Summary
The Supreme Judicial Court of Massachusetts affirmed the defendant’s convictions for armed assault with intent to rob. The court held that the prosecutor did not improperly argue facts outside the evidence and acted properly by reading portions of a witness’s trial testimony from a transcript during closing argument. It rejected the Appeals Court’s proposed requirement that counsel make a preargument proffer before reading trial testimony, while noting that opposing counsel should receive a copy of the transcript.
Topics
Practice areas
Questions Presented
- Whether the prosecutor improperly argued facts not in evidence by stating that Forte's police statement was made before any promise, deal, or sentencing recommendation from the district attorney's office.
- Whether a prosecutor may read verbatim portions of a witness's trial testimony from a transcript during closing argument without first making a proffer or following a court-imposed protocol.
- Whether the prosecutor's reading of Forte's testimony unfairly emphasized or bolstered Forte's credibility.
Holdings
- The prosecutor did not commit misconduct by arguing that Forte made his statement before any deal, promise, or sentencing recommendation because testimony supported those assertions, and Forte's hope for favorable treatment did not establish an actual promise or agreement.
- A prosecutor may read verbatim from a transcript of a witness's admitted trial testimony during closing argument without first making a proffer or complying with a special protocol, provided that the prosecutor furnishes opposing counsel with a copy of the transcript. The judge need become involved only if an objection is made.
- The prosecutor acted properly in reading the supplied transcript, and the reading did not constitute impermissible emphasis or bolstering of Forte's credibility.
Key quotations
“We adopt the latter approach, discerning, at this time, no need to impose a particular proffer or protocol on counsel.” (at 695)
“We see no reason to prohibit what the prosecutor did here so long as the prosecutor furnishes opposing counsel with a copy of the transcript from which he or she expects to read.” (at 695-696)
“The judge needs to be involved only if there is an objection, the resolution of which will be within the judge's discretion.” (at 696)
Factual background
The defendant was convicted based on evidence that he participated with two accomplices in planning and executing a robbery on January 22, 2000. One accomplice, James Forte, gave police a statement implicating himself and the defendant on January 23, 2000, before any plea agreement or sentencing recommendation had been discussed with the district attorney's office. During closing argument, the prosecutor read verbatim portions of Forte's trial testimony from a transcript that had been provided to defense counsel, without first making a proffer to the judge.
Procedural history
A jury found the defendant guilty of two indictments charging armed assault with intent to rob. The Appeals Court affirmed the convictions, vacated the order denying the motion for a new trial, and remanded for an evidentiary hearing. The Supreme Judicial Court granted further appellate review only to address alleged prosecutorial misconduct in closing argument and affirmed the convictions.