COMMONWEALTH vs. EDDIE SIMMONS.

GREANEY, C.J. On August 3, 1983, Officers John McCarthy and Richard F. Pimental of the Boston police were on duty wearing plainclothes in the "Combat Zone." About 4:15 P.M., McCarthy was on the street, and Pimental was in a nearby bar. At that time, McCarthy observed the defendant, Eddie

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Simmons, struggling with the victim, who was clutching a wallet in his right hand. Simmons held the victim's right hand with his left hand and hit the victim twice on the arm and chest, grabbing the wallet as the man fell. Simmons turned and, upon seeing Officer McCarthy (and apparently sensing that he had been observed holding the wallet), told the officer that he had found the wallet on the ground. McCarthy took Simmons into the bar and asked Officer Pimental to hold him while he (McCarthy) went back outside to confer with the victim. After McCarthy left, Simmons asked Pimental to let him go, stating, "It was only a drunk, and I only took his wallet." When McCarthy returned, Simmons was placed under arrest. At that time, Simmons told McCarthy that his name was Kevin Smith. Later, during the booking procedure, Simmons printed the name "Keven Smith" on the form on which he acknowledged receipt of his rights.

The foregoing scenario was sketched by the testimony of Officers McCarthy and Pimental at Simmons' trial before a jury in the Superior Court on an indictment charging him with unarmed robbery. [Note 1] In defense, Simmons' trial counsel concentrated on the close relationship between the two officers, inconsistencies between Officer McCarthy's trial testimony and his testimony before the grand jury, perceived deficiencies in the investigation, [Note 2] and on the fact that the incriminating statements made by Simmons to Officer Pimental had not been written

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down on any official police report or form or in court documents (although one of the statements had been preserved on informal notes kept by Officer McCarthy). All of this was designed to create a reasonable doubt by implying that the police had fabricated the account of the incident for some unknown reason. Simmons did not take the stand. The jury found Simmons guilty of the offense charged. On appeal, Simmons seeks a new trial based on claims of improper final argument by the prosecutor and error in the judge's instructions on the concept of consciousness of guilt.

1. After a few preliminaries in his summation, Simmons' trial counsel got to the heart of the defense strategy by telling the jury the following:

"Let's not mince words. I'm telling you -- I'm arguing to you that what they [the officers] said from that witness stand was not true. They got up there and they lied to you. That may be a very hard thing for you to accept, but I'm suggesting to you, hear me out and make your decision according to the evidence and apply it to [the] standard of proof."

Counsel did not suggest a motive for the officers to lie, stating that the defendant had no burden to prove a reason for doing so. Simmons' trial counsel went on in his argument to point out inconsistencies in the officers' testimony, to dwell on the fact that the defendant's statements had not been written down in the incident report or in any court documents, [Note 3] and to deal

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with Simmons' use of a false name. He concluded his argument by reiterating the theme that the police were lying. [Note 4]

The prosecutor, not to be outdone, immediately countered in his closing by stating that Simmons had "very few cards to play in this case." The prosecutor then advanced the following maxim: "It's been said, `If the facts are against you, you argue the law. If the law is against you, you argue the facts. . . . And if the facts and the law are against you, you put the police on trial." This argument drew a general objection. When pressed by the judge, Simmons' trial counsel indicated that the objection was directed to the "[i]t's been said" part of the argument (on the possibility that the language might be taken by the jury as expressing some well-established legal doctrine), and did not refer to that part of the argument which expressed the prosecutor's basic theme ("you put the police on trial"). Simmons' counsel then agreed with the judge that he would be satisfied if the prosecutor were to "clear up" the "[i]t's been said" part of the argument. The prosecutor, following this limitation, returned to the "police on trial" theme. He argued that the defendant changed his version of the facts several times. First, the prosecutor noted, the defendant claimed that he had found the wallet. Then (the prosecutor continued) when the defendant realized that he had been caught in the act, he tried "to talk his way out of it." The prosecutor developed this point in the following language: "Big deal. Who cares? The guy is a drunk." When this didn't work, the prosecutor stated, he gave "a phony name." "That didn't work either. So now he's before you. Again, he's desperate. Again, he has very

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few cards to play. Here's his last card, put the police on trial." The prosecutor's final statement on the theme was that "[m]y client, the Commonwealth of Massachusetts, has the right to have you fairly and squarely decide this case, not to be misled by red herrings thrown across your path. The police aren't on trial here. This man is. Ladies and gentlemen, he was caught in the act."

Simmons' appellate counsel argues that the prosecutor's use of the police-on-trial theme in this case was improper and prejudicially undermined Simmons' right to a fair trial. The absence of an objection at trial to the portions of the argument now criticized narrows review to whether there was anything in the argument which might have created a substantial risk of a miscarriage of justice. See Commonwealth v. Bradshaw, 385 Mass. 244, 271 (1982); Commonwealth v. Gaeten, 15 Mass. App. Ct. 524, 526 (1983).

The prosecutor had the right to make "a fair response to the defendant's obviously proper argument on [the officers'] credibility." Commonwealth v. DeJesus, 17 Mass. App. Ct. 1020, 1022 (1984). This included the right to point out that Simmons' statements, considered in sequence, showed a progressive attempt to talk himself out of a situation where he gradually realized that he had been caught flat-footed. The prosecutor also could permissibly comment upon the credibility of the only likely defenses available to someone caught in the act by the police, namely that the police were lying or mistaken. He could also comment on the trial tactics employed by the defense. See Commonwealth v. Bradshaw, 385 Mass. 244, 272 (1982).

