COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss. SUPERIOR COURT CRIMINAL ACTION NOS. 85-5415-18 and HAMPDEN COUNTY 35-542045 SUPERIOR COURT ED COMMONWEALTH SEP 1 1 2001 GEORGE PERROT m- 0! MEMORANDUM OF DECISION AND ORDER ON THE MOTION FOR A NEW TRIAL On January 9, 1992, the defendant, George Perrot was convicted of armed robbery, aggravated rape, burglary and assault in a dwelling, burglary, and indecent assault and battery. The charges stemmed from two housebreaks that, occ?iirred in Spring?eld, Massachusetts, on November 30, 1985. Perrot was ?rst convicted of these offenses on December 14, 1987. Those convictions were reversed by Commonwealth v. Perrot. 407 Mass. 539 (199D).l Following his convictions at a second trial, the defendant, represented by new counsel, not trial counsel, again appealed, raising as the principal issues the denial of his pretrial motion to dismiss the indictments due to prosecutorial misconduct and the exclusion of evidence of alleged misconduct by the police and prosecutor. See Commonwealth v. Perrot. 38 Mass. App. Ct. 4'78, 479 (1995), review denied by Commonwealth v. Perrot, 420 Mass. 1 104 (1995}. The c0nvictions were af?rmed. 1d. at 482. Perrot, represented by yet another attorney, now moves for a new trial. asserting numerous trial errors, including that the prosecutor?s closing argument was improper and The Supreme Judicial Court reversed the defendant?s first convictions because the trial judge admitted a pocketbook into evidence, which the police acquired as a result ofa statement taken from Perrot in violation of the defendant?s right to counsel. Perrot. 407 Mass. at 544-548. prejudicial in several regards. He argues that appellate counsel provided ineffective assistance in failing to argue these trial errors on appeal, and that trial counsel was ineffective in failing to preserve for appeal some or all of these issues. The Court heard oral arguments on June 26. 200] For the reasons discussed below, Perrot?s motion for a new trial is ALLOWED. Background This case arises out of two incidents which occurred on November 30, 1985, one at Cove] Street, the other at Malibu Street, in Springfield. Massachusetts. The Commonwealth sOught to prove that the defendant committed a break-in at ovel Street and shortly thereafter broke into 27 Malibu Street in a similar manner and assaulted and raped an elderly woman who resided there. The victim at 27 Malibu Street. Ms. Prekop. who was 84 years old at the time ofthe second trial, was awakened by her dogs barking. Tr. I at_.129i3 After checking her house and returning to her room, she heard sounds of an intruder breaking glass in her m. at 133~ 134. She then retrieved a stick from her bedroom. went to her kitchen, turned on the light, and discovered a man standing there with his hands covering his face. E. at 135. After she struck 3 The Court issued an Interim Order requiring the Commonwealth to submit a memorandum in opposition to so much of Point of Defendant's Memorandum as raised the issue of ineffective assistance of appellate counsel and requiring both parties to submit memoranda addressing why all other issues had, or had not, been waived by the defendant?s failure to raise them in his direct appeal. After considering these memoranda. the Court issued a further order allowing the parties to present evidence solely with regard to the defendant?s claim that appellate counsel was ineffective in failing to raise on appeal trial errors the defendant argues in his motion for a new trial. At the scheduled evidentiary hearing, bOth parties waived their right to present evidence. 3 Citations herein will be designated as follows: Memorandum in Support ot?Defen-danfs Motion for a New Trial (?MNT'Vpage or exhibit): Trial Transcripts volumet?pege); Transcript ofthe Motion to Dismiss page I: Defendant?s Appellate Brieff?Def. App. the intruder?s head with the stick, he assaulted her, pulled her into her bedroom, and raped her on the bedroom floor. 1g. at 135-138. She later described the man to the police as being of average height and weight, clean shavein, with black wavy hair, and wearing a blue jacket, dark pants, and white sneakers. at 153-156, 172. A week after the incident, she was unable to identify her assailant out of a line-tip of men that included the defendant. E. at 147, 158-161. 'The defendant had facial hair at the time _ofthe lineup, Tr. .11 at 396; Tr. at-540. See also Trial Exhibit .19. By inference and by uncontroverted direct evidence. he had this facial hair on November 30, 1985, as well. Tr. at 540. Ms. PrekOp was unable to identify a picture of the defendant as her assailant at trial and testified that her assailant did not have any beard or mustache. E. at 155. She was also unable to identify the Defendant as her assailant at trial. 1d, at 160. a Ms. Prekop received treatment at the hospital and returned home about three hours later. At that time she found knit gloyes in her bedroom that did not belong to her. Tr. I at M4. when Inf. :e 1 presented with a written statement made by her to the police, referring inter alia to the gloves, Ms. Prekop testified that she did not mention gloves?when she originally gave her statement to .. 1 the police and suggested that the police had altered her statement by adding a reference to the Mud?H? gloves after she signed the statement. Ms. Prelfopalso testified that she found no fresh blood on herself or on the bed after the incident and that nothing took place on the bed. at. at 163-164. .. -- . . She testified that the only blood stain on the sheet was a . .. 14 to 15 year old stain deposited there . hher uncle, who had areSpiratory ailment. m. This stain was still visible on November 30. d. . 1985 deSpite Lieutenant Thomas Kelly (?Kelly?) was called to Ms. PrekOp?s residence on the night of Lu the'incident._ I_c_l. at 18?. Ms. Prekop was taken to the hospital approximately ten minutes after he at 188. Kelly found two gloves in he testi?ed at trial th at .one glove was on the bed and the other was on the ?oor at the foot of the bed, he acknowledged on cross examination that he had previously testi?ed the gloves were ?on the ?oor, near the bed.? 1 ld. at 192; Tr at 448-449. Kelly folded Ms. Prekop?s bedsheet, which appeared to be soiled and to have some ?bers on it. I_d. at 194. He noticed that'at least one of the gloves had a reddish brown stain at the base ofa ?nger. I_d. at 196. These materials were a- . submitted to the FBI laboratories in Washington, DC, where both a blood stain and a single hair sample were extracted from Ms. Prekop?s bedsheet. Tr. [l at 290-292, 352. In addition, blood was extracted from the gloves. E. at 284?285. I . . . . The defendant was arrested on December 7- connection wrtli a purse snatching at a. I a restaurant and subsequent break?in at another residence (the ?McNabb? residence). E. at 389? 390. After questioning the defendant, Kelly obtained a search warrant to search his residence at 37 Malibu Street. 1g. at 405. He brought the knit gloves to the defendant?s residence. at 406. Upon arriving, Kelly spoke with the defendant?s sister, Nancy Westcott (?Westcott?). asking her whether the gloves were hers. I_d. According to Kelly, she responded that she had a pair just like them, but upon searching for them in a closet, found that they were missing. 406?407. Westcott, the defense?s only witness, testified that although she told Kelly that the gloves looked familiar, possibly belonging to the defendant?s girlfriend, she told Kelly that the gloves did not belong to her. Tr. at 546. Sergeant Thomas Kennedy (?Kennedy?), observed two vials of blood being drawn from the defendant?s arm on March 31. I987. 1which were tagged as evidence in the crime prevention bureau._ Tr. II at 235. On April 1, 1987, Kennedy and Assistant District Attorney Francis Bloom (?Bloom?) took the vials to the FBI laboratory in Washington, BC. 1d. Although Kennedy was unable to recall whether he or Bloom signed any documents at the laboratory, he testi?ed that the vialsfremained in his possession until they were received at the laboratory. 1d. at 235?236. The Commonwealth?s blood eXpert, William Eubanks (?Eubanks?), an FBI agent. was able to extract blood samples from the bedsheet and from? the gloves. E. at 290-292, 284-285. Because there was insuf?cient blood to test for blood type on the tested fora genetic markers. at 286-287. He was able to conduct only one such test and determined that the enzyme type on both gloves was PGM E. at 287. The blood stain on the sheet yielded four markers, PGM EAB BA, HP and ofa possible thirteen that he tested for;_ he testified that approx1mately eight percent of the population would have the dombination of those a four markers, based on the product rule. E. at 292?294, 361. While the victim was excluded as the donor, the defendant could not be excluded as the donor of the blood found on the bedsheet and the gloves. E. at 300. Eubanks acknowledgedon cross ekamination that a fresh blood stain the size _of tests for all thirteen genetic markers. m. at 308. Wayne Oakes (?Oakes?), another FBI agent, testified as the Commonwealth?s hair expert. He was able to find only one human hair suitable for comparison with known samples. d. at 352. Oakes compared that hair to the defendant?s known hair sample and found it to be consistent with having come from the defendant, exhibiting ?all the same microsc0pic hair arranged in the same way as the characteristics present in the known hair from [the defendant] Id. at 353. The victim?s hair. on the other hand, was dissimilar. Oakes admitted that hair comparison, unlike fingerprint analysis, does not constitute a basis for positive identification of an individual. at 370-371. During a series of interrogations upon his arrest, the defendant ?rst denied any involvement in the PrekOp break-in, but eventually confessed to breaking into the houses on Cove-l and Malibu streets, while denying that he had sexually assaulted anyone. See generally Egg, 407 Mass. at 541-542. The defendant has consistently denied ?