “We remind [trial] counsel that we shall not tolerate misconduct by lawyers during the persuasion phase of a criminal trial.” Commonwealth v. Haas, 373 Mass. 545, 557 (1977). See Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 12 (1980), and cases cited. Once again it is patently clear that some prosecutors are completely ignorant of our appellate courts’ admonitions concerning closing arguments. See, e.g., Commonwealth v. McLeod, 30 Mass. App. Ct. 536 , 541 & n.10 (1991). See also Commonwealth v. Loguidice, 36 Mass. App. Ct. 940 (1994), and cases cited therein, S.C., 420 Mass. 453 (1995). They are either unable or unwilling to steer their closing arguments within permissible bounds. 1 See Commonwealth v. Earltop, 372 Mass. 199 , 205-206 & n.1 (1977) (Hennessey, C. J., concurring). See also Commonwealth v. Dowdy, 36 Mass. App. Ct. 495, 501-504 (1994) (Brown, J., dissenting).
Nearly twenty-five years ago Justice Braucher in Commonwealth v. Redmond, 370 Mass. 591, 597 (1976), chastised the trial prosecutor for “repeatedly and deliberately sailing] unnecessarily close to the wind,” and reversed the defendant’s conviction. Without rehearsing the painfully long list of flagrant violations of that wise admonition, I repeat my message to the Commonwealth attorneys in Commonwealth v. Kozec, 21 Mass. App. Ct. 355 , 367 & n.2 (1985) (Brown, J., concurring), S.C., 399 Mass. 514 (1987), and in numerous other cases before and after — if the assistant district attorneys cannot get it right, get new assistants. 2
For what should be required reading for all trial prosecutors, see Commonwealth v. Haas, 373 Mass. at 557 & n.11.
For a more effective remedy, see suggestion in Commonwealth v. Dowdy, 36 Mass. App. Ct. 495 , 503 n.4 (1994) (Brown, J., dissenting).