There are, however, problems with the prosecutor's final argument. In a definite sense in this case, the police officers' credibility was "on trial," as it ordinarily will be whenever the police are the sole eyewitnesses to a crime and the main source of the evidence by which the Commonwealth must make out the elements of the crime. For the prosecutor to suggest otherwise and to an attempt by the defense to discredit the officers' testimony as injecting a "red herring" into the case, was unfair. It was also inaccurate for the prosecutor to suggest

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that the only time a defendant would, as the core of the defense strategy, attack the credibility of Commonwealth witnesses is when there is no other defense available. This is simply not so. By way of example, a defendant urging an alibi will frequently couple this defense with a vigorous attack on the credibility of Commonwealth eyewitnesses. Thus, it was unfair for the prosecutor to tell the jury that only a "desperate" defendant would ever assert that police officers lie. Moreover, the prosecutor's argument may have suggested to the jury that Simmons had neither the facts nor the law on his side, although the former was an issue for their decision, and the latter tended to invade the province of the judge. Finally, and possibly most troubling, the jury were invited by the argument to draw the inference that Simmons' very choice of defense suggested his consciousness of guilt.

Having pointed out the difficulties with the prosecutor's argument, we return to the dispositive question: Did the argument create a substantial risk of a miscarriage of justice? We conclude that it did not for the following reasons, considered cumulatively.

First, our review of the transcript does not leave us with the impression that we are dealing with a purposely overreaching prosecutor. Rather, we sense that the prosecutor had a valid point to make but simply expressed the point in an inappropriate manner. This conclusion receives support from the fact that neither Simmons' trial counsel nor the trial judge spotted the potential problems with the argument which Simmons' appellate counsel now raises.

Second, as the prosecutor properly argued, there was no motive suggested by the evidence to explain why the police officers might lie. This distinguishes the case from cases, for example, where there is a history of previous problems between the officers and the defendant, where one of the charges alleges an assault and battery on a police officer, where an internal police investigation of the officers' conduct is underway, where a civil action is pending or contemplated, or, perhaps, even where the testimony of independent eyewitnesses calls in question the police version of an incident. A direct attack by the

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prosecutor in summation of such a case might very well require a new trial.

Third, defense counsel's suggested reasons for finding the police testimony suspect were not very weighty: (a) the inconsistencies in Officer McCarthy's trial testimony from his grand jury testimony were relatively minor; (b) one of the defendant's incriminating statements, while not recorded in any official police report, had been written down informally; and (c) the victim's absence from the trial appeared related to his status as a drifter. This left the jurors with Simmons caught in the act by two police officers who had no grudge against him or any obvious reason to lie. In other words, despite the attempted defense, Simmons was faced with an overwhelming case against him.

Fourth, the possible implication that the choice of defense itself evidenced consciousness of guilt was mitigated by both counsels' references in argument to consciousness of guilt only in connection with the defendant's use of a false name at the booking procedure and by the trial judge's instruction on that basis.

Fifth, the jury had been carefully selected by lengthy and painstaking individual voir dires in which potential jurors who believed that young black men were more likely to commit crimes, that police officers or Commonwealth witnesses were more believable than defense witnesses, or that a person who chooses not to testify must be hiding something were excused for cause or peremptorily challenged (in some cases, by the prosecutor).

Finally, the judge gave clear, strong and correct instructions on the presumption of innocence, the factors for judging credibility, the Commonwealth's burden of proof, and the fact that closing arguments are not evidence. The trial judge also cautioned the jury twice that they were not to let bias or prejudice enter into their decision or to draw inferences which were unreasonable. In the circumstances, the prosecutor's summation does not require that Simmons be given a new trial.

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2. At the prosecutor's request, the judge instructed the jury on the issue of consciousness of guilt as set forth in the margin. [Note 5] The instructions failed to inform the jury, as required, "that they are not to convict a defendant on the basis of evidence of [consciousness of guilt] alone . . . ." Commonwealth v. Toney, 385 Mass. 575, 585 (1982). Commonwealth v. Matos, 394 Mass. 563, 565-566 (1985). Simmons' trial counsel did not include among his written requests for jury instructions a request for an instruction on consciousness of guilt, and he made no objection to the instructions given by the judge.

However, in the Matos case, defense counsel requested an instruction on consciousness of guilt generally in the language suggested in the Toney case and preserved a proper objection to the judge's failure to instruct the jury in accordance with that language. Moreover, in the Matos case it was noted (at 565) that "[a]part from the evidence of . . . consciousness of guilt, the evidence against Matos was sufficient but not overwhelming" and that "[t]he Commonwealth relied on [the] evidence of [consciousness of guilt] in proving its case and . . . in its closing, the Commonwealth `made much of the defendant's attempt to avoid apprehension.'"

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Here, by contrast, if the police officers were to be believed, Simmons was faced with an overwhelming case. As noted, the prosecutor's closing argument and the judge's instructions focused only upon Simmons' giving the name "Keven Smith" upon booking, rather than upon his other statements and actions. If Officer McCarthy's observations alone were not adequate for conviction, the observations, combined with Simmons' two incriminating statements, particularly the second statement about stealing a wallet from a drunk, were. Finally, the jury were told by both sides that the case boiled down to whether the police officers' version of the incident should be believed or disbelieved. For all of these reasons, it is unlikely that Simmons was convicted on the sole basis that he had concealed his name. We conclude that any defect in the judge's charge on consciousness of guilt was harmless.

Judgment affirmed.