[b]oth the fact, and the validity, of his statements to the police . . . 1g. at 549, and has claimed that any statements made were not voluntary. Motion to Dismiss (- Prior to his second trial, the defendant moved to dismiss the indictments based on a fabricated confession, dated December 16, 1987 (two days after his conviction), which Bloom utilized in the investigation ofa related case case?) an attempt to extract confessions and gather evidence from two individuals whom the police believed were the defendant?s accomplices in that incident. At the hearing on this motion, defendantis counsel, then Attorney Jeny Rjdeout, called as witnesses Jeffrey Adkins ("Adkins") and Robert Timmerman (?Timmerman?), who were the two individuals Bloom confronted with the forged confessions at the Pearl Street police station. Adkins testi?ed that Bloom confronted him with the confession, which Adkins believed to be authentic, and threatened to put him in jail. MTD at 19-20. Bloom also confronted Timmerrnan with the confessioa and threatened him with jail. at 23. When asked how he was brought to the police station, Timmerman testi?ed that ?they-? presumably meaning the police, picked him up at his house and brought him there. E. at 21. They wanted to question Timmerman about the alleged rapes. including the Malibu street break? ins. E. at 22. During the interrogation, Bloom accused Timmerrnan of taking part in bioth the Marchand case and the PrekOp case. l_d. at 25. Neither the prosecutor nor Attorney Rideout deveIOped at the hearing who ?they? were or whether the police were aware of, or involved in, the qiiestioning of Adkins or Timmerman.4 Kelly, at the time a sergeant in the Spring?eld Police Department, testi?ed that he noticed the confession and brought it to the attention of the District Attorney?s of?ce after an assistant district attorney gave him the original copy of the confession for ?ling purposes. 1d. at 33?35. Kelly testi?ed that he contacted Bloom with regard to the confession as follows: A. I called him and told him what I had in my hands. In my hands was that three page confession. And I asked him what he knew about . he remembered making that up and using my name because I was prominently involved in the case. a . Q. So he told you he had in fact wrote the three page report. He?in fact created this three page document? A. Yes. Q. You know who actually typed it? A. No. Q. You don?t know who exactly made up the words on it? A. No. Q. Attorney Bloom told you it was him responsible for the document? A. Yes. Q. It was Attorney Bloom who signed your name to it as a witness? A. No. He didn?t say that. 4 Defense counsel at one point asked Adkins whether Bloom had called him names. to which the Timmerman answered in the af?rmative. Counsel then asked Q. This was by Francis Bloom? A. Yes. Q. Not by one of the policeman? A. No. MTD at 19-20. This testimony did not address whether the police had been involved in other facets ofthe interrogation. as it only answered the precise question of whether Bloom had called him any names. Q. Would you repeat what he told you? A. That he used my name on the document because I was prominently involved in the investigation. k1. at 37. When asked about imparting false information to a suspect, Kelly testi?ed that his undefstanding was that ?subterfuge deception is an accepted practice as long as the use of that false information or phony information does not induce a person to make a false confession. You do not use the promise of a lighter sentence or the fact a person would be allowed to go free if they give a confession." E. at 41. He clari tied this position on cross examination, stating that forgery is not acceptable ifthe signature is actually c0pied, whereas falsely placing someone?s name on the bottom of the paper is an acceptable practice. E. at 43-44. According to Bloom, the police approached him because a blood stain inthe Marchand case had exculpated the d_efendan_t,_ yet the police were confidan that the defendant_._limm8m1an, f. and Adkins were involved in that incident. lg. at 66. The police asked Bloom to go to the police station, as they wanted to approach Timmerman and Adkins and were ?looking for approval as to what type of subterfuge they could use in talking with them.? Q. at 59, Bloom testified that he could not remember where the forged confession was oped and who typed it, but he remembered that ?[u]ltimately before anything was done with it {he} had seen it and approved it.? E. at 49. Bloom ?rst stated that he did not remember whether he or One of the officers had signed the defendant's name to the documents, Q. at 5.0- but then stated that ?1 know it wasn?t me.? id. at 51.5 He testi?ed that it appeared that the defendant's signature 'mnn' err- r- s1 5 When asked who else was involved in the invesrigation ofthe Marchand case besides himself and Sergeant Kelly, Bloom answered ?ChiefStelzer. Captain Arpin. Sergeant Kennedy, Sergeant McFarlin, [and] Detective Spring?eld police department. MD at 55. Sergeant Kennedy and Detective Jarvis testified in the defendant?s case. Detective Jervis recorded the defendant?s confession. See Tr. at 488-489. 8 had been traced, but that he had not done so. I_d. at 56. He ?irther testi?ed that by?the time'he at?. arrived at the police station, the questioning of Adkins and Timmennan ?was pretty much over. . HwH?unu .. - .--.- - .- . .. WV bum . but [he] did talk to them.? id. at 59-60. The remainder of Bloom?s testimony was equivocal as ??nk to whether he showed Adkins and Timmerman the confession and as to what he stated to them. At the hearing on the motion to dismiss, the Commonwealth argued that the defendant could not show prejudice or demonstrate that Bloom ?did anything that had to do with the Prekop case.? I_d. at 71. The defendant argued at the hearing that Bloom?s heavy involvement in the Prekop case prejudiced the defendant and that Kelly?s testimony revealed his notion that I?m?n. -..-- - subterfuge was an acceptable police tactic. m. at 71-72. In his memorandum in support of the rr - . motion to dismiss, however, the defendant focused primarily on Bloom?s conduct and requested that the case be dismissed for prosecutorial misconduct. See bef. App. Br. a't In denying the motion to dismiss. Judge Moriarty found that Bloom?s tactics. although imprOper, did not prejudice the defendant, because the confession ?was not intended to be and never was used against [the defendant] at trial. and it did not succeed in uncovering or inducing any evidence or testimony that could be used against him.? Memorandum and Order [on the defendant?s motion to dismiss for prosecutorial misconduct] (Moriarty, J.) at 4-5. Judge get: Moriarty never expressly found that the police were or were not involved in the forged confession or in the interrogation of Adkins and Timmerman. as to what transpired prior to the interrogations. As to the generation ofthe confession- Judge Only portions of Attorney Rideout's memorandum suppOrting the defendant's motion to dismiss were reproduced in the appellate brief provided to the Court. 9 1, Indeed. those portions ofthe decision dealing with possible police involvement are vague Moriarty found that Bloom ?arranged the production of what purported to be a confession by Perrot. . . . Bloom then signed Perrot?s nameon the bottom of the confession. . . . He then signed his own name and @5334 the name of Sergeant Thomas Kelly ofthe Spring?eld Police Depaitment to be signed as witnesses.? m. at 2, emphasis added. l-lis ?ndings with regard to the interrogations were as follows: ?Bloom then caused Adkins and Timmerman to be picked up (on what pretext is not clear) and taken to the Spring?eld police station where he interviewed them separately. He confronted both of them with the bogus Petrot ?confession? and threatened to prosecute them ifthey did not c00perate with him." M. at 3. Consequently; while the ?ndings discredit Bloom?s testimony that it was not he who ilsigned the defendant?s name to the document, they are vague as to how Bloom "caused" Sergeant Kelly?s name to be af?xed to the document or how Bloom ?caused? AdkinsIand Timmerman to be picked up. Neither defense counsel nor the prosecutoriasked Adkins or Timmerman ifthe n. police had interrogated them prior to Bloom?s arrival. Moreover. the Court received no testimony from any of the of?cers who picked up Adkins or Timmennan, or from of?cers at the police station who were present during the interrogation. Judge Moriarty may have even considered the police to have participated in the interrogations. E. at 4 do not consider them to be acceptable tactics for police of?cers. but much less so for a prosecuting attorney and member ofthe bar?). 5. It was not Bloom's practice to submit evidence such as hair and blood samples to the FBI. - .Agm'J-u MTD at :37. He testi?ed at the motion to dismiss that he was not involved in the collection or retention of physical evidence in the defendant?s case. l_d. at 68. However. at trialin became evident on the record prior to Judge Simon?s ruling on the Commonwealth?s motion limine to 10 exclude evidence of the forgedconfession that Bloom was at least present when evidence was submitted to the PET. Tr. at 235, 238.7 Bloomwas undisputedly present at the defendant?s Isa-v- xi." .. booking, Tr. at 458, and during the interrogation ofthe defendant, even initiating questioning of the defendant. MTD at 31;Tr. at 502. Bloom also participated in preparing the defendant?s search warrant waivers for hair and blood samples. Tr. at 504. 