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Commonwealth v. Lodge

Appeals Court of Massachusetts, Suffolk

May 20, 2016

Commonwealth
v.
Kendall T. Lodge

         Argued February 1, 2016.

          Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on July 29, 2011.

         The case was tried before Robert J. McKenna, Jr., J.

          N. John Magrisso for the defendant.

          Kathryn E. Leary, Assistant District Attorney, for the Commonwealth.

         Present: Trainor, Meade, & Sullivan, JJ.

          OPINION

          Meade, J.

          [50 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.

          Background.

          On 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

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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.

         At the 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.

         The 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.

         At the 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."

          [50 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 ...


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