COMMONWEALTH vs. HOLLY KOZEC.

WILKINS, J. Convicted of assault and battery by means of a dangerous weapon upon a person sixty-five years of age or older (but acquitted of assault with intent to commit murder), the defendant appealed to the Appeals Court, which reversed her conviction. Commonwealth v. Kozec, 21 Mass. App. Ct. 355 (1985). Supported by the Attorney General and every other district attorney in the Commonwealth, the district attorney for the Eastern District applied for further appellate review, which we granted.

The Appeals Court reversed the conviction largely on the basis of prejudicial improprieties in the prosecutor's closing argument. Id. at 364-365. The Commonwealth complains that the "opinion lacks application of specific guidelines as to permissible conduct for prosecutors." We shall discuss this complaint, first generally and then specifically as to this case. We agree with the Appeals Court's conclusion that the judgment must be reversed.

We briefly summarize the basic facts concerning the stabbing of the victim, which are more fully set out in the Appeals Court opinion. Id. at 356-358. There is no dispute that late one July night in 1983, the defendant, a nineteen year old woman, stabbed the victim, a seventy-four year old man, on a rural road in Salisbury. The victim testified that he offered the defendant a ride home to Amesbury and she accepted. Thereafter, it is agreed, the victim turned his vehicle off the main road and stopped the car. There were no other eyewitnesses to what next happened. The defendant and the victim differ significantly as to what was said and done. The victim said that the defendant attacked him with a knife because he would not pay her $50 for sexual activity she offered him. On the other hand, the defendant, who admitted that she was intoxicated, testified that she rejected the victim's offer of sexual activity for money, and he thereupon attacked her. She testified that she grabbed a knife, but could not recall stabbing the victim. After some intermediate activity, which we shall

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discuss in part later, the defendant drove the victim, who had been stabbed twice in the chest, to a hospital in Newburyport.

Between the July, 1983, stabbing and the July, 1984, trial, the victim's physical condition substantially deteriorated. He suffered a stroke; he lost a great deal of weight; his sight was impaired by cataracts; and his hearing deteriorated. Prior to July, 1983, he had had a laryngectomy that required him to use a stoma voice amplifier to talk. He testified, with the aid of his daughter as an "interpreter," from a wheelchair.

The Prosecutor's Closing Argument

1. The Commonwealth argues that recent appellate treatment of challenges to prosecutors' final arguments has had an improper chilling effect on their forceful advocacy because convictions have been overturned and prosecutors threatened with discipline for the violation of governing rules which, it is said, are subjective and imprecise. The Commonwealth also argues that the system operates inequitably in this respect because it does not deal with overzealous, unfair, or unethical closing arguments of defense counsel.

The rules governing prosecutors' closing arguments are clear in principle. We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence. See Commonwealth v. Earltop, 372 Mass. 199, 205 (1977) (Hennessey, C.J., concurring). On the other hand, a prosecutor should not refer to the defendant's failure to testify, [Note 1] misstate the evidence or refer to facts not in evidence, [Note 2] interject personal

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belief in the defendant's guilt, [Note 3] play on racial, ethnic, or religious prejudice [Note 4] or on the jury's sympathy or emotions, [Note 5] or comment on the consequences of a verdict. [Note 6]

The problem is that, on the facts of given cases, close questions arise whether the prosecutor has gone over the line between fair and improper argument. In such cases, we must and do recognize that closing argument is identified as argument, the jury understands that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument. See Commonwealth v. Benjamin, ante 220, 223-224 (1987). [Note 7] A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed. See Commonwealth v. Palmariello, 392 Mass. 126, 134 (1984); Commonwealth v. Bradshaw, 385 Mass. 244, 277 (1982) ("The jury could be expected to take both arguments with a grain of salt"); Commonwealth v. Johnson, 372 Mass. 185, 197 (1977); Commonwealth v. Coleman, 366 Mass. 705, 714 (1975). In this case, the jury may have done just that kind of sorting out because they in part rejected the position of each side, returning a verdict of not guilty on one charge and guilty on the other.

Part of the uncertainty of the current law concerning prosecutorial error in final argument concerns the unpredictability

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on appeal of the consequences of an improper final argument. The consequences of prosecutorial error depend on a number of factors, such as: Did the defendant seasonably object to the argument? [Note 8] Was the prosecutor's error limited to "collateral issues" or did it go to the heart of the case (Commonwealth v. Shelley, 374 Mass. 466, 470-471 [1978])? What did the judge tell the jury, generally or specifically, that may have mitigated the prosecutor's mistake, and generally did the error in the circumstances possibly make a difference in the jury's conclusions? See Commonwealth v. Cifizzari, 397 Mass. 560, 579-580 (1986); Commonwealth v. Bourgeois, 391 Mass. 869, 884-885 (1984). On numerous occasions, the impact of an improper final argument has been mitigated by the judge's forceful instructions to the jury that the argument was inappropriate and should be disregarded. See, e.g., Commonwealth v. Borodine, 371 Mass. 1, 10 (1976), cert. denied, 429 U.S. 1049 (1977); Commonwealth v. Domanski, 332 Mass. 66, 69 (1954). See also Commonwealth v. Brown, 392 Mass. 632, 641-642 (1984). Contrast Commonwealth v. Hoppin, 387 Mass. 25, 31 (1982); Commonwealth v. Hawley, 380 Mass. 70, 82-86 (1980). All these considerations must be undertaken on a case-by-case basis, and, although patterns of disposition may emerge from the cases in which there is prosecutorial error in the final argument, no satisfactory bright line rules can be found or could be written. Because the prosecutor was the source of the error, the Commonwealth should not express distress that the consequences to the defendant of the error

