COMMONWEALTH vs. KENNETH CUTTY

LAURENCE, J. On appeal from his May, 1997, convictions for assault and battery and threatening to commit a crime, the defendant contends that the trial judge committed reversible error in ordering defense counsel not to argue the defendant's alibi defense (that he was in Florida at the time the offenses occurred in Boston) in his summation to the jury. The judge's rationale for that order was to penalize the defendant for failure to comply with the "notice of alibi" procedures, pursuant to Mass.R.Crim.P. 14(b)(1)(A) & (D) and 14(c) [Note 1], 378 Mass. 876877 , 880-881 (1979). We agree with the defendant that the

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judge's challenged ruling was an abuse of discretion that substantially impaired the defendant's constitutional rights to assistance of counsel and to present a defense [Note 2].

Six months before the scheduled trial, the prosecutor and defense counsel agreed to a pretrial conference report, which the judge adopted as an order. In that report, the Commonwealth specified the time, date, and place of the alleged offenses, and the defendant agreed that, if an alibi defense was to be offered, he would notify the Commonwealth, at least two weeks before trial and in writing, where he claimed to have been when the offenses occurred and to identify, by name, address, and date of

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birth, any alibi witnesses. As of the day of trial, the defendant had not provided such information to the Commonwealth.

Just after the case was called for trial, on May 30, 1997, defense counsel moved for a continuance until "later in the summer." He asserted that the defendant would testify that he was in Florida at the time the incidents in question occurred and that, if given more time, he could produce unspecified witnesses to support that alibi. Defense counsel concededly had been aware of the claimed alibi at least nine months earlier and had ample opportunity for investigation and preparation (which included obtaining public funds to hire a private investigator over seven months earlier). The judge accordingly denied the motion (a ruling not contested by the defendant, compare Commonwealth v. Porcher, 26 Mass. App. Ct. 517 , 518-520 [1988]), and the case proceeded to trial.

The Commonwealth elicited testimony from the victim and the two investigating officers to the effect that on the evening of June 14, 1996, the defendant had threatened and later beaten the victim (a YMCA desk attendant) as she walked home because she had prevented him from entering the YMCA to take a shower as the facility was closing. (The defendant was not apprehended until a month later when he appeared at the YMCA to take a shower.) During his cross-examination, defense counsel emphasized discrepancies in the victim's description of her assailant and the probability of her mistaken identification of the defendant.

At the close of the Commonwealth's case, defense counsel at side bar entered his "exception" to what he assumed had been the judge's pretrial ruling prohibiting any testimony regarding the defendant's claimed alibi [Note 3]. The judge correctly responded that counsel was free to call the defendant as a witness and to ask him "anything you want, and he can respond accordingly." See note 1, supra, Mass. Crim.P. 14(b)(1)(D) and (c)(2),, Commonwealth v. Edgerly, 372 Mass. 337 , 344 (1997); Commonwealth v. Guadalupe, 23 Mass. App. Ct. 97 , 100 (1986). The judge went on, however, to state that "I'm not permitting you to present an alibi defense . . . . I don't want you to present an alibi defense in your closing." In response to defense counsel's protestation that in his closing he would want to comment

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on and "go over all the testimony," the judge warned that he would "have to interrupt" counsel should he attempt "to do an alibi defense closing."

Following that exchange, the defendant took the stand to testify that he had never seen the victim before and had been living and working in Florida on the date of the crimes charged [Note 4]. He admitted, however, on a brief cross-examination, that he had no receipts or other documentation reflecting his trips to and from Florida or his stay in Florida. In his closing argument, defense counsel complied with the judge's forceful admonition and said nothing about the defendant's alibi or his testimony about having been in Florida at the critical time, but rather stressed the theme of the victim's inaccurate description of the defendant to the police and her mistaken identification while under the stress of the physical assault. The prosecutor, however, concluded his summation by mocking the defendant's "convenient," "self-serving," and undocumented claim to have been in Florida as "an incredibility." When defense counsel rose to object to these remarks, the judge ordered him to "sit down." [Note 5]

The judge's preclusion of defense counsel's mentioning the

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defendant's testimonial alibi in closing argument constituted prejudicial error. The defendant's alibi that he was in Florida on the day the victim was attacked was properly in evidence under article 12 and rule 14, the judge could not lawfully exclude or limit it. Consequently, defense counsel had every right to make a closing argument based upon and referring to that testimony and all fair inferences which could be drawn therefrom. See Commonwealth v. Earltop, 372 Mass. 199 , 205 ( 1971) (Hennessey, C.J., concurring); Commonwealth v. Freeman, 430 Mass. 111 , 118 (1999). The judge's challenged ruling deprived the defendant of one of the most critical elements of his constitutional rights in a criminal trial: "the opportunity finally to marshal the evidence" in his favor and "to sharpen and clarify the issues for resolution by the trier of fact." Herring v. New York, 422 U.S. 853, 862 (1975).

