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Massachusetts Appeals Court Affirms Dorchester Gun Conviction

The Massachusetts Appeals Court today upheld the conviction of a man caught with a gun in a car in Dorchester, ruling the prosecutor’s reference to school shootings and snipers in his opening statement was not error.  The name of the case is Commonwealth v. Lodge.  

Boston police officers responded to a disturbance on Hansborough Street in Dorchester at just before midnight on July 28, 2011.  A crowd of about 40 people started to scatter when the cops showed up.  One of the officers saw the defendant sitting in the back seat of a nearby Toyota Corolla.  The defendant was sitting on a child’s booster seat and his body was, consequently, up near the ceiling of the car.  When he saw the cop, the defendant allegedly lunged forward toward the middle of his legs.  The police stopped the Corolla and ordered the defendant and other occupants to exit.  The officer who saw the defendant moving around the interior of the car searched the backseat and found a purse containing a gun.  The purse also contained the license of the front seat passenger.  The defendant was arrested and transported to the police station where he was advised of his Miranda rights.  He denied knowing anything about the gun and said he did not know the other people who were in the car with him.  He was charged with carrying a firearm without a license.  His first three trials resulted in mistrials.  His fourth trial resulted in his acquittal of some of the minor charges lodged against him but a hung jury on the carrying charge.  In his fifth trial, the jury convicted the defendant and he appealed.

The defendant’s primary argument on appeal was that the prosecutor had made inappropriate comments in his opening statement that had improperly appealed to the emotions of the jurors.  In his opening statement, the prosecutor said, “[g]uns and firearms, in particular, have been a hot topic over the last few years.  Congress, this country as a whole, school shootings, snipers, guns used in self-defense, debate’s gotten pretty heated….”  The prosecutor then told the jury those issues had nothing to do with the defendant’s case, and went on to discuss the allegations against the defendant.  The Appeals Court said while the prosecutor’s comments were “not a model for an opening statement,” they did not constitute legal error.  The Court said the prosecutor told the jurors this case did not involve school shootings, and therefore the jurors could not be thought to have considered that topic.  Because the prosecutor did not commit an error, the defendant’s conviction was permitted to stand.

One of the three justices on the panel disagreed with the Court’s conclusion that the prosecutor’s opening statement was proper.  Justice Mary Sullivan pointed out the purpose of an opening statement is to outline the evidence the attorney expects to be admitted at trial.  Because evidence of school shootings and snipers would never be admitted at the defendant’s trial, the prosecutor should not have referenced those topics in his opening statement.  The prosecutor’s statement also, according to Justice Sullivan, was improperly argumentative and appealed to the jurors’ fear or prejudice.  Justice Sullivan correctly pointed out that the prosecutor’s opening statement would have undermined the jurors’ task in evaluating the evidence without prejudice or emotion.  Despite concluding the prosecutor committed error, Justice Sullivan found the error did not create a substantial risk of a miscarriage of justice and accordingly agreed the defendant’s conviction should stand.

This is a troubling case.  The prosecutor had no reason whatsoever to mention inflammatory topics related to guns other than to scare the jury.  As Justice Sullivan’s concurrence argues, the prosecutor’s comments were absolutely inappropriate.  The Appeals Court should have reversed the defendant’s conviction and awarded him a new trial.

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