1b.. The trial judge (Simons, I.) allowed the Commonwealth?s motion in limine to exclude ?ftiie proposed testimony ofa prospective defense witness Francis Bloom, or any other evidence relating to an alleged ?false confession? ofthe defendant, George Perrot . . . WT, Exhibit 1. Judge Simons ruled that the evidence would have Opened up collateral matters outweighing any probative value. See Tr. ll at 38?. On appeal, the defendant highlightedBloom?s involvement in the case and argued that the judge?s ruling deprived him ofthe opportunity {0 establish his defense. See Def. App. Br. at 23. I The Defendant?s Second Appeal After the defendant?s convictions were overturned in Commonwealth v. Perrot. 407 Mass. 539 (1990), the defendant was again convicted of armed robbery, aggravated rape, burglary and assault in a dwelling, burglary, and indecent assault and battery. He appealed these convictions arguing that the trial court erred in denying his motion to dismiss for prosecutorial misconduct, (2) the trial court imprOperly excluded all references to the forged confession, (3) the trial court should have granted his motion for a required ?nding of not guilty, I 7 Although Of?cer Thomas Kennedy testified that Bloom had only accompanied him to the FBI laboratory, Tr. II at 235, the FBI agent who examined the blood samples testified that his report indicated that "the blood samples were personally delivered by Mr. Francis Bloom . . . Q. at 308. ll (4) the trial court erred in admitting evidence of the product rule, (5) trial counsel provided ineffective assistance in introducing a statement which contained references to the defendant?s other crimes, and (6) the jury was not drawn according to statutory procedure. See generally Def. The Appeals Court affirmed the convictions, addressing the defendant?s ?rst two claims and ?nding that the others were ?without merit and warrant[ed] no discussion.? See Commonwealth v. Petrot, 38 Mass. App. Ct. 478. 482 (1995). The defendant now moves for a new trial arguing, that appellate counsel provided ineffective assistance in failing to argue on appeal various error at trial, as well as that trial counsel was ineffective in failing to preserve those issues for appeal. Discussion 1. Waiver and Ineffective Assistance oprDellateCOLinsel The defendant designates several trial errors in this case that were either not preserved for appeal or that were waived by not being asserted on appeal, or that were decided adversely to the defendant by the Appeals C0urt in Commonwealth v. Parrot. 38 Mass. App. Ct. 478 (1995). He also asserts ineffective assistance oftrial counsel. arguing that since both his trial and appellate counsel were appointed by the Committee for Public Counsel Services he has not waived a claim ofineffective assistance oftrial counsel for failing to assert such a claim on his direct appeal. -In commonwealth v. Egardo. 426 Mass. 48. 49?50 (1997). the Supreme Judicial Court that a claim of ineffective assistance oftrial counsel was not waited on appeal where both trial and appellate counsel were ?employed? by CPCS. In so doing, the Court likened CPCS attorneys to associates in a private firm. where an attorney would hesitate to challenge a fellow l: colleague?s competence. 1d. In his affidavit, the defendant states that both trial counsel and appellate counsel were ?employed? by CPCS: The record demonstrates to the contrary. The trial judge introduced defense counsel as ?Aitomey John Ferrara . . . with the offices of Daisey Ferrara here in Spring?eld,? Tr. I at 23, 70, and the docket sheets suggest that Attorney Ferrara was appointed by the court, not employed by Accordingly, the defendant has not supported his claim that trial counsel was employed by CPCS. Evenifthe defendant?s trial counSel was ?appointed? by CPCS, as argued in the defendant's brief, the'defendant?s scenario was dissimilar to that contemplated by the Court in that is, where two attorneys are working as associates for the CPCS offices. Were the case otherwise, indigent defendants would rarely be subjected it) waiver principles for ineffective assistance claims in their appeal, so long as bar advocates are appointed for them by CPCS. Those issues not raised on appeal are thus waived, including ineffective assistance of trial counsel? Since all ofthe issues raised in the defendant?s motion for a new trial, except his claim of ineffective assistance of appellate counsel, were raised and resolved on appeal or could have been raised on direct appeal, they were either resolved or waived. The defendant?s claim that appellate counsel provided ineffective assistance obviously could not have included in his direct 3 See Docket entry for September 18, 1991, allowing Attorney Rideout?s motion to disappear and appointing Attorney errara (?Court Appt?s Atty. J. errara?). 9 As will be discussed infra, a claim ofineffective assistance oftrial counsel, even if not waived, adds nothing to the Defendant?s motion; because, when the basis for such claim of ineffective assistance is errors waived or unpreserved by trial counsel, as in this case, a showing ofa substantial risk of miscarriage ofjustice is required for such a claim ofineffective assistance of counsel to succeed. appeal and hasnot been waived. See, Commonwealth v. Corrn'ier, 41 Mass. App.?Ct. 76, 77 1996) [finding ineffective assistance of appellate counsel for failing-to argue insufficiency of evidence on appeal). Furthermore, none of the errors discussed herein were properly preserved at trial for appeal, other than the ineffective assistance of counsel claims. During the prosecutor?s closing, defense counsel objected only three times. The first two objections went unaddressed by the trial judge for reasons unknown on this record. ilh?ithout a ruling on those objections. appellate ?counsel was confronted with issues that had not been preserved. Cf. Amorv v. Commonwealth, 321 Mass. 240, 251 (194?) (refusing to address the merits of an objection where the parties failed to obtain a ruling by the judge); Mass. R. Civ. P. 46. Reporter?s Notes-19??) (?Without a speci?c objection and a ruling on it. the appellate court under Rule 46 ?will generally'not review the question . . . Upon trial counsel's third objection, which followed the prosecutor?s suggestion that the agents would be risking their careers and reputations to conSpire to create evidence, discussed gm, the trial judge told defense counsel to ?hold it." Although defendant now claims that ?hnr?n- was deprived of an opportunity to raise specific objections after the closing, the record before the . .4 Court fails to support that claim. The record does revealythat ti'ial counsel made no speci?c objection or request for curative instructions, and that he did not renew any ofhis objecnons.? after the closing or before thejury was charged. See. Commonwealth v. Marquetty. 416 Mass. 445. 450 (1993) (?Defense counsel did not object Specifically to anything in the closing nor did he make a request for a curative instruction"). Since trial counsel did not renew his objections or request relief. he did not preserve the issues for appeal. See Contrnonweaith v. 14 Richardson, 38 Mass. App. Ct. 384, 392 (1995) (?nding that an objection did not preserve the issue where the trial judge suggested that defense counsel wait until the jury charge was complete), reversed on other grounds by Commonwealth v. Richardson, 423 Mass. 180 (1996). The defendant argues that appellate counsel was nonetheless ineffective in failing to argue that these errors created a substantial risk of a miscarriage of justice or to argue that trial counsel was ineffective in failing to preserve the issues for appeal. When dealing with waived errors, however. the standard for review is essentially the same for ineffective assistance claims as it is for a subSIantial risk ofa miscarriage ofj ustice. See Commonwealth v. Shollev. 432 Mass. 721, 732 n. 13 (2000); Commonwealth v. Curtis, 417 Mass. 619, 624?625 n_4 (1994). ?Thus, ifthere is no risk ofa substantial risk ofa miscarriage ofjusticeftihe defendant cannot claim ineffective assistance ofcounsel.? ommonwealth.v. Fbster, 48.Mas?. App. Ct. 67], 677 (2000). Ifthe unpreserred errors created a substantial risk of miscarriage ofjustice. a new trial would be required in any event. If they did not, then trial counsel?s and appellate counsel?s alleged ineffectiveness adds nothing. The Court, therefore. will review all the defendant?s claims of error to determine whether errors were in fact made, and if so. whether such errors alone, or together, created a substantial risk of a miscarriage of justice. 11. Claims of Error A. Prosecuror's References in Closing Argument to the Absence of Evidence which Prosecutor had successfullx' excluded bv Motion In Limine - K. it IS . - . improper tor a prosecutor to call attention to an absence of ev1dence when the absence is a result ofthe prosecutor?s objection to the introduction of that?evidence.? Commonwealth Mosbx'. ll Mass. App. Ct. l. 9I1980L Theretbre. ?a par-Is success ir. excluding evidence from the consideration of the jury does not later give that party license to invite inferences (whether true or . . - false) regarding the excluded evidence.? Id. In each of the cases the defendant cites in support of his claim that the Prosecutor committed this error, the prosecution either referred to excluded evidence or requested the jury to reach a conclusion that was directly rebuttable by excluded evidence. For example, in M_osby, the prosecutor asked the jury to infer that a defendant was silent in the face of an accusation after having successfully excluded testimony regarding his response to accusations. 