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Massachusetts Appeals Court Affirms Gun Convictions Despite Prosecutor’s Improper Cross-Examination

The Massachusetts Appeals Court today upheld a Maine man’s convictions for illegally possessing two loaded guns in Boston, even though the assistant district attorney asked a series of inappropriate questions to one of the defendant’s witnesses.  The name of the case is Commonwealth v. Knowles

On January 12, 2014, Boston police officers found the defendant sitting alone in a truck in a Jamaica Plain parking lot.  It was the middle of the night and the officers approached the truck to see if the defendant needed assistance.  The defendant was staring off into the distance and quietly talking to himself.  When the cops tried to get the defendant out of the truck, he threatened to shoot them.  The defendant was handcuffed and the officers then searched the area around his truck, finding a revolver, a semiautomatic pistol, marijuana, and the defendant’s personal items on the ground.  After receiving his Miranda rights, the defendant said the guns belonged to him and were a gift from his girlfriend.  He said he didn’t think he needed a permit for them.  At trial, the defendant testified that the day before he was arrested, he was driving from Maine to Foxwoods Casino when he was “detoured” in Boston and ended up going to an ice show at the TD Garden.  A forensic psychiatrist testified it was his opinion that the defendant was intoxicated on marijuana, alcohol, and prescription medications during his interaction with the police.  The defendant’s girlfriend also testified at the trial and told the jury she had never seen the defendant with a gun during the four years they had lived together.  Following his convictions, the defendant appealed.

The primary issue on appeal was the propriety of the prosecutor’s cross-examination of the defendant’s girlfriend.  After the girlfriend testified that she had never seen the defendant with a gun, the prosecutor asked her a series of questions related to a conversation the girlfriend had allegedly had with a Maine state trooper.  The prosecutor had a report from the Maine trooper indicating the defendant’s girlfriend told him: she had seen the defendant carrying a pistol in his jacket; the defendant had previously possessed bullets; and the defendant bought new guns after his father had repossessed his older guns.  The defendant’s girlfriend denied making any of these statements to the Maine trooper, but the judge allowed the prosecutor to ask the questions in front of the jury.  The problem was that the prosecutor did not intend to call the Maine trooper to testify at the defendant’s trial.  After the defendant’s girlfriend denied making the statements, it would have been proper for the prosecutor to have the Maine trooper impeach the girlfriend by testifying that she had, in fact, made the statements.  But because the prosecutor had no intention of calling the Maine trooper, her questions to the girlfriend violated the rule against cross-examination by innuendo.  When challenging a witness with inconsistent statements she made on a prior date, an attorney conducting the cross-examination is required to be prepared to prove the prior inconsistency.  Otherwise, such questions allow the attorney to “smear the witness by insinuation.”  In this case, the Appeals Court concluded the prosecutor’s questions allowed the jury to hear about statements the girlfriend made without having a legal basis upon which to introduce the substance of the statements at trial.  Because the prosecutor was not prepared to call the Maine trooper as a witness, she should not have been permitted to ask the questions.

Nevertheless, the Appeals Court employed the dreaded “harmless error doctrine,” which stands for the proposition that even if the prosecutor made a mistake at the defendant’s trial, the conviction will be affirmed if the Appeals Court concludes the error was harmless.  Here, the Court said it was confident the defendant would have been convicted even if the prosecutor had refrained from her inappropriate cross-examination.  Accordingly, the defendant’s convictions were affirmed.

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