Commonwealth v. Cuffee

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SJC-13333

COMMONWEALTH vs. KIESON CUFFEE.

Hampden. January 6, 2023. – May 15, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.

Practice, Criminal, Discovery, Argument by prosecutor. Police,
Records. Evidence, Police report, Relevancy and
materiality. Constitutional Law, Equal protection of laws.

Indictment found and returned in the Superior Court
Department on January 17, 2019.

A pretrial motion for discovery was heard by Jane E.
Mulqueen, J., and the case was tried before Francis E. Flannery,
J.

The Supreme Judicial Court granted an application for
direct appellate review.

Molly Ryan Strehorn for the defendant.
John A. Wendel, Assistant District Attorney, for the
Commonwealth.
Chauncey B. Wood, Kevin S. Prussia, Timothy A. Cook, Asma
S. Jaber, & Douglas J. Plume, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
Radha Natarajan, Katharine Naples-Mitchell, Audrey Murillo,
Matthew R. Segal, Jessie J. Rossman, & Alexandra Arnold, for
American Civil Liberties Union of Massachusetts, Inc., & others,
amici curiae, submitted a brief.
 2

GAZIANO, J. A Superior Court jury convicted the defendant

of unlawful possession of a firearm, in violation of G. L.

c. 269, § 10 (a). The charge arose from an investigation by two

Springfield police detectives into a report of a shooting in a

crowded residential area, and the subsequent discovery of a

firearm that allegedly had been discarded by the defendant as he

fled from the officers. The primary issue in this appeal is

whether the defendant established that discovery of police

records would be relevant and material, see Mass. R. Crim. P. 14

(a) (2), as appearing in 442 Mass. 1518 (2004), to a claim of

selective enforcement.

Before trial, the defendant filed a motion for discovery of

police reports and field interrogation and observation reports

where the two detectives who participated in his arrest were

either the reporting officer or the assisting officer, for a

period of two years, beginning one year prior to his arrest

through one year after his arrest. The defendant maintained

that the discovery was relevant and material to the question

whether the police investigation was motivated improperly by

race, in violation of his constitutional right to equal

protection of the laws. Finding that Commonwealth v. Long, 485

Mass. 711 (2020), was not applicable to pedestrian stops and

that, even if it were, the defendant's motion for discovery did
 3

not meet the standard for relevance under Mass. R. Crim. P. 14,

a Superior Court judge denied the motion. A single justice of

this court subsequently denied the defendant's petition for

extraordinary relief pursuant to G. L. c. 211, § 3. Following

the jury's guilty verdict, the defendant filed an appeal. We

then allowed his petition for direct appellate review.

We conclude that there was no abuse of discretion in the

motion judge's decision to deny the motion for discovery. To be

entitled to such discovery, a defendant must establish "a

threshold showing that the material he [or she] seeks is

relevant to a claim of selective enforcement." Commonwealth v.

Bernardo B., 453 Mass. 158, 169 (2009). See Long, 485 Mass.

at 724-725; Commonwealth v. Betances, 451 Mass. 457, 462 n.6

(2008). The defendant's motion did not meet even this minimal

standard. See Long, supra at 720-721, 725-726.

In addition, the defendant contends that a new trial is

required because the prosecutor's improper closing argument

created a substantial risk of a miscarriage of justice.

Although some of the prosecutor's remarks were improper, the

remarks did not give rise to a substantial risk of a miscarriage

of justice, and do not warrant a new trial.1

1 We acknowledge the amicus briefs of the Massachusetts
Association of Criminal Defense Lawyers, and the American Civil
Liberties Union of Massachusetts, Inc., Criminal Justice
 4

1. Background. a. Day of shooting. On November 8, 2018,

at about 1:34 P.M., Springfield police homicide Detectives

Matthew Longo and Eric Podgurski responded to a ShotSpotter2

activation report of multiple gun shots having been fired in the

vicinity of an address on Grand Street. As they were heading to

that location in their unmarked cruiser, the detectives, who

were wearing plain clothes, turned onto White Street. One block

from the reported location of the shots having been fired, the

officers saw a man, later identified as the defendant, running

in a direction away from the scene (and therefore toward the

detectives). The man was Black, wore his hair in dreadlocks,

and had on a black sweatshirt and dark pants.