1g. at 8-9. See also Commonwealth v. Hm, 373 Mass. 569, 575 (1977) (?nding grounds for reversal in the prosecutor?s referral to the death of an alleged perpetrator after the trial judge excluded a death certi?cate); Commonwealth v. Haraldstad. 16 Mass. App. Ct. 565. 568 (l 983) (?nding it improper fora prosecutor to refer to an exPert's opinion as to the absence of Sperm in a rape victini, having successfully excluded clarifying testimony in that regard). These cases are distinguishable from Perrot?s case. In this case. the Commonwealth moved in limine to exclude any reference to the forged confession. Judge Simons adoPted Judge Moriarty?s ?ndings, set out in relevant part above. See. Tr. II at 386. In doing so. he excluded ?the pmposed testimony of a prospective defense witness in. . . . . Erancis Bloom,_or any other-evidence relating to art-alleged ?ffalse confession?iof defendant. George Pierrot . MNT. Exhibit 1. closing, the prosecutor then suggested to the jurors how unlikely it 1would be that the police could create or modify the defendant?s confession: would it be for the police to makeup [sic] a statement and have him sign it?? and asserting that the evidence suggested that they did not ?add to it to make it better.? TI. IV at 624-625. The prosecutor then told the jurors that the defendant wanted them to believe in a world where FBI agents risk their ?reputations and careers to create evidence" and one where 16 "'17er E. ?Torn Kelly and Mr. is get together to create evidence to pin on this poorman. It?s' the kind Aw-n- of world where for him to be innocent there has to be such a conspiracy you can?t believe. . . That?s preposterous. Its [sic] preposterous.? at 626-627.10 The defendant contends-that these statements, in addition to imprOperly vouchingforr government witnesses (discussed were prosecutorial error given the prosecutor?s successful exclusion of any reference to the false confession. The Commonwealth argues that these statements were fair inferences from the evidence, contending that both the motionjudge and trial judge found that the police were never involved in forging the confession or creating evidence. _f 1 .r Although Judge Moriarty?s decision fonnd that Bloom was responsible for the . i . confessron 3 creation, the memorandum lacks an express finding that the police were not p. involved, or did not participate in, the forgery of the confession or subsequent interrogations based on it. Nor were such findings necessary to decide a motion to dismiss for prosecutorial misconduct. The issue before Judge Moriarty was whether Bloom?s and the policeis conduct was so egregious, though nonprejudicial. that the defendant?s indictments should have been dismissed. See, Commonwealth v. Lewin. 405 Mass. 566, 536-587 (1989). ..I "ninth-R: . ,l Judge Simons adepted Judge Moriarty?s ?ndings and excluded any reference to the confession at trial, finding that on the day he was arrested, the defendant voluntarin made the confessions, that the false confession was generated after the defendant?s ?rst conviction and .r gm" '0 Defense counsel objected to this argument, Specifically, a?er the prosecutor suggested that the agents would be risking their careers and reputations to engage in such conduct- to which the Court responded "[h]old it,? Tr. 1V at 627, presumably meaning that defense counsel was to wait until after closing to raise this issue. Defense counsel did not raise the matter after the prosecutor?s summation. l7 related to another rape at a different address, and that it would have Opened up collateral matters outweighing any probative value. See Tr. II at 386-387. Judge Simons likewise did not determine, nor was he required to determine, whether the police were involved in the defendant?s forged confession; he merely found that such evidence was more prejudicial than probative, a determination largely within his discretion. ?Ef?f? I The insurmountable obstacle the defendant faces in arguing that the prosecutor?s statements referred to evidence excluded by the prosecution, however, is the Appeals Court holding that the excluded evidence ?did not have even tangential relevance to the evidence on which the Commonwealth was to rely: it suggested no shortcoming in the police investigation of the defendant's case.? P_er;_r_gt, 33 Mass. App. Ct. at 482. Although Judge Simons made no express ?nding that the excluded evidence was irrelevanL- seeliTr. II zit-387 (?[Evidence of the false confession] will open up collateral matters that far outweigh any probative may be in this case"). emphasis added. this Court is nonetheless bonnd by the Appeals Court?s ruling that the excluded evidence was irrelevant. int The defendant argued on appeal that allowance of the motion in limine was error because .3 the defensehad intended to use such evidence tp corroborate the defendant-is position that although he remembered confessing to the McNabb break?in, he never remembered confessing to ?the Covel Street and Malibu drive break-ins._ Def. App. Br. at 21. Moreover. the appellate brief emphasized the fact that the defendant had been subjected to an intenseinterrogation and evidence at trial indicated untoward behavior by the police. including a Statement by the vicrim_ that a reference to the knit gloves had been added to her statement. E. at 21-22, Bloom?s heavy involvement in the defendant's case was also highlighted. including the fact that Bloom was 18 present at the defendant?s interrogation, prepared the defendant?s waiver to consent to the taking of hair and blood samples. and participated in the delivery of evidence to the FBI laboratory. at 22-23. The relevance of the evidence relating to the forged confession was thus squarely before the Appeals Court when it ruled that the motion in limine was properly allowed because the evidence was irrelevant to the defendant?s case. (I To the extent the defendant argues that there was relevant evidence tending to prove that the police do fabricate evidence which \vas excluded on the Commonwealth?s motion- and that the prosecutor therefore improperly argued that the police would not create evidence in a criminal case. the Appeals Court?s decision forecloses that argument by holding that the forged confession "did not have even tangential relevance to the evidence on which the Commonwealth was to rely; it suggested no shortcoming in the police investigation of the defendant's case. r. lie-rm, 38 Mass. App. Ct. at 482. The Appeals Court ruling establishes that there was no evidence that had any tendency to undermine what the prosecutor was arguing. See, eg- Commonwealth v. DeCoste. 51 Mass. App. Ct. 691, 696 (2001) (?nding no error in prOSecutor's emphasizing rape victim?s lack of motive to fabricate a story despite evidence that the victim himself had been accused of rape, which was excluded by the prosecutor, as the victim?s rape charge did not provide him with a plausible motive to lie). Recognizing this problem- the defendant asserted at oral argument that the prosecutor rendered the evidence relevant when he stated that the police ?don?t do that,? which the . defendant claims suggested to the juryr that false confessions are never created by these police g? officers in a criminal case. Tr. IV at 625. According to the defendant- by arguing these "facts," an" which were not in evidence- the prosecutor opened the door to the previously excluded evidence 1-..- 19 and appellate counsel failedto make this point to the Appeals Court, The defendant, hen-ever, h?p seriously mischaracterizes the prosecutor?s argument by taking it completely out of content. What the prosecutor said was that, ifyou are a police of?cer coercing a confession from a defendant, ?you can bet you are going to have the facts of the crime right inthe confession. But they don?t do that.? E. Read in context. it is perfectly clear that the prosecutor was not referring to facts outside the evidence or to police conduct generaliy, but rather to the fact that the defendant?s written confession it?e_lfdemonstrated that the police did not fabricate it or obtain it by coercion in this instance. This was pmper argument. The 0mm0nwealth therefore correctly argues that the factual premise upon which the defendant relies, that the prosecution successfully excluded relevant evidence that the poiice participated or acquiesced in the fabrication ofa confession, nias removed fr?orn this Court's consideration by the Appeals Court?s decision that the excluded evidence ?did not have even tangential relevance to the evidence on which the Commonwealth was to rely; it suggesred no shortcoming in the police investigation ofthe defendant?s case.? P_er_r_o_t_, 38 Mass. App. Ct. at 482. B. Prosecutor?s Comments During Closing Argument Regarding the Presumpticn of ?x '1 a -- Innocence It is axiomatic that ?the presumption ofinnocence continues throughout the case ?u?a Commonwealth v. Kane- 19 Mass. App. Ct. 129. 139 1984). A prosecutor therefore may not suggeSL that the defendant has some burden to prove his innocence. See Commonwealt Pagano, 47 Mass. App. Ct. 55, 62 {1999} (?nding that a prosecutor's statement that?the ":loak comes off." referring to the presumption of innocence. implied that the defendant had same 30 burden to prove his innocence). Prosecutors do not violate this admonition if they state that . :4 suf?cient evidence has been introduced to convince the jury that the presumption is gone. See . . fan Commonwealth v. Degro, 432 Mass. 319. 328 (2000) presumption ofinnocence only -- - lasts imtil evidence is presented to you, the jury, that a person is guilty ofa crime. And, in this case, ladies and gentlemen, the Commonwealth has presented evidence that this man is guilty of ?rst-degree murder?); Commonwealth v. Sheline. 39] Mass. 279. 