Trivial Pursuit Instructions

[Derrik Navarro]

Ata criminal trial, the judge's instructions adequately cured any prejudice that might have arisen from the display of a photograph of the victim's wound during much of the prosecutor's argument [30-31], as well as from comments by the prosecutor during his closing suggesting that the defendant had used a double-edged knife [31] and that the defendant's conduct was shocking [31-32]; moreover, the prosecutor did not err in commenting on the implausibility of the defendant's claim of accident [32-38].

LAURENCE, J. Convicted of armed assault with intent to kill (G. L. c. 265, 18 [b]), [Note 1] and assault and battery by means of a dangerous weapon (a knife) (G. L. c. 265, 15A[b]), the defendant, Keith D. Correia, makes a sole appellate challenge to several comments by the prosecutor in closing argument, which he asserts were improper and prejudicial. We affirm.

Background. The jury could have found the following facts. In the early morning (about 1:00 A.M.) of September 13, 2001, Carlos Costa went from his second-floor apartment in New Bedford into the unlit, "pitch black" backyard of the apartment house in pursuit of his sister's puppy, a six month old miniature

pug named Pudgy, who had run down the stairs and into the yard. As he followed Pudgy's bark, he heard someone say, "Get the fuck out of here before I kick you." Costa said into the darkness, "It's only a puppy," and then came upon the defendant (whom he did not know but recognized as a daily visitor to the neighborhood, speeding in and out on his moped). The defendant replied to Costa, "Get the fuck out of here before I stab you." Costa said, "Whatever," and continued walking toward the street. Hearing a sound, he turned to see what it was and immediately felt a knife being plunged into his stomach and then pulled out. The defendant had come up from behind and, as Costa turned, had stabbed him.

Having heard the events outside, Costa's mother and sister came downstairs and saw Costa and the defendant facing each other, Costa bleeding profusely from his wound and the defendant holding a knife covered with blood. The defendant turned and mounted his moped, ignoring the sister's demand that he not leave, and raced out of the backyard. He momentarily lost control of his vehicle, crashed into something, and fell over, but then hopped back on and rode off, as Costa's sister hurled a rock at him. The police and an ambulance soon arrived and took Costa (who had fallen to the ground and felt faint) to the hospital, where he underwent surgery for a pierced liver and spent five days recovering from his wound.

The police spent over a month searching for the defendant, who had been unhesitatingly identified by Costa and his sister and who never returned to the neighborhood after the incident. He could not be located by the police, despite constant searches for him and several visits to his last known addresses without success. He was finally arrested when encountered in the New Bedford District Court house sitting outside the probation office.

In a statement to the police, the defendant said that he had been visiting a friend and was in the backyard repairing his moped with his pocket knife when the dog charged up to him, barking and nipping at his legs. A man (he did not recognize Costa) then came up to him, saying, "Don't yell at my dog." While he was bending over at the waist to slash at the dog with his knife, he was struck in the back by the man. Swinging his

body up, he noticed blood coming from and running down the man's shirt and chest. He then left as two women ran toward him, yelled at him, and threw a rock at him. Asked by the police if he had stabbed the man, the defendant responded, "Maybe I did," but could not recall one way or the other. He claimed that the knife must have fallen out of his pocket as he rode home that night. At trial, the defendant (who did not testify) relied primarily on this statement (to which the arresting officer testified) as the basis for his defense of accident. His counsel conceded that the defendant had stabbed Costa but had done so accidentally while holding the knife to ward off the puppy nipping at his legs, as a reflexive response to Costa's having struck him in the back. [Note 2]

Discussion. The defendant faults the prosecutor for four alleged errors in his closing argument, to all of which he objected: (1) leaving the photograph of Costa's abdominal wound (characterized as "graphic" and "grisly" by the defendant) on the court room's television monitor for much of his argument; (2) asserting that the nature of Costa's wound suggested that the defendant had used "a double-edged knife"; (3) deriding the defendant's theory of accident by saying:

"An accident, you apologize. You don't flee, when [Costa's mother and sister] tell him to wait, and he knows that the police are coming. He gets on his moped and drives away not to be seen again at that address ever, although he had been a frequent visitor. He doesn't know what he did? He doesn't have a guilty knowledge of what he did?"

