Summary
The Massachusetts Supreme Judicial Court affirmed the defendant’s convictions for attempted subornation of perjury and making a false report to police officers. The court held that the indictment was sufficient because, under the applicable statute, the attempted subornation and overt act were the same, and it found sufficient evidence supporting the conviction. The court also rejected challenges concerning cross-examination of a defense witness and alleged prosecutorial vouching.
Topics
Practice areas
Questions Presented
- Whether the indictment for attempted subornation of perjury was insufficient because it did not separately allege an overt act.
- Whether the evidence was sufficient to support the conviction for attempted subornation of perjury.
- Whether the prosecutor improperly impeached a defense witness with her pretrial silence without first laying the required foundation.
- Whether the prosecutor improperly vouched for Bragg's credibility during closing argument.
Holdings
- An indictment charging attempted subornation of perjury is sufficient when it tracks the statutory language and the crime itself constitutes the overt act; a separate overt-act allegation is not required in those circumstances.
- The evidence was sufficient to support the conviction for attempted subornation of perjury.
- The defendant was not entitled to relief from the prosecutor's question concerning the defense witness's failure to report exculpatory information because the objection was untimely and the judge's instruction cured any potential problem, eliminating a substantial risk of a miscarriage of justice.
- The prosecutor did not improperly vouch for Bragg's credibility by arguing, based on the trial evidence and in response to the defense attack, that Bragg had testified truthfully.
Key quotations
“There is no merit to the defendant’s argument that the indictment failed to allege an overt act, because attempted subornation of perjury, in violation of G. L. c. 268, § 3, is a type of attempt crime where the crime itself and the overt act are one and the same.” (454 Mass. at 15)
“A prosecutor may not assert his or her personal opinion as to the credibility of a witness or the guilt of an accused.” (454 Mass. at 18)
“However, the prosecutor may comment on evidence developed at trial and draw inferences from such evidence.” (454 Mass. at 18)
Factual background
The defendant reported to police that John Borghese had thrown a brick through the defendant's car window, although the defendant's associate, Noah Bragg, testified that the defendant had thrown the brick through his own window and staged the resulting injuries and evidence. Before Borghese's trial, the defendant had several conversations with Bragg in which he asked Bragg to corroborate the defendant's account, including a conversation outside the courthouse on the day of Borghese's trial. The defendant was subsequently convicted of attempting to procure Bragg to commit perjury and of making a false report to police officers.
Procedural history
After the defendant was indicted and tried, a jury convicted him of attempted subornation of perjury and making a false report to police officers. He appealed, and the Supreme Judicial Court transferred the case from the Appeals Court on its own motion. The court rejected all claims of error and affirmed the convictions.