293?294 n.4 (1984) presumption-ofinnocence . . . creates for every [d]efendant a cloak, a covering. a protection . . . unless and until evidence is presented . . . which would convince [thejury] beyond a reasonable doubt that the presumption . . . is nonexistent?). "te- ?x a At the very outset ofhis closing. the prosecutor stated that the defendant ?stoodbbefore; you at the beginning of this trial presumed innocent and no evidence had been introduced. He is not innocent anymorethe very end of his argument he again stated that ?[the defendant] was presumed innocent. He is not any longer.? Tr. IV at 629. Defense counsel did not object to these statements. Giving the prosecutor the bene?t ofthe doubt. he may have intended to structure his -. . a. - 1 argument to acknowledge the presumption of innocence at the outset of his argument as well as - q. his burden of proof, then to state that he had met his burden= showing why, and then to close uith a statement that the presumption was gone because he had met his burden of proof. He did not. however, state it this way. either at the beginning or at the end of his closing. he omitted 5? any language advising the jurors that the defendant has the bene?t of the presumption of innocence throughout the case and that it may only be overcome by proof beyond a reasonable doubt ofhis guilt. As a result, the prosecutor misstated the signi?cance of the presumption of innocence with the result that thejury'was potentially misled into believing that the presumption disappeared once the presentation of evidence began. Such a misstatement necessarily implicates the biirden of proof- potentially lessening that burden. It also has the potential to mislead the jury into believing that the defendant may be obliged to come forward with evidence, since the presumption coupled with the burden on the Commonwealth relieves the defendant of any obligation to prove or diSprove anything. This right is a fundamental constitutional right? basic to a fairtrial. See Commonwealth v. Thomas. 401 Mass. 109, 113 (1937). The error was compounded by additional improper argument by the prosecutor and by the judge?s instructions.? See Thomas, 40] Mass. at I 13 (in considering the-effect ofan error in closing argument. the Court looks to the entire argument and the judge?s cufative or general instructions). l-lere. no curative instructions were given. (None were sought.) The trialjudge had a ?duty.? however. to correct arguments impinging on constitutionally protected rights. See Commonwealth v. Awad, 47 Mass. App. Ct. 139. 142 n.1 (1999). ?The better practice is for the judge to intervene on his own motion." quoting Commonwealth v. Hawlev. 380 Mass. 70, With regard to the presumption of innocence and the Commonwealth?s burden of proof, the trial judge instructed: ?This is a criminal case and in the beginning of this trial the defendant has the bene?t ofthe presumption of innocence. The law says that a person is presumed to be innocent until he has been proven guilty beyond a reasonable doubt. And that means that no inference unfavorable to the defendant may be drawn from the fact that he's been indicted. . . . A defendant may be found guilty only on the basis of evidence produced here in court during the trial and no other basis. So an indictment is not any evidence whatsoever ofthis guilt. A defendant in a criminal case is not required to produce any evidence ofhis innocence. The prosecution bears the burden of proving beyond a reasonable doubt every essential element ofthe crimes charged against the defendant. . . . That burden never shifts. It stays with the Commonwealth throughout the entire trial." Tr. IV a: 635-638. or; '85 (1930). if Instead, the judge?s general instruction, although accurately stating the burden of proof. misstated the effect of the presumption of innocence very much as the prosecutor had, by sugg?sting that the defendant has the bene?t of the presumption of innocence only at the beginning of trial and that the presumption meant that no adverse inference could be drawn from the fact that the defendant had been indicted or arrested, with no indication that the presumption lasted throughout the case unless and until the Commonwealth has proven the defendant guilty beyond a reasonable doubt. These instructions compounded the misleading and confusing effect On the jury of the prosecutor?s statement that the defendant was no longer presumed innocent. The judge. furthermore, never told the ury that the lawyers? statements regarding the law were to be disregarded to the extent they differed from the Judge?s instructions. In. Additional remarks during the prosecutor?s closing compounded the error further by repeatedly and more subtly misstating the Commonwealth?s burden of proof. The prosecutor stated-that to believe in a "world . . . where [the defendant] is innocent,? thejurors would have to believe in a world where law enforcement of?cials ?risk their reputations and careers to create evidence to reach conclusions not supported.?? Tr._ IV at 626. Trial counsel objected to this statement, but the trial judge directed him to ?[h]old it? until the prosecutor?s summation. The prosecutor then continued to expound on the kind of ?world? the jurors would have to "believe in? for the defendant to be innocent: ?It?s a kind of world where Torn Kelly and Mr. Jarvis get together to create evidence to pin on this poor man. It?s the kind of world where for him to be innocent there has to be such a conSpiracy you can?t believe. They may have to take the blood and shake it on the? let*s get a little on the gloves. Pull out one of George?s hair [sic]. Though. it"s in the heat ofa rape. And the FBI finds that single hair. That's preposterous. [sic] Ix.) b) preposterous. . . The world of George Perrot?s innocence requires somebody elSe to be doing these things.? Tr. IV at 627. .3 eh. . The prosecutor once more emphasized this point, stating that ?[t]he world ofGeorge - Perrot?s innocence requires somebody else to be doing these things.? Tr. IV at 628. In addition to piling on to other errors discussed in fra, these statements suggested that to acquit the defendant, the jurors had to believe that the police and agents had lied and created evidence. - - This is a mischaracterization ofthe Commonwealth's burden of proof.'2 See United States y. . Reed= 724 F.2d 677: 68] (Sth Cir. 198?! [finding it improper for a prosecutor to argue that in order to believe the defendant. they had to believe that the government witnesses had lied); United States v. Richter, 826 F.2d 206. 309 (2nd Cir. 1987) (finding error in prosecutor?s statement that the detendant wanted the jurors to believe that agents were lying). Such I . . 4. statements are misleading. because the prosecutor suggests that to acquit the defendant.juror_s must believe that government witnesses committed perjury, when in fact the jury could acquit because they had a reasonable doubt as to the veracity ofthe government witnesses or because for some reason unrelated to the ofthese witnesses. they were not satis?ed that the Commonwealth had proved its case beyond a reasonable doubt. See Thomas, 401 Mass. at 1 12- 1 l7 (?nding improper burden shining where the prosecutor stated that thejury should acquit the defendant ?ifyou ?nd that he is truly innocent" or to suggest that the jury needed to disbelieye the Commonwealth's witnesses ?in order to find the defendant not guilty." but no subs-tantiai risk .1- 4/3" . '3 The defendant addressed these portions of the closing for other reasons, and not explicitly at least, for the impact aney could haye on the presumption of innocence. -However. the point is discussed in at least one cf the cases cited by the defendant under the rubric ofyouching [United States v. Richter. 836 Fi? 306 Cir. 1987)] and is. in any event. Open for the Court's consideration because the Court mum consider the entire argument to determine the ham potentially caused by the prosecutar's explicit misstatement ofthe presumption ofinnc-ccnce- I. -. 34 of a miscarriage of justice in light of the entire argument and the judge?s detailed instruction); Bag, 724 F.2d at 681; United States v. Vargas, 583 F.2d 380, 386-3 87 (7th Cir. HTS) (a prosecutor?s equating of an acquittal with a ?nding that government agents were lying excludes the p?issibility that the jury may ?return a-verdict of not guilty because the evidence might not be suf?cient to convict the defendant beyond a reasonable doubt?). . .1 xi" The prOSecutor's statements, individually and collectively. particularly when combined with the prosecutor?s direct mischaracterizations ofthe presumption of innocence, improperly suggested to the jurors that the defendant could not be acquitted unless they were persuaded that m. the police and agents were lying and that someone else Committed these crimes. The jurors did not have to be so persuaded in order to acquit Perrot. In a case such as this, ajury could have found that the Commonwealth failed to meet its burden of probf for any of a? number of reasons. -The victim all but testified__t_ha_t__th_e defendant was not her attacker. The defendant contested both the fact and the voluntariness of his confession, and there was evidence to support such a challenge. Finally. there were substantial issues as to how the gloves got into the bedroom and onto the bed, and whether the defendant?s blood could have gotten onto the bed and, if so, how (the attack was on the floor). The prosecutor?s repetitive and pervasive misstatements of the law - .. were potentially exacerbated, instead of corrected, by the judge?s instructions regarding the presumption of innocence. Moreover, the same statements impermissiny vouched for the credibility of the Commonwealth?s witnesses. m. C. Vouching for Government Witnesses A prosecutor should avoid statements suggesting that to believe the defendant?s version . . a: of events, jurors must find that government agents are lying or otherwise "explicitly or implicitly 25 vouch to the jury that he or she knows that the witnesses?s testimony is true.?