"You know from your life experience that there are people in this world whose paths we would choose not to cross. In the daytime we see them, and we know to keep clear of them. And if we were unfortunate enough as human beings

to bark at them, or in Pudgy's case bark at them, they would just as soon stab you as look at you. . . . Carlos Costa didn't know that when he went into the backyard and ran into Keith Correia, that he was one of those people. But you know from the evidence in this case that he is." [Note 3]

The defendant contends that by this latter comment the prosecutor was arguing that the jury should consider the defendant's "bad character," as a violent person who stabbed people frivolously, and as evidence that he was predisposed to and did commit the crimes charged. We agree, however, with the Commonwealth that the challenged conduct of the prosecutor during his closing either was within the bounds of proper argument or could not have prejudiced the defendant.

1. As to the display of the photograph, which the defendant attacks as "calculated to appeal to the jury's sympathy," the trial judge expressly found that "the Commonwealth did not unduly dwell on it. In fact, he moved it different times so the jury was not even looking at the television. I watched that. It was on my screen, but their eyes were following -- as usual, they follow both of you when you make final argument." Moreover, as the judge noted, and defense counsel acknowledged, "[t]he jury will have it for a longer time in front of them while they deliberate."

In any event, " 'whether the inflammatory quality of a photograph outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge.' Commonwealth v. DeSouza, 428 Mass. 667 , 670 (1999), and cases cited. 'In order to find an abuse of discretion, "it is necessary to decide that no conscientious judge, acting intelligently, could honestly have taken the view expressed by [her]." ' Commonwealth v. Jaime, 433 Mass. 575 , 579 (2001), quoting Commonwealth v. Medeiros, 395 Mass. 336 , 351 (1985). The defendant has failed to [address, much less] meet[,] this heavy burden." Commonwealth v. Anderson, 445 Mass. 195 , 208-209 (2005).

2. As to the prosecutor's suggestion that the defendant had used a "double-edged knife," the judge concluded that no such inference could be drawn from the photographic evidence of the wound, a subject that required expert testimony, and explicitly directed the jury that they could not infer the use of such a knife because there was insufficient evidence on which to base it. Consequently, even if error occurred, it was fully corrected and could not have influenced the jury. See Commonwealth v. Leno, 374 Mass. 716 , 719 (1978); Commonwealth v. Pillai, 445 Mass. 175 , 190 (2005) (jury presumed to follow judge's instructions). [Note 4]

The prosecutor's statements here did not exceed the bounds of fair inference from the evidence, and the jury -- admonished by both the judge and counsel to apply their common sense and experience in their deliberations -- did not have to engage in

impermissible conjecture in order reasonably to draw the commonsense inference suggested by the prosecutor, that the defendant had guiltily fled the scene and knew that the police were coming. This was rationally inferable from the evidence that the defendant had already threatened to stab Costa without reason or provocation; that he was aware he had seriously injured Costa from Costa's verbal and physical reactions and the copious flow of blood (which stained Costa's clothing and the ground); that he had to have realized that the police would be summoned to respond to and investigate such a serious, arguably criminal, and potentially life threatening incident; that despite being told he had to stay, he immediately left the scene in a precipitate manner that indicated a determined effort to escape the consequences of his action; and that his culpable state of mind on that occasion could be inferred from his subsequent conduct, in never returning to a neighborhood he had previously been visiting daily, and in being absent from all of his known addresses for weeks as the police searched for him in vain. (As to the latter point, see Commonwealth v. Cardarelli, 433 Mass. 427 , 434 [2001], and cases cited.) [Note 5]

defendant being "one of those people" who "would just as soon stab you as look at you," appears problematic only when wrenched out of context from the prosecutor's initial point (that we all recognize the danger of violence from certain types of people because they take disproportionate offense at trivial matters) and his culminating observation (that the jury would be able to identify the defendant as such a person from the evidence). See discussion, supra. Rather than a gratuitous comment on the defendant's violent character, as the defendant contends, it was a fair, if hard, blow arising from the frightening circumstances of the case: a man walking in his own backyard is threatened with stabbing without cause by a total stranger, retreats, then unexpectedly has a knife plunged into his abdomen and is left, gravely wounded and heavily bleeding with a life threatening injury, by the stranger, who takes time to withdraw the knife and then disappears into the night. A reasonable juror could view such a senseless, unprovoked, unexpected, and savage attack as an exceptionally cruel and vicious act reflecting callous indifference to the sufferings of others, and as particularly cold blooded by reason of the use of a knife, which requires close contact with the victim.

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