COMMONWEALTH vs. BERNARD A. DOWDY, JR.

GREENBERG, J. The defendant was indicted for trafficking on a single occasion in cocaine of a weight over twenty-eight grams. After a three-day jury trial, a jury found the defendant guilty of the crime charged in the indictment against him. Before trial the defendant moved to suppress the cocaine found in his possession at the time of his arrest. The

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appeal centers on the denial of this motion and the defendant's claim that improper comments made by the prosecutor in her closing speech to the jury warrant reversal of the judgment of conviction. We affirm.

1. Motion to suppress. We draw the essential facts from the judge's findings. Informed by a police dispatcher on March 23, 1989, that shots had been fired in the vicinity of Brunswick Street and Blue Hill Avenue, a part of the Roxbury section of Boston, a Boston police officer directed his partner to drive their marked cruiser toward Intervale Street. En route, they received a second radio message from officers on the scene confirming that two or three African-American males were the shooters and that they were walking down Intervale Street towards Columbia Road garbed in "dark clothing."

So advised, the officers headed in the direction of Intervale Street, an area known to them as plagued by the "Intervale gang" -- the scene of much violence and drug dealing activity. Within three to four minutes, they observed from a distance of about one-half mile (it was still daylight), two persons walking toward them. As they drew closer, the officers noticed that both males wore dark clothing and were walking through the King School yard from the Intervale Street side headed toward Lawrence Avenue. One of the two men was the defendant. This location was less than three-quarters of a mile from where the gunfire had been reported.

The officers parked the cruiser on Lawrence Avenue, got out, and approached the two men as they emerged from the school yard toward the street. An officer began talking with the defendant while his partner spoke to the other person, who was considerably older than the eighteen year old defendant. The officer, who had been assigned to the area for several years, did not relax his gaze on the defendant when he casually asked him, "What's up? Did you hear any shots?" The two men had been walking about four to five feet apart so that the officer initially thought they had been together. There was no reply from either man.

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The officer then noticed that the defendant was clad in a black leather jacket, white shirt, and black sweatpants. His attention was focused on the defendant's hands (to ascertain whether the defendant was armed). He noted the right hand was tightly clasped over a partially opened package. The experienced officer recognized the package as one commonly used in the drug trade. The defendant tried to palm the package away from the officer's view, but it was too late. Protruding from an open end of the brown, taped package, the officer noticed an off-white substance, which he correctly thought to be cocaine. When the officer asked the defendant what he had in his hand, the defendant, at first, was unresponsive. Then he stated that he found the package in the school yard and thought he should hold onto it. The officer relieved the defendant of the item without any resistance. [Note 1] The defendant was arrested, and the other person left the scene. After the defendant's arrest, he told the officer that he had no connection to the other person involved in their encounter. The package, it turned out, from later analysis, contained 81.7 grams of cocaine.

This case is governed in material respects by Commonwealth v. Doulette, 414 Mass. 653 (1993), where the Supreme Judicial Court held that "[t]he Fourth Amendment [to the Federal Constitution] does not prohibit a police officer who is in a public place from taking appropriate action when the officer sees evidence of a crime in plain view from a spot where the officer has a right to be." Id. at 657. In large part, the rule in Doulette is intended to avoid the complications of determining whether the character of the encounter between police officers and suspects constitutes a "stop" in the Terry sense of the term. Id. at 655. Applying the logic of Doulette to this case, the officers' actions in this matter did not amount to a stop or a search.

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In the instant case, "there [was] no search at all because of the plain view character of the situation, and this means that the [officer's] observation is lawful without the necessity of establishing either pre-existing probable cause or . . . [any other] of the traditional exceptions to the warrant requirement." 1 LaFave, Search & Seizure Section 2.2(a), at 323 (2d ed. 1987). Here, the judge permissibly found that the contents of the package were clearly visible as the officer approached the defendant. See Commonwealth v. Irwin, 391 Mass. 765, 768-770 (1984). Contraband may be seized by the police without a warrant when it is in plain view and the police are in a place where they have a right to be. Commonwealth v. Marmolejos, 35 Mass. App. Ct. 1, 3 n.3 (1993), citing Sullivan v. District Ct. of New Hampshire, 384 Mass. 736, 742-743 (1981). Contrast Commonwealth v. Ferguson, 410 Mass. 611, 615 (1991) (officer saw narcotics for first time only after he removed plastic bag and its contents from defendant's jacket; defendant was not in custody). In broad daylight the defendant in the case before us walked through a school yard, open to and used by the public, grasping a partially open package of cocaine visible enough to enable a police officer to identify the contents as cocaine. In short, the officer's observation of the defendant's right hand was not a search within the meaning of the Fourth Amendment. Texas v. Brown, 460 U.S. 730, 740 (1983). There was no error in the denial of the defendant's motion to suppress.