_ Commonwealth v. m, 406 Mass. 257. 265 (1989)., See?Commonwealth v. Grif?th, 45 Mass. App. Ct. 784, 788 (1998) (?nding improper vouching for the credibility of witnesses where prosecutor stated that ti) believe the defendant?s story, they would have to believe that the police were lying and y0u don?t buy into the story. call him [apparently referring to one of the police of?cers] a liar, but I am suggesting to you by no means are these men lying to yon. By no means are these men not telling the truth. They have nothing to gain"); v. Williams, 674 A.2d 1372, 1375- 1376 (Conn. App. 1996) (?nding improper vouching where the prosecutor improperly suggested that ?nding for the defendant?s version ofthe facts was tantamount to ?nding that police of?cers who had identified him had committed perjury in a narcotics prosecution). it" . Of course, a prosecutor IS entitled to make a tatr reply i0 a defense counsel's statements attacking the credibility of police officers. See Commonwealth v. Smith. 404 Mass. 1. 7 (1989). '3 Moreover. at least one case in Massachusetts has indicated substantial tolerance of arguments suggesting to the jury that to believe the defendant, they would have to believe that of?cers are lying. See Commonwealth v. Brown, 34 Mass. App. Ct. 222. 227 (1993). In Brown; the prosecutor stated during his closing: ?In order for you ladies and gentlemen of the jury, to accept the testimony. I submit to you? the argument put by the three counsel? I submit to you that you must disbelieye the police: I submit to you what they?re saying is that the police are lying.? Although ?nding this was "inelegant argument." the Court did not ?nd that the statements '3 In Smith. the prosecute-r- in rebutting defense counsel?s closing remark that an of?cer?s testimony was "absurd." proper}; responded that the counsel for the defendant ?was trying to give the inference that [the of?cer] . . . perjured himself." Smith- 404 Mass. at 7. 26 ?crossed permissible limits or were particularly significant.? 191.? In doing so, the Court noted that among the three defendants? closings, one attorney suggested that a police of?cer?s testimony was ?implausibly pat.? 1d. at 227. {ifs-H." Here, the prosecutor not only suggested that the defendant wanted the jurors to believe that the police and agents were lying, but told the jurors that to believe in a ?world . . . where [the defendant] is innocent.? they would have to believe in a World where law enforcement officials ?risk their reputations and careers to create evidence.? fr; . - The Commonwealth claims that this argument was merely responswe to the defendant 3 own ?combative? closing, citing no portions ofthe closing to support this argument. The . - defendant?s closing did suggest untoward behavior in that the agents had not signed their reports, were biased, and were collaborating in subjective scientific arialyses. Tr. IV at 603-604. In addition, counsel suggested that Agent Oakes? testimony was somewhat contrived in that he did not have his notes and was merely testifying to characteristics he could recite in any case. Tr. IV at 605-607. As to the police, defense counsel argued inconsiSIencies in their testimony and suggested that the defendant had not voluntarily confessed to the Prekop break-in, and argued that to the extent the defendant confessed, it was limited to the break-in at the McNabb residence . I I i on December 7, 1985, and the purse snatching. Tr. IV at 589?590. Moreover. the defendant produced evidence at trial suggesting that the defendant had been beaten by the police. Tr. at 541. He also pointed to inconsistencies in the of?cers? testimony as to whether the defendant's sister actually stated that she owned the gloves found at the crime scene, and argued that the '4 Brown did not address what effect. ifany. such a Statement could have on the government?s burden of proving guilt beyond a reasonable doubt. 37 more likely scenario was the one testified to by the defendant?s sister, that she told Of?cer mgr- Kelly only that they looked familiar. E. at 594. Finally, defense counsel hinted at suspect behavior in the police?s handling ofthe evidence, Tr. at 592, even suggesting that the police may have lied about the gloves to explain how the defendant?s blood had gotten on the bed and may have added a reference to the gloves in the victim?s statement after she had signed it (though the added reference was simply an unfortunate fact elicited by the Commonwealth during its own case). Tr. I at 144, Tr. at 612. If - - The detendant never suggested. however. that the police had planted evidence or put the defendant?s blood on the gloves. Though the prosecutor was warranted in responding to the defendant?s insinuations of iniprOper police conduct to some extent, his argument that the . . 't . . . defense was suggesting that the officers were engaged in a con3piracy, and thereby risking their careers, went beyond his right to respond and vouched for their credibility. The prosecutor's statements, in addition to other statements made the prosecutor in closing, also referred to evidence outside ofthe record.? As to these issues and those that follow. thejudge generally instructed the jury that they were to accept closing arguments in stride, speci?cally instructing that (1) closing statements were not evidence. (2) the jury alone was to make determinations of fact, and (3) the jury?s memory ofthe testimony controlled if counsel gave an impression to the contrary. Speci?cally, the trial judge generally instructed as follows: ?If in the course ofclosing arguments and closing arguments are helpful and legitimate, but in the course ofclosing arguments counsel gave you an impression how you must ?nd facts or call to your attention a matter of evidence you don?t remember collectively then you?re free to ignore it because it's your memory of what the testimony was that controls. It is for you alone to make these decisions without pressure or interference from anyone. Tr. l?v? at 634. And later. I should tell you What is evidence and what is equally important what is not evidence. Opening statements of counsel. closing arguments ofcounsel. [are] helpful and legitimate. but they're not evidence." E. at 640-641. 28 D. -Reference to Evidence Not in the Record prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence.? Commonwealth v. Kelly, 417 Mass. 266, 270 (1994:). In in a case where defense counsel attacked the credibility of government witnesses, the Court found error in the prosecutor?s statement that the defense had suggested a ?conspiracy? whereby the of?cers ?put their pensions . . I on the line to get these two guys. . . . [The officer] hashed up a conspiracy, put his pension on the line to get these two guys.? E. at 269?270. 24? a. In suggesting that the agents did not create evidence against the defendant, the prosecutor stated for the defendant to be innocent, the jurors would have to believe they would ?risk their reputations and careers to create evidence to reach conclusions not supported?. In addition to misstating the Commonwealth?s burden and vouchingFfor government witnesses- this statement invited an inference wholly unsupported by the record, because there was no evidence that the agents? careers would have been at risk had they created evidence or given false or incorrect testimony at trial. See Mass. at 270. See also United States v. Bovd. 54 I7.3d 868, 87] (DC. Cir. 1995) (?nding a prosecutor?s statements were clearly improper where he suggested in closing that of?cers would not lie on the stand and thereby jeopardize their careers and risk criminal prosecution); United States v. Martinez, 981 F.2d 867, 871 (6th Cir. 1992) (?nding ?prosecutorial impr0priety? in argument that police witness, if lying. would risk 18?year career, without evidence suggesting as much). a i; 1 In addition, the prosecutor suggested that Of?cer Jarvis, in interrogating Suspects. ?has a different approach, an approach designed to have somebody open up, to be honest with'him.? Tr. 621 ?622. Although Jarvis testified that he took a laid back approach with the defendant, see Tr. ill at 437. the prosecutor?s comments exceeded fair inferences from the evidence and suggested that Iiarvis had a unique ability to obtain the truth from the defendant, where no such evidence was introduced. _Such a suggestion, furthermore, subtly vouched for arvis?s credibility, since it implied that Jarvis, by using this approach, in fact extracted the truth from the defendant. - Moreover. the prosecutor imprOperly indicated that he had personal knowledge independent of-the record and vouched for the officers? credibility by describing the fact that the of?cers were on call 24 hours a day and had had probably about the same amount of sleep as the defendant- and were doing theirjobs both then [at the time ofthe investigation] and in testifying at trial. Tr. IV at 621. There was no such evidence. and the stiggestion that?the officers are doing theirjobs by testifying improperly implies that they are, therefore. testifying truthfully. - In addition to impmperly arguing inferences from evidence outside ofthe record, these statements reinforced the prosecutor?s misstatements regarding the presumption of innocence by suggesting that to acquit Perrot, the jury had to believe that these government witnesses were lying and willing to lose theirjobs.I6 The prosecutor?s excesses did not end here. however, as he '6 The defendant also argues that the prosecutor impmperly suggested personal knowledge outside of the record when he characterized the Spring?eld police of?cers as ?professional men-" Tr. at 622. and the defendant as ?a young man with nothing better to do than drink and use some drugs, [who] beg[an] committing these crimes . . . 