However broad the discretion of the trial judge may be to limit the scope of closings so as to guard against repetitive, redundant, and otherwise improper arguments to the jury, see Commonwealth v. Montecalvo, 367 Mass. 46 , 56 (1975), such power cannot extend to total preclusion of relevant arguments that "remain within the bounds of the evidence and the fair inferences from the evidence." Commonwealth v. Pettie, 363 Mass. 836 , 840 (1973). Cf. Herring v. New York, 422 U.S. at 859, 863; Commonwealth v. Miranda, 22 Mass. App. Ct. 10 , 13, 22-23 (1986) (denial of the opportunity to make a closing argument is unconstitutionally erroneous and per se prejudicial). Within those bounds, counsel is entitled "to assist the jury in their task of analyzing, evaluating, and applying [the] evidence . . . [to suggest] what conclusions the jury should draw from the evidence . . . [and to] 'fit all the pieces together so that they form a comprehensive and comprehensible picture for the jury.' " Commonwealth v. Ferreira, 381 Mass. 306 , 316 (1980). The elimination from defense counsel's closing of an argument founded upon testimony that was not merely relevant but essential to the defense to rebut the Commonwealth's case in chief - even if such restriction did not wholly foreclose a summation - requires that the judgment of conviction be reversed. See Commonwealth v. Bennett, 6 Mass. App. Ct. 832 (1978).

The judge's circumscription of defense counsel's closing was especially prejudicial in this case for two related reasons. First, the issue of credibility was fundamental to both sides of the trial: the victim's, as to the defendant being the assailant, and

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the defendant's, as to his alibi. By depriving defense counsel of the ability to endorse the credibility of the defendant's alibi based upon his testimony and his demeanor, the judge wrongfully excluded argument that "it [was] certainly proper for counsel to" make. Commonwealth v. Freeman, 430 Mass. at 118. In the face of the prosecution's closing, explicitly deriding the defendant's claim to have been in Florida, defense counsel's coerced failure to have made any mention of the defendant's testimony, much less his claimed alibi, effectively discredited the defendant. To the jury, it could well be taken as implying defense counsel's disbelief of his own client's testimony. Compare Commonwealth v. Triplett, 398 Mass. 561 , 569 (1986); Commonwealth v. Sarvela, 16 Mass. App. Ct. 934 , 935 (1983).

Had defense counsel acted voluntarily and in the absence of judicial compulsion, so grave and fundamental an omission would have deprived the defendant of an otherwise available, substantial ground of defense, and would be deemed ineffective assistance of counsel, particularly in a close case amounting to a duel of credibility [Note 6]. See Triplett, supra; Sarvela, supra. See also Commonwealth v. Westmoreland, 388 Mass. 269 , 273-274 (1983); Commonwealth v. Street, 388 Mass. 281 , 287-288 (1983); Commonwealth v. Haggerty, 400 Mass. 437 , 441-442 (1987); Commonwealth v. Cepulonis, 9 Mass. App. Ct. 302 , 305 (1980); Commonwealth v. Aviles, 31 Mass. App. Ct. 244 , 248 (1991). We can see no principled distinction between the identical result being brought about by judicial act rather than by attorney oversight or misjudgment.

In this connection, we reject the Commonwealth's contention that no harm was done because defense counsel argued "the defense of misidentification. [which] is indistinguishable from the defense of alibi." These "defenses" are conceptually distinct, compare Model Jury Instructions for Use in the District

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Court 6.01 and 6.05 (1995 ed.), even if frequently interrelated. Indeed, those very qualities were insightfully noted in a situation analogous to the present case and similarly indicative of prejudice to the defendant:

"While trial counsel did not leave the defendant without any defense . . . his failure even to mention the alibi evidence [testified to by the defendant] in his closing argument necessarily diminished, perhaps materially, the impact of the misidentification defense [which counsel did argue to the jury]. The two defenses were mutually reinforcing, and the unexplained jettisoning of one defense clearly jeopardized the credibility of the related defense."

Commonwealth v. Aviles, 31 Mass. App. Ct. at 248.

Finally, the prejudice attendant upon the judge's error in foreclosing argument on the defendant's alibi defense was exacerbated by his failure - more accurately, his implicit refusal - to instruct the jury on the alibi issue [Note 7]. Such an instruction, in its current, more balanced, form might have inclined the jury to a more critical assessment of the Commonwealth's case that could have influenced the "reasonable doubt" analysis in the defendant's favor, particularly given the less-than overwhelming character (see note 6, supra) of the Commonwealth's evidence [Note 8].

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The judgments of the District Court are reversed and the verdicts are set aside [Note 9].

So ordered.