2. Prosecutor's closing argument. The defendant testified on direct examination that he did not know what was contained in the package he was carrying and that he was to deliver the packet to his cousin. As the prosecutor was winding up a lengthy cross-examination of the defendant, she asked him if he intended to use the items contained in the package. That portion of the cross-examination is set forth in the margin. [Note 2]

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This line of inquiry, apparently, was an attempt by the prosecutor to persuade the jury that the defendant possessed the cocaine not for his personal use but for distribution. But the defendant previously had testified that he did not know what was contained in the package. Taken out of context, however, the assumption implicit in the questions, no matter how they were answered, was that the defendant knew what was contained in the package. Defense counsel objected to the misleading nature of the prosecutor's questioning.

The defendant does not challenge the jury's consideration of this testimony on appeal. Rather, he contends that in referring to the same testimony in her closing speech to the jury the prosecutor unfairly suggested, by calling the jury's attention to the defendant's negative response to the questions, that the defendant admitted in his testimony that he knew what was in the package and that he had procured the drugs for distribution.

In her closing argument, following a reference to the amount of cocaine seized, coupled with an argument that this pointed to an intent that "the defendant intended to distribute the cocaine and it was not for personal use," the prosecutor added the following. "And, if you also look at the defendant's testimony, he indicated he did not intend to use that cocaine himself. His intention was to pass it off to somebody

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else." There was no immediate objection by defense counsel. About a minute later, the prosecutor returned to the subject. "The defendant tells you, himself, he did not intend to use it." At this, defense counsel objected. The following exchange occurred at the side bar.

THE DEFENSE COUNSEL: "This is the second time she said he intended. His testimony is he didn't know what it was. I mean, how do we get from that that he said he didn't intend to use it? He didn't know what it was in the first place."

THE PROSECUTOR: "There was a specific question by myself that I asked him, whether he intended to use it."

THE DEFENSE COUNSEL: "I objected to it. I mean, you know, this is unfair argument. He said he didn't know what it is."

THE JUDGE: "And what she's arguing is that he did know what it was. Isn't that about it?

THE DEFENSE COUNSEL: "No. She's arguing that he admitted somehow that he knew what it was."

THE JUDGE: "Well I'm going to instruct the jury carefully that it isn't either one of your views as what some witness testified to that counts; it's what their memory is of what a witness testified to. I'm going to instruct them very carefully on that, and your objection is noted."

THE DEFENSE COUNSEL: "Thank you."

We agree with the defendant's contention: the prosecutor's reference to the defendant's intention went beyond the evidence. To some extent at least the comment was an unfair strike at the defendant's testimony. See Commonwealth v. Cobb, 26 Mass. App. Ct. 283, 287 (1988). Further, the prosecutor's

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error was not limited to "collateral issues" in that the prosecutor had the defendant admitting facts that would have justified a conviction for trafficking. See Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).

The prosecutor's misstep was not, however, outrageous and, standing alone, does not warrant reversal of the judgment of conviction. This is not a case in which the prosecutor in closing argument referred to excluded evidence -- the judge made no such ruling (see note 2, supra). Compare and contrast Commonwealth v. Burke, 373 Mass. 569, 575 (1977); Commonwealth v. Grimshaw, 31 Mass. App. Ct. 917, 919 (1991), S.C., 412 Mass. 505, 508-509 (1992). Further, we consider it unlikely that the jury were misled by the prosecutor's argument or that they did not take into account the defendant's denial that he knew what was in the package. Cf. Commonwealth v. Grimshaw, supra.