1d. at 627. See also i_d. at 628 (?The simple truth is this is the man who jusr isn't somebody you or I wouldn't recognize drinking, using the drugs, going into homes to do these acts . . . The defendant takes these statements out ofcontext. The defendant admitted to drinking and doing drugs. and evidence demonstrated as much at trial; he also admitted to the break-in at the McNab?b residence. The prosecution accordingly wasjustified in relying on these facts to shots-z not only a pattern by the defendant. but a motive for engaging in the charged conduct. although the characterization ofthe defendant as someone with nothing better to do than engage criminal 30 WW also referred to excluded evidence of the defendant?s involvement in other crimes, despite having objected to defense counsel?s improper reference to excluded evidence during the-defendant?s closing. - i E. Reference to Excluded Evidence The Commonwealth is entitled to make a retaliatory reply to comments by the defense in closing. See Commonwealth v. LeFave, 407 Mass. 927. 939 (1990). The reply is limited, however. to correcting an erroneous impression created by opposing counsel. See Commonwealth v. Kozec. 399 Mass. 514. 519 n.9 (1987) (?The Commonwealth?s right to ??ght fire with fire? is aimed at answering "prejudicial irrelevancy argued by opposing counsel,? . . . it is limited to ?correct[ing] the erroneous impression for which the defendant himselfwas responsiblelicense to indulge in impropervarguinent?) (citations and quotations omitted); Burke, 373 Mass. at 575 (?No attorney shall refer in closing argument to evidence which had been excluded- nor may he or she invite an inference from the exercise ofa party?s right to have evidence excluded"). .- wg ?Qi i- nst-?- . . . . . 3-5 Any ev1dence regarding the defendant 5 Involvement in pnor sexual assaults and house breaks was eXcluded. Tr. IV at 596. In closing, defense counsel suggested that at the time they obtained the defendant?s waiver for blood and hair samples, the police did not have sufficient information to obtain a warrant to do 50. 1g. The prosecutor objected and thejudge _sdstained the .. . . objection. I_c_l. The prosecutor requested to be heard. after which the judge admonished defense in; counsel to go no further into that area. given the exclusion of such evidence. E. at 597. Then, activity dangerously approaches the boundaries, as the defendant?s character was not an issue and the defendant did not testify. during his closing the prosecutor told the jurors: ?Now what?s Torn Kelly?s role in the case? I want to suggest one thing to you right now, Tom Kelly. and this concerns what they knew or didn?t know. On December 7, he is woken up and he comes down. You don?t know what Torn Kelly knew or didn?t know about George Perrot. It was never asked, ?What information did you have at that point that made you think George Perrot was involved.?? Tr. IV at 620. Having successfully objected to defense counsel?s argument that the police did not have suf?cient information to obtain a warrant. the prosecutor?was not then at liberty improperly to suggest to the jury that they had not heard facts concerning the defendant?s involvement in these 55.. crimes, which Kelly may have known when he came to the police station. When defense counsel inappropriately referred to whether the police could have obtained a?warrant, the prosecutor?s objection was sustained by trial judge, thereby impressing on thejury that the argument they had . . . . just heard from defense counsel was inappropriate. See Commonwealth v. Earltop. 372 Mass. 199, 207 (1977) (Hennessey, C.J.. concurring) (?The defendant's cause with ajury is,.to say the least, probably not assisted when the judge ?nds it necessary within the hearing ofthe jury to V.- label a defense argument as impermissible"). It was imprOper for the prosecutor to then take independent action and to do precisely what he had objected successfully to defense counsel?s doing. Furthermore, when defense counsel objected to these questions by the prosecutor, the judge did not address the objection. Instead. the prosecutor remarked that the jurors should not i? .. Speculate as to what Kelly knew or did not know and moved on with his argument. Tr. IV: at: 620. Given these facts. it cannot be said that ?conflicting statements of Opposing counsel; . . t. probably served only to neutralize each other." Commonwealth v. Daigle. 379 Mass. 541. 549 {1980). It was improper for the prosecutor to make this argument after having voiced the same "om-I obj ection moments before, during the defendant?s closing, an objection that was sustained by the 3.- axis F. Enlistment ofthe Jurors on the Side ofthe Government .r The defendant also argues that the prosecutor expressed his personal op_ini_or_i__of the uh;yl" defendant?s guilt and attempted to make himself into a thirteenth juror by telling thejury that they should ?render the truth so that we may confront [the defendant] with what he could not confront himself with, that he is guilty ofthese crimes.? Tr. IV at 630. The prosecutor?s use of the word ?we? placed him and the jury on the same footing and constituted appeal that enlist[ed] thejurors on the side of the government.? M, 47 Mass. App. Ct. at 146. While this isolated statement alone would not warrant a new trial. it represented yet?another excessin the. I prosecutor?s cumulativer prejudicial closing.? 4-. '7 In addition to the claims discussed above, the defendant argues that appellate counsel was also ineffective in failing to raise the following issues, or in failing to claim that trial counsel had been ineffective in failing to raise them. Since the court concludes that the issues are without merit, there is no error. See, Breese v. Commonwealth, 41 5 Mass. 249, 252 (1993) (?lfthe defendant received effective assistance of counsel at trial, there can be no argument that either ?rst or.second appellate counsel was ineffective for failing to argue that trial counsel was ine ctive?). i ?Evidence that may indicate that one other than the defendant committed the crimes charged is exculpatory within the meaning of Brady v. Maryland, 373 us. 83' (1963). Th? defendant points to a reference in testimony to a palm print or ?ngerprints in a repOrt by? Of?cer Cheetham ofthe Springfield police that-stated that the police were unable to match the print with anyone and blood testing conducted in a related matter; the defendant argues thai "the Commonwealth failed to disclose exculpatory evidence and that it was ineffective assistance for trial and appellate counsel to raise these issues. The trial testimony did not reveal that evidence regarding the palm print was exculpatory, nor has the defendant offered evidence on this motion to suggest as much. In fact, the only evidence regarding the palm print (Kelly?s testimony) suggested that the print was unusable for purposes ofidentifying any individual. With reSpect to the blood test results that exculpated the defendant in the Marchand case, mentioned at the hearing on the motion to dismiss for prosecutorial misconduct, the defendant was noti?ed ofthe blood testing as early as the time ofthe motion to dismiss. Other than D.) "at? new" Substantial Risk of a Miscarriage of Justice ,Where as here, a defendant moving for a new trial has received appellate review, the presumption weighs in favor of finality ofthe verdict. and a new trial ?should not be granted except for substantial reasons.? Commonwealth v. Amirault, 424 Mass. 618, 637 (1997), quoting Commonwealth v. Tucceri, 412 Mass. 401, 406 (1992). The defendant is required to present all claims of error at the earliest possible time, and failure to do so ordinarily precludes relief. Amirault 424 at 639. ?Absent extraordinary circumstances where there has been conjecture, the defendant provides nothing to support his claim that earlier receipt ofthe results would have made a difference in this case. The defendant also argues that trial counsel was ineffective in not calling a hair expert for the defense. Rather than call a defense expert. defense counsel chose to cross-examine the witness both by questioning the absence of specificity in the witness?s testimony as to how the One hair in evidence matched the known samples and by._pointing to disagreement in the scienti?c community regarding hair comparison. Tr. II at 356?382. There is no evidence before the Court to establish that use ofa hair eXpert would have accomplished anything for the defendant that was not accomplished on cross examination. The defendant challenges thejudgeis instructions on general and speci?c intent, to which trial counsel did not object. Commonwealth v. Gunter, 427 Mass. 259, 269 (1998). In this case, general intent to commit rape, aggravated rape and indecent assault and battery charged was not a disputed issue at trial. Even ifthe insuuctions were erroneous, there was no harm to the defendant and certainly no risk of a misoarriage of ustice, since identity, not intent, was the issue. Finally, the defendant seeks to reargue that the allowance of the motion in limine to exclude evidence ofthe forged confession denied him the constitutional right to present a defense. In his appeal, the defendant argued that "the result ofthe trial court's allowance of the motion in limine was to unfairly limit the Defendants opportunity to develop favorable evidence.? Def. App. Br. at 19-25. Since the Appeals? Court ruled that such evidence was irrelevant, there was no constitutional right to present it. See, Capps v. Collins, 900 F-2d 58. 