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depend on a judgmental assessment of several factors, particularly where, in a given case, the weighing of factors may preserve a conviction in spite of the error.

The Commonwealth is correct that it and its prosecutors are held to a stricter standard of conduct than are errant defense counsel and their clients, or, put another way, it is true that the government may suffer more serious consequences from improper closing argument than will the defense. We have rejected the argument that a prosecutor may simply "fight fire with fire" and exceed the normally proper limits of argument because defense counsel made an improper, excessive argument. [Note 9] Although defense counsel's argument may justify a particular rebuttal from the prosecutor, the prosecutor, as a representative of the government, must hold himself to a consistently high and proper standard. See Commonwealth v. Shelley, supra at 472. The prosecutor may object to defense counsel's argument if he regards it as improper, and he may request appropriate curative instructions. The judge may intervene spontaneously to stop improper argument and should give curative instructions, preferably forthwith. See Commonwealth v. Hawley, supra at 85. [Note 10] Defense counsel should be careful because a judicial reprimand in such circumstances does not aid the defendant. See Commonwealth v. Earltop, supra at 207 (Hennessey, C.J., concurring). The fact remains, however, that no

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matter how inappropriate defense counsel's closing argument may have been, it probably will have no bearing either in defining the proper limits of the prosecutor's argument or in assessing the defendant's chances on an appeal challenging the prosecutor's closing argument.

2. The defendant argued, and the Appeals Court agreed, that some of the prosecutor's remarks on why the jury should believe the victim's testimony were "an impermissible appeal to the jury to decide the case on the basis of sympathy." Commonwealth v. Kozec, 21 Mass. App. Ct. at 362-363. [Note 11] The Appeals Court expressed its disapproval of the prosecutor's argument in most forceful terms. [Note 12]

The basic issue at trial was the credibility of the victim and the defendant. Because the victim testified, this case does not

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involve an appeal for sympathy for a deceased victim. It concerns a victim-witness whose testimony the prosecutor wanted the jury to believe. It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances and appearance of a witness, a particular witness should be believed or disbelieved. The jury were aware from the testimony, and both counsel reminded them, that the victim's current physical condition in large measure was not caused by the injuries the defendant inflicted on him.

Defense counsel fairly argued that, because members of his family were listening in the courtroom, the victim did not tell the truth about what he had said and what happened in his motor vehicle with the defendant. The prosecutor replied in effect that the victim was in such a physical state that telling the truth, even if damaging to his reputation, would not matter and that in his condition he should be seen as more apt to be candid than if he were in robust health. Whatever one thinks of the logic or illogic of the claim that people in such a condition tend to be more believable than others, the argument is directed to credibility based on what the jury saw and heard. The defendant did not ask for an instruction that sympathy for the victim should play no role in the jury's deliberations. The prosecutor's argument in any event did not exceed proper limits.

3. The evidence bearing on whether the defendant may have sought to trap Frank Saporetto, the doorman at the Tic Toc Club where she worked as a barmaid, into taking the victim to the hospital without her accompanying him came first from Saporetto and later from the defendant. We set forth the evidence in the margin. [Note 13]

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The question here is whether the prosecutor's argument that the defendant may have been trying to involve Saporetto while she slipped away is warranted by the evidence. [Note 14] The Appeals Court thought the argument unfair because it was contradicted by the evidence. Arguments that are unsupported by the evidence and thus are speculative and conjectural are, of course, improper. Commonwealth v. Connor, 392 Mass. 838, 853 (1984). Commonwealth v. Clary, 388 Mass. 583, 593-594 (1983). Commonwealth v. Redmond, 370 Mass. 591, 594-595 (1976). We agree with the Appeals Court that the inference that the defendant had tried to trap Saporetto cannot fairly be drawn from the evidence.

The prosecutor's misstep was not, however, outrageous and, standing alone, might not warrant reversal of the judgment of conviction. Certainly the defendant's admitted behavior after the stabbing did not seem fully consistent with a sense of total innocence. She did not seek the most immediately available help. She did not drive directly either to the police station (which was across a street from the Tic Toc Club) or to a hospital. Going instead to Saporetto for help justified prosecutorial comment on the defendant's behavior as evidence of consciousness of guilt. The prosecutor went too far, however, in suggesting that the defendant may have undertaken to trap Saporetto.