The prosecutor was entitled to argue that the defendant's possession of the cocaine was coupled with an intention to distribute, rather than confined to using the cocaine himself -- a lesser included offense. The judge had indicated (in a charge conference) he would permit the jury to consider the lesser-included offense. It would have been preferable to tell the jury that, in the event they reached the conclusion that the defendant knew that he possessed such a large amount of cocaine, they could, based on all the evidence, convict him of the distribution charge. Last, as he promised he would, the judge repeatedly instructed the jury that closing arguments are not evidence and clearly informed the jury that it was their memory of the testimony -- not the lawyers' -- that controlled their decision. See Commonwealth v. Kozec, 399 Mass. at 522-523; Commonwealth v. Krepon, 32 Mass. App. Ct. 945, 946 (1992). The defendant did not express dissatisfaction with the instructions.

Judgment affirmed.

BROWN, J. (dissenting). "It is long past time for prosecutors to prepare their closing arguments carefully in order to

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avoid the possibility of reversals of convictions because of prosecutorial error." Commonwealth v. O'Brien, 377 Mass. 772, 778 (1979). See Commonwealth v. McLeod, 30 Mass. App. Ct. 536, 541 (1991), and cases cited. There has been little improvement in the quality and propriety of closing arguments since I became a member of this court in 1976. In that very same year, Justice Braucher in Commonwealth v. Redmond, 370 Mass. 591, 597 (1976), cautioned against "sail[ing] unnecessarily close to the wind," and since then a plethora of opinions have rained down upon both defense counsel and prosecutor, warning, threatening, and admonishing. See, e.g., Commonwealth v. Kelly, 417 Mass. 266, 270-272 (1994), decided only two months ago, where the Supreme Judicial Court disagreed with this court's conclusion that the prosecutor's closing remarks were proper. [Note Dissent-1] For a similar outcome in a case decided by this court very recently, see Commonwealth v. Loguidice, post 940 (1994).

Nothing seems to get through. [Note Dissent-2] Why cannot prosecutors get it right? [Note Dissent-3] Why should appellate courts continue to reiterate that familiar refrain:

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"We remind prosecutors again that `[a]dvance preparation would eliminate from our consideration most aspects of closing arguments constantly being urged as improper.' [Commonwealth v. Smith, 387 Mass. 900, 903 (1983)], quoting Commonwealth v. Haas, 373 Mass. 545, 557 (1977)."

Commonwealth v. Phoenix, 409 Mass. 408, 428 (1991).

It is now my view that careless and flagrant disregard of the "rules of the road" and an obvious lack of preparation mandate summary reversal and a new trial. Appellate courts are being forced to this position as a last resort because this deplorable state of advocacy is today precisely as it was in 1979 when this court plaintively opined that "[t]here still appears no other way to get the point across to those prosecutors who do not prepare their closing arguments with care." Commonwealth v. Ryan, 8 Mass. App. Ct. 941 (1979), and cases cited. It cannot be gainsaid that "[t]houghtful and careful preparation would have saved the Commonwealth and this court much time and expense." Commonwealth v. McLeod, 30 Mass. App. Ct. at 541. I again remind prosecutors that "[p]rejudicial excesses in argument offered on behalf of the Commonwealth constitute prosecutorial error, not judicial error" (emphasis in original). Commonwealth v. Earltop, 372 Mass. 199, 206 (1977) (Hennessey, C.J., concurring). Until the public expresses sufficient outrage at this tremendous waste of funds and judicial resources, these improper arguments will continue. As for me, I will no longer sit idly by while the government's attorneys continue to flout the standards of our profession as well as the mandates of the Supreme Judicial Court. [Note Dissent-4] In sum, I would reverse, pure and simple, because a prosecutor again has exceeded the bounds of proper argument.

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A final comment is necessary. I am obliged to scold the Commonwealth's trial attorney for the unfair manner in which she attempted "to communicate [adverse] impressions by innuendo through questions which are answered in the negative." Commonwealth v. White, 367 Mass. 280, 284 (1975). Cf. Commonwealth v. Fordham, 417 Mass. 10, 20-21 (1994). I am otherwise in substantial agreement with the majority.