February 1, 2016.
Complaint received and sworn to in the Dorchester Division of
the Boston Municipal Court Department on July 29, 2011.
case was tried before Robert J. McKenna, Jr., J.
John Magrisso for the defendant.
Kathryn E. Leary, Assistant District Attorney, for the
Trainor, Meade, & Sullivan, JJ.
N.E.3d 841] After a jury trial, the defendant was convicted
of possession of a firearm without a license. On appeal, he
claims that the prosecutor's opening statement improperly
appealed to emotion without a factual basis, that the
prosecutor's closing argument improperly commented on the
defendant's post-Miranda silence, and that he received
ineffective assistance of counsel. We affirm.
July 28, 2011, at approximately 11:45 p.m., Boston police
officers responded to a disturbance on Hansborough Street in
the Dorchester section of Boston. Upon arriving at
Hansborough Street, Officer Robert Robichaud observed a large
crowd of approximately forty people standing in the middle of
the street yelling at one another. Upon seeing the marked
police cruiser, the crowd began to disperse.
same time, Officer Keith Monahan responded to the same
disturbance in an unmarked police cruiser. As he parked and
exited his cruiser, Monahan's attention was immediately
drawn to a blue Toyota Corolla automobile moving towards him
because the middle passenger in the back seat, later
identified as the defendant, was sitting " almost up
against the ceiling." Monahan made eye contact with the
defendant, who looked " very surprised, [and]
wide-eyed." The defendant " immediately turned
away, looked down towards his middle leg area and lunged
forward very quickly." After making these observations,
Monahan told the driver of the Corolla to stop. The driver
began to stop; however, once Monahan was within a few feet of
the car, the driver accelerated. The driver only stopped when
another police cruiser blocked the Corolla's path.
police ordered the occupants out of the car and to keep their
hands up; the defendant remained inside the car and kept his
hands out of Monahan's sight. Monahan removed the
defendant (an adult), who had been sitting on a child booster
seat. Upon his removal, the defendant became agitated and
confrontational. After the car had been cleared of occupants,
Monahan returned to look in the area where he saw the
defendant lunging. There he saw a purse on the floor of the
right side of the back seat, with the handle of a firearm
protruding from it. The purse contained the license of the
front seat passenger. The defendant was arrested and brought
to the police station.
police station, the defendant was read the Miranda rights,
and he signed a form waiving those rights. Detectives Robert
Zingg and Patrick Foley then questioned the defendant. The
defendant denied that he knew the names of the three other
people in the car, and denied knowing where in the car the
firearm was located. He went on to state, " [The] only
thing I heard about was a firearm and I don't know what
it looked like, what type of firearm, I don't know who
put it there, I don't know anything about it," and
" I have nothing to do with it, I don't even know
how it got there."
N.E.3d 842] After maintaining a lack of knowledge of the
firearm or its location in the car, the defendant offered
various scenarios as to how the firearm could have been
placed where it was found. Each ...