60-61 (5th Cir. 1990). citing Delaware v. Van Arsdall, 4?:3 US. 673 [1986). Moreover, in his appeal, the defendant cited cases the defendant?s right ?to establish even a tenuous defense if his right to have his day,r in court is to be guaranteed.? Def. App. Br. at 20. citing Commonwealth v. Noble. 24 Mass. App. Ct. 421 {1987) and Commonwealth v. Hood. 389 Mass. 581 (1983). That the defendant now brushes off this argument and presents a more elaborate constitutional argument with federal precedent does not warrant the conclusion that the issue was not raised before and rejected by the Appeals Court. 34 War ineffective assistance of counsel or where allowing the conviction to stand ?will result in manifest injustice,m any issue that could have been raised earlier, and was not, is considered waived, and ?may not be raised for the first time on collateral review.? quoting Commonwealth v. Watson, 409 Mass. 1 10, 1 14 (199i). ?The power to give reliefwhen a waived issnes ?raised for the ?rst time by [post-conviction] motion for a new trial, should be exercised only in these extraordinary cases where, upon s?ober reflection, it appears that a miscarriage oi?justice might otherwise result.~ Commonwealth v. Curtis, 417 Mass. 619, 626, 632 8 31 (1994), quoting Commonwealth v. Harrington, 379 Mass. 446, 449, 399 475 (1980)." Commonwealth v. LeFave, 430 Mass. 169, 173 (1999): An error creates a substantial risk ofa miscarriage ofjustice unless the Court is persuaded . . . . - .. . . 't i that It did not "materially the gurlty verdict. Commonwealth v.?Freeman, 332 Mass. 556, 563-564 (1967). The "traditional treatment ofthe substantial risk issue calls for us to decide if we have a serious doubt whether the result of the trial might have been different had the error not been made.? Commonwealth v. Lel?"ave, supra at 174. in determining whether an error materially in?uenced the verdict, the Court considers ?the strength of the Commonwealth?s the nature of the error, whether the error is ?suf?ciently signi?cant in the context of the trial to make plausible an inference that the [jury?s] result might have been otherwise but for the error, . . and whether it can be inferred ?from the record that counsel's failure to object was not simply a reasonable tactical decision.'" Commonwealth v. Alphas. 430 Mass. 8, 13 (1999) (footnote and citation omitted), quoting Commonwealth v. Miranda- 22 Mass. App. Ct. 10: 21 (1986). See Commonwealth v. Azar, 50 Mass. App. Ct. 767, 771 (2001). Although the Commonwealth?s case was strong. based on evidence ot?a confession U1 circums?tantially identifying the defendant as the victim?s attacker, corroborated by blood and hair samples consistent with the defendant?s samples and by the presence of gloves consistent with those owned by the defendant?s girlfriend or his sister, the case was certainly not overwhelming or irr'e?Jtable. The victim?s exculpatory testimony weighed heavily in the defendant?s favor. The victim testified that her assailant was clean shaven, while unrefuted evidence at trial indicated that. the defendant had a mustache and beard at the time of the assault. She could not identify the defendant at a line?up. When showna photograph ofthe defendant at trial, she could not say that he was her assailant since the man in the photograph had a beard and mustache while her assailant was clean shaven, and she would not identify the defendant in person as her assailant at trialThere were srgnittcant ISSUES regarding the glove allegedly found on?the bed and the blood from the bed which the prosecution claimed was the defendants blood. This glove had a blood stain on it, from which only a single genetic marker could be determined. Apart from this I glove, there was no explanation for how defendant's blood purportedly got on the bed. The assault occurred on the bedroom floor. There is no evidence the attacker ever touched the bed. .. - "we No blood was found on the stick Prekop used to strike her attacker. (The stick was found on the bed.) The inference, therefore, is that the blood on the bed'came from the glove. Yet Prekop denied seeing any gloves in the bedroom before she returned from the hospital. She denied lb! referring to any such gloves in her uritten statement and suggested that any reference to them in hm.? her statement must have been added by the police. While Kelly testified that Defendant?s sister said that the gloves were similar to ones she owned which she could not locate, Defendant's sister denied ever saying that. Kelly's testimony at trial that he found one glove on the bed and 36 "when" positively identi?ed from the supposedly fresh stain on the bed, tested by the lf?l,?raises a one on the floor differed from earlier testimony in which he said both gloves were on thefloor. "Furthermore, there was admittedly a blood stain on the sheet from PrekOp?s uncle (allegedly too old to test positive for genetic markers). That only four of thirteen genetic markers could be question of how fresh it really was and whether the ?fresh? stain was actually the old stain. I, There were also substantial issues regarding whether the Defendant actually gave a written confession to the break?in (he never confessed to any assault on PrekOp), and, if so, whether it was voluntary. There was evidence that the Defendant had ingested drugs and alcohol shortly before his arrest, Tr. 111 at 509; that he was either not permitted to sleep or unable to sleep during the many, many hours ofquestioning, Tr. at 436, 501, 507?509, 512, and that 1nterrogated intermittently during a penod of at least 12 hours as early as 3:05 am. His sister, furthermore, testi?ed that she saw bruises on his face and chest at the police station. As to the nature ofthe errors, the prosecutor?s arguments were not simply isolated incidents of hyperbole in an otherwise acceptable closing, but were persistent, repetitive, and pervasive departures from acceptable argument. See Grif?th, 45 Mass. App. Ct. at 738 (?excess - in the-instant case was a repetitive characteristic of the closing argument?). The prosecutor?s remarks regarding the presumption of innocence and vouching for government witnesses were not collateral issues, but went to the heart of the defense, since the defendant did not testify and instead attacked the strength of the Commonwealth?s evidence. which came primarily from police officers and FBI agents. His defense. therefore, depended largely upon attacking the credibility ofthose of?cers and agents and holding the Commonwealth to its high burden of proof. The Prosecutor?s repeated mischaracterizations ofthe presumption ofinnocence and distortions of the burden of proof impacted a most fundamental right of the defendant to be presumed innocent, a cornerstone ofour criminal law system and justice. Cf. Commonwealth v. IsaBriola. 430 Mass. 569. 570-571 n.3 @000) (stating that errors in a reasonable doubt instruction which allow ajury to convict the defendant on a burden ofprbofless than beyond a reasonable doubt necessarily require a new trial regardless of whether review is direct or collateral); Commonwealth v. Gaeliardi, 413 Mass. 562, 568 waiver, constitutionally deficientinstructions on reasonable doubt that permit ajuiy to convict a defendant on proof less than proof beyond a reasonable doubt create a substantial risk ofa miscarriage ofjustice). ?Trial counsel?s failure to object to most of the prosecutor?s improper remarks cannot fairly be characterized as a reasonable tactical decision in the cit?cutnstanbes ofthis case. While it is possible that counsel deliberately chose to refrain from oliijecting during?the prosecutor?s closing because the court had not responded at all to twoFobjections counsel made during the closing and had toid counsel to ?hold it" in response to a third objection, it is pure speculation on this record to conclude that such was or was not the case. What is perfectly clear is that having objected three times and been told to ?hold it" the last time, counsel never sought to renew his objections or to make additional objections after the closing was completed and never objected to thejudge?s misleading instruction on the presumption ofinnocence or failure ?sua Sponte? to provide any curative instructions. Even ifthis was a deliberate, tactical. decision by counsel. the record suggests no reasonable basis for such a decision and any such decision was not reasonable. If, on the other hand, counsel failed to perceive the errors in the prosecutor: . - - argument and the judge's instructions. his failure to appreciate their significance at that time Ila. demonstrates ineffectiveness of counsel rather than immaterialin ofthe errors. . The Court is mindful of the fact ?that the prosecutor has a duty ?to argue the public?s-case aggressively and resourcefully.m Commonwealth v. Shellev. 374 Mass. 466, 472 (1978). The prosecuting attorney, however, ?is the representative not of an ordinary party to a controversy, but sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.? Id. quoting Berger v. United States. 295 vs. 73, 88 (1935). The C0urt is unpersuaded that the prosecutor?s pervasive and persistent improper comments in closing did not materially in?uence the guilty verdict in this case. The cumulative effect ofthe errors in the prosecutor?s closing, coupled with an absence of any curative instruction, and, indeed. magnified by thejudge?s misleading instruction on the presumption innocence leaves the court With a serious doubt that the Defendants guilt was fairly adjudicated. ORDER For the foregoing reasons. it is hereby ORDERED that the defendant?s motion for a new Lawrence B. Wernick Justice of the Superior Court trial be ALLOWED. DATE: September .0 . 2001