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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 self-
    defense, 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]).