By overruling the defendant's valid objection, the judge appeared to give judicial endorsement to the prosecutor's improper argument. Commonwealth v. Cobb, 374 Mass. 514, 521 (1978). A few words from the judge, at the time of the defendant's objection or later, probably would have cured the error. The judge could have told the jury that the argument was improper or, if in doubt about the argument's propriety, the judge could have taken a neutral posture and advised the

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jury that, if their memory of the evidence did not support the prosecutor's argument, they should disregard it. [Note 15]

4. We come now to portions of the prosecutor's argument that are not properly before us as independent grounds for reversal of the conviction. Once a properly raised objection to a prosecutor's argument is found to be valid, the entire record, including the balance of the prosecutor's argument, becomes relevant in determining whether the error was prejudicial to the point of requiring a reversal of the conviction. See Commonwealth v. Burke, 373 Mass. 569, 577 (1977).

One aspect of the prosecutor's closing argument objected to below, not challenged on appeal, but regarded by the Appeals Court as "troublesome" ( 21 Mass. App. Ct. 364 n.7), is the prosecutor's comment that the defendant looked sorry when the victim testified because she knew the truth about what happened between them would come out. [Note 16] This assertion of consciousness of guilt on the basis of the prosecutor's perception of the defendant's expression when the victim testified was unfair and improper because an inference of guilt was not warranted. See Commonwealth v. Young, post 527 (1987). The argument amounts to the prosecutor's testifying that the defendant looked sorry at that time and states that he knew

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why. In fact, a number of emotions may cause an appearance which is similar to an expression of sorrow, and there could have been a number of reasons for any sorrow the defendant may have felt. To urge an inference of guilt from such an appearance is unwarranted. See Commonwealth v. Hoppin, 387 Mass. 25, 30 (1982); Commonwealth v. Villalobos, 7 Mass. App. Ct. 905 (1979). [Note 17]

We also agree with the Appeals Court's criticism of the prosecutor's argument (see 21 Mass. App. Ct. at 361 n.3) that an open jar of Vaseline in the defendant's purse suggested the possibility that she was prepared for sexual conduct when she got in the victim's motor vehicle and further suggested that she might have been a prostitute. [Note 18] No fair inference could be drawn from the presence of the Vaseline that the defendant might be a prostitute or that she was prepared for sexual conduct. If the jury were to conclude that she was a prostitute and entered the defendant's vehicle anticipating sexual conduct, that would have done much to corroborate the victim's testimony that the defendant was the instigator of the struggle. The argument was prejudicial.

Jello Wrestling

The judge denied the defendant's pretrial motion in limine which sought a ruling that evidence of the defendant's employment as a jello wrestler was inadmissible. At trial Saporetto testified that he had seen the defendant working at the "Frolics" as a jello wrestler, wrestling with women in a ring of jello. [Note 19]

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The Commonwealth seeks to justify the admission of the evidence as tending to show the defendant's special agility and strength and thus to support the credibility of the victim's testimony concerning the way the defendant threw him around.

The Appeals Court concluded, we think correctly, that the evidence had no probative value and that its admission was prejudicial because "it furthered the prosecutor's apparent goal of depicting Kozec in the minds of the jury as a promiscuous woman." 21 Mass. App. Ct. at 364. There was no evidence that jello wrestling indicates superior agility and strength. Nor is there, however, any direct evidence prejudicial to the defendant of the circumstances of jello wrestling, the attire worn, the desired physical attributes of participants, or the likely audience.

Standing alone, the admission of this evidence, which the prosecutor did not argue to the jury, might not require reversal of the conviction, but coupled with other problems presented by the prosecutor's closing argument it does. Even if we were to attribute some relevance to the jello wrestling evidence, the prejudice to the defendant of the admission of that evidence would outweigh it. We suspect that a jury would view jello wrestling at a place called the Frolics, not as a test of athletic skill but rather as a form of exhibitionism with demeaning sexual overtones, in a sense as evidence of the defendant's bad character. The defendant's character was not in issue and, as all agree, could not have been used to show criminal propensity. See Commonwealth v. Roberts, 378 Mass. 116, 129 (1979); Commonwealth v. Yelle, 19 Mass. App. Ct. 465, 468-472 (1985).

Conclusion

Although we have rejected a challenge to one portion of the prosecutor's closing argument with which the Appeals Court agreed (see 520-521 above), we concur with the Appeals Court's conclusion that collective errors in the prosecutor's

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closing argument and the admission of evidence that the defendant had been a jello wrestler require reversal of her conviction. The prosecution undertook, by evidence or argument or both, to portray the defendant as a prostitute with a background as a jello wrestler, who tried to trap another into taking responsibility for what she did and who showed her guilt by appearing sorry in the courtroom. None of this was proper. All of it was prejudicial. The prosecutor exceeded the limits of what could reasonably be argued on the evidence, not in an egregious way but simply in trying to get more out of the evidence and the defendant's courtroom appearance than he was fairly entitled to.

We agree with the Appeals Court's comments on matters that may arise on retrial.

Judgment reversed.

Verdict set aside.