10 Mass. App. Ct. 896

September 19, 1980

The prosecution's closing argument, to which no objection was taken at the trial, did not create "a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967). Commonwealth v. Shelley, 374 Mass. 466 , 469 (1978). The statement most strongly objected to on appeal ("I don't care what the testimony was in this case today . . . ") was a most unfortunate phrasing at a single point of what was otherwise a perfectly proper line of argument to the jury that they should reject the testimony of the witness Eddington to the effect that she and Michael Dukes were not friends of the defendant and the argument advanced by defense counsel that Eddington was the only unbiased witness in the case. That statement and the prosecutor's occasional use of "I think that . . . " are seen to be rhetorical devices rather than suggestions of personal knowledge or opinion (compare Commonwealth v. Fitzgerald, 376 Mass. 402 , 416-418 [1978]; contrast Commonwealth v. Villalobos, 7 Mass. App. Ct. 905 [1979]) when his argument is read for its total effect. Compare Commonwealth v. Borodine, 371 Mass. 1 , 11 (1976), cert. denied, 429 U.S. 1049 (1977). The prosecutor's appeal to "common sense" was not tantamount to an assertion of his personal belief in the defendant's guilt. Contrast Commonwealth v. Earltop, 372 Mass. 199 , 203, and the examples set out at 205-206 n.1 (1977) (Hennessey, C.J., concurring).

Judgment affirmed.

BROWN J. (concurring). As I agree that these circumstances did not create a substantial risk of a miscarriage of justice, I concur. However, I deem it appropriate to state again that "[i]t is long past time for prosecutors to prepare their closing arguments carefully in order to avoid the possibility of reversals of convictions because of prosecutorial error." Commonwealth v. O'Brien, 377 Mass. 772 , 778 (1979).