Criminal – Murder – Assault And Battery By Means Of Dangerous Weapon

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Where a defendant appeals his convictions for second-degree murder and assault and battery by means of a dangerous weapon (a bat), we conclude that the appeal must fail because (1) sufficient evidence was introduced against the defendant to support both convictions, (2) the prosecutor’s closing argument was not so egregious as to amount to reversible error and (3) the judge framed adequate jury instructions on manslaughter and joint venture.

Affirmed.

Concurring Opinion

Brown, J. “The prosecutor’s careless overreaching in final argument came dangerously close to constituting reversible error. ‘We remind [trial] counsel that we shall not tolerate misconduct by lawyers during the persuasion phase of a criminal trial.’ … Once again it is patently clear that some prosecutors are completely ignorant of our appellate courts admonitions concerning closing arguments. … They are either unable or unwilling to steer their closing arguments within permissible bounds. …

“Nearly twenty-five years ago Justice Braucher in Commonwealth v. Redmond, 370 Mass. 591, 597 (1976), chastised the trial prosecutor for ‘repeatedly and deliberately sail[ing] unnecessarily close to the wind,’ and reversed the defendant’s conviction. Without rehearsing the painfully long list of flagrant violations of that wise admonition, I repeat my message to the Commonwealth attorneys in Commonwealth v. Kozec, 21 Mass. App. Ct. 355, 367 & n.2 (1985) (Brown, J., concurring), S.C., 399 Mass. 514 (1987), and in numerous other cases before and after if the assistant district attorneys cannot get it right, get new assistants.”

Commonwealth v. Springer (Lawyers Weekly No. 11-128-00) (25 pages) (Smith, J.) (Brown, J., concurring) (Appeals Court) Cases tried before Quinlan, J., in the Superior Court. Ruth Greenberg for the defendant; Anne S. Manzello for the commonwealth (Docket No. 97-P-1795).