As he ran, the defendant was exhibiting an unnatural gait.

He kept his right hand pinned to the right side of his body,

while his left arm swung freely. He also appeared to have a

heavy object tucked in his waistband. Based on their training

and the defendant's proximity to a shooting, the detectives

believed that the defendant was carrying a handgun without a

holster; also based on their training and experience, they

believed that someone carrying an unholstered gun was more

Institute at Harvard Law School, and New England Innocence
Project.

2 A "ShotSpotter" system "identifies firearm discharges by
sound and directs officers to the general location of the
shots." Commonwealth v. Evelyn, 485 Mass. 691, 694 (2020).
 5

likely not to have a firearms license. The defendant apparently

noticed the police officers and their vehicle, which looked like

a marked cruiser without the usual police markings or a light

bar. He slowed to a walk, pulled up his hood, and stepped into

a corner convenience store.

The detectives viewed the defendant's behavior as

suspicious. They turned their cruiser around, parked in front

of the convenience store, and followed the defendant inside.

Once inside, they separated so that they could locate and

converge on the defendant from different sides. Within seconds

after entering the store, Longo saw the defendant at the rear of

the premises. At that point, the defendant was wearing a white

shirt. Longo approached, identified himself, and ordered the

defendant to "[s]how [his] hands."

The defendant turned his body away from Longo, in a manner

that shielded his right side from the officer. When Longo

attempted to grab the defendant's right arm, a brief and violent

struggle ensued. Longo saw the defendant holding a gun near his

right hip, and forcefully shoved the defendant face-first into a

metal rack while yelling, "[H]e's got a gun . . . he's got a

gun," and unholstering his service weapon. Podgurski, who was

approaching from a different angle, saw the firearm in the

defendant's right hand. Podgurski sought cover, placed his hand
 6

on his weapon, and called for backup. The defendant, bloody

from being shoved into the rack, ran out of the store.

Podgurski and Longo chased after him. They were able to

capture and arrest him at gunpoint a short distance from the

store. The defendant did not have a weapon on his person, and

the officers suspected that he had left the gun in the store,

because they had not seen a gun in his hand while he was running

out the door. Longo returned to the store to search for the

weapon, along with other officers who had arrived to assist.

One of those officers, whom Longo directed to the area of the

struggle, found a .380 caliber Sig Sauer pistol on a shelf

behind some cans that had been knocked over. In addition to a

live round in its chamber, the gun was loaded with a magazine

containing three live rounds of ammunition stamped "[380] Auto

Blazer." At the scene of the shooting on Grand Street,

investigators recovered three spent cartridge casings stamped

"380 Auto Blazer" and one projectile. Officers also found a

black hooded sweatshirt in the doorway of the convenience store,

as well as the defendant's cell phone.

b. Trial. The defendant was tried before a Superior Court

jury on charges of unlawful possession of a firearm, assault by

means of a dangerous weapon (two counts), assault and battery,

and resisting arrest.
 7

The defendant pursued a Bowden defense; he argued that

deficiencies in the police investigation created reasonable

doubt. See Commonwealth v. Avila, 454 Mass. 744, 745 n.1

(2009), citing Commonwealth v. Bowden, 379 Mass. 472, 485-486

(1980). In particular, the defendant maintained that the police

conducted a slipshod investigation because they (1) failed to

use available ballistics testing to determine whether the .380

caliber Sig Sauer pistol allegedly possessed by the defendant

had fired the shell casings or the projectile recovered at the

scene; (2) did not test for the presence of gunshot residue on

the defendant or his clothing to determine whether he recently

had fired a gun; and (3) chose not to apply for a warrant to

search the defendant's cell phone for incriminating information

connecting him to the shooting or to the firearm. The defendant

also pointed out that his sweatshirt and cell phone were

destroyed before trial, by a Springfield police officer assigned

to the property and evidence room, who mistakenly believed that

the case had been dismissed.

After a six-day trial, the jury found the defendant guilty

of unlawful possession of a firearm, and not guilty of the other

four counts before them.3 At a bifurcated proceeding, the

defendant pleaded guilty to being an armed career criminal and

3 The Commonwealth entered nolle prosequi on three counts.
 8

was sentenced to from eight to ten years in State prison. The

defendant filed a timely appeal, and we allowed his petition for

direct appellate review.

2. Discussion. a. Motion for discovery. Approximately

two years after being indicted, and while his motion to suppress

was pending, the defendant filed a motion for discretionary

discovery, pursuant to Mass. R. Crim. P. 14 (a) (2), seeking

police reports and field interrogation and observation reports

(FIOs), for a two-year period, in which Longo or Podgurski was

the arresting or assisting officer. The discovery was relevant,

he argued, to a determination whether the detectives had been

engaged in discriminatory law enforcement tactics in violation

of the Fourteenth Amendment to the United States Constitution

and arts. 1 and 10 of the Massachusetts Declaration of Rights.

A judge, who was not the trial judge, denied the motion. We

review a decision on a discovery motion for abuse of discretion.

See Commonwealth v. Lowery, 487 Mass. 851, 869-870 (2021).

In an affidavit attached to his motion, defense counsel

averred that the defendant, a Black man, was stopped by two

Caucasian police detectives responding to a report of shots

fired in the area. The justification for the stop, counsel

asserted, was "an alleged observation" by Longo and Podgurski

that the defendant "was running east on the sidewalk," had an

"unnatural gait," and "appeared to be supporting a weighted
 9

object on his right side with his right hand." In addition to

stating that Long is inapplicable to pedestrian stops, the judge

determined that, even if it were applicable, "the defendant has

not met the relevance standard under Mass. R. Crim. P. 14 for

the requested documents on this set of facts."4

"A defendant has a right to reasonable discovery of

evidence concerning the totality of circumstances" of alleged

discriminatory law enforcement. Long, 485 Mass. at 725.

Discovery "may include the particular officer's recent traffic

stops and . . . field interrogations and observations." Id.

"[A] defendant may seek such discovery by means of a motion

filed pursuant to Mass. R. Crim. P. 14 (a) (2)." Id. In such a

motion, a defendant may request material and relevant evidence

that is not required under the mandatory discovery provisions.

See Mass. R. Crim. P. 14 (a) (2). The motion "must be

accompanied by 'an affidavit detailing all facts relied upon in

support of the motion and signed by a person with personal

knowledge of the factual basis of the motion.'" Betances, 451

Mass. at 462 n.6, quoting Mass. R. Crim. P. 13 (a) (2). The

affidavit may contain statistical data, factual allegations

4 The judge was without the benefit of our decision in
Commonwealth v. Van Rader, 492 Mass. 1 (2023), and therefore
concluded that the selective enforcement protections set forth
in Long, 485 Mass. at 724-726, and its concomitant discovery
obligations, were inapplicable to pedestrian stops and were
limited to traffic stops.
 10

concerning the stop, or other relevant information. Betances,

supra. In deciding whether to allow the motion, a reviewing

judge must determine "whether the defendant has made a

'threshold showing of relevance.'" Bernardo B., 453 Mass. at

169.5

It is important to bear in mind that, at the discovery

stage, a defendant is not required to establish a prima facie

case of discrimination. See Bernardo B., 453 Mass. at 169. "To

adopt the higher burden . . . would place criminal defendants in

the untenable position of having to produce evidence of

selective enforcement in order to obtain evidence of selective

enforcement." Id.

For example, in Bernardo B., 453 Mass. at 165, a juvenile

moved for discovery of any written policy that had been

promulgated by the office of the district attorney to assist in

deciding whether to prosecute cases involving sexual activity

among children. The juvenile asserted that this information was

relevant to his claim of selective prosecution on the basis of

In other jurisdictions, a defendant's discovery burden in
5

a selective enforcement action has been described variously as
requiring "'some evidence' of discriminat[ion]," United States
v. Washington, 869 F.3d 193, 220-221 (3d Cir. 2017), cert.
denied, 138 S. Ct. 713 (2018); "a colorable basis" for a belief
that discriminatory law enforcement occurred, State v. Halsey,
340 N.J. Super. 492, 501 (App. Div. 2001), quoting State v.
Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991); or "something
more than mere speculation," United States v. Sellers, 906 F.3d
848, 855 (9th Cir. 2018).
 11

gender. Id. at 169-170. The motion judge found that the

juvenile's request was supported by evidence that "both the boy

and the three complaining witnesses appeared to have engaged in

'mutually consensual acts of oral sex,' . . . all four children

were under the age of consent, and the district attorney refused

the request of the boy's counsel that the girls be charged with

statutory rape of the boy." Id. at 170. We affirmed the

judge's finding that the requested discovery was relevant and

material to a claim of gender-based selective prosecution. Id.

at 174-175. The request was "properly supported" and not unduly

burdensome to the Commonwealth. Id. at 174.

Here, however, we discern no abuse of discretion in the

judge's decision to deny the defendant's motion for discovery to

support a claim of selective prosecution on the basis of race.

The sum total of the defendant's motion was a statement that

Caucasian police officers stopped a Black man to investigate a

recent shooting. The judge was within her discretion to deny

the motion seeking discovery based only on the defendant's

membership in a protected class. To make a threshold showing of

relevance, more is required.

The Van Rader case, by contrast, provides an illustration

of an initial showing of selective enforcement sufficient to

order discretionary discovery. See Commonwealth v. Van Rader,

492 Mass. 1 (2023). A judge had allowed the defendant's motion
 12

for all arrest reports and FIOs submitted by the arresting

officers for a two-year period preceding the incident. Id.

at n.3. The motion was supported by defense counsel's

affidavit averring that a Boston police department study had

found that "Black men in the city of Boston were more likely to

be targeted for police-civilian encounters such as stops,

frisks, searches, observations and interrogations." Id. See

Commonwealth v. Warren, 475 Mass. 530, 539 (2016). In addition,

counsel cited an Associated Press report that "at least 71% of

all street level civilian-police encounters involved minorities

while minorities make up about 25% of the Boston population."

Van Rader, supra. Counsel also averred that, in his experience,

officers assigned to the youth violence strike force

"consistently stop, search and arrest Black and Brown people at

higher rates" than the department-wide statistics. Id. See

Commonwealth v. Dilworth, 485 Mass. 1001, 1001, 1002-1003 (2020)

(single justice properly denied Commonwealth's petition pursuant

to G. L. c. 211, § 3, for relief from discovery order seeking

police department records concerning social media surveillance

where, "[b]ased on preliminary information gathered by the

defense, the targets of this type of investigation are almost

exclusively people of color, and within this are also

disproportionately Black").
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b. Prosecutor's closing argument. The defendant also

argues that certain of the prosecutor's remarks were improper,

ad hominem attacks on trial counsel, including counsel's

competence and credibility. The defendant argues that, because

of the extensive number of negative statements about defense

counsel's statements, repeated emphasis of counsel's name, and

disparaging of counsel's purported statements, a new trial is

required. Where, as here, there was no objection to the

challenged statements at trial, we review to determine whether

there was error and, if so, whether it created a substantial

risk of a miscarriage of justice. Commonwealth v. Miranda, 458

Mass. 100, 114 (2010), cert. denied, 565 U.S. 1013 (2011).

A prosecutor is entitled to marshal the facts in evidence,

and any fair inferences drawn from those facts, and to argue

"forcefully for the defendant's conviction" (citation omitted).

Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). Although

a prosecutor may respond fairly to points made during a

defendant's closing argument and may criticize defense tactics,

personal attacks on defense counsel's character and

qualifications, and disparaging personal remarks about counsel,

are not permitted. See Commonwealth v. Teixeira, 486 Mass. 617,

630 (2021); Commonwealth v. Lewis, 465 Mass. 119, 130 (2013).

Here, among other things, the defendant contends that the

"prosecutor interjected his opinion that opposing counsel was
 14

not only wrong in her interpretation of the law in this case,

but that he was 'very excited' to take advantage of her

perceived incompetence in future adversarial contests." The

defendant maintains that the prosecutor's "improper argument

misstated the defense attorney's theory of the case by

personally attacking . . . defense counsel's legal acumen."

The challenged statements arose in the context of the

defendant's pursuit of a Bowden defense, which was based, in

part, on the investigating officers' failure to seek a search

warrant for the defendant's cell phone and to test his

sweatshirt for gunshot residue. See Bowden, 379 Mass. at 485-

486. Defense counsel pursued this theme through cross-

examination and, in particular, during an intensive cross-

examination of Longo. Counsel also argued in closing that the

police conducted a "shoddy" investigation, because they did not

examine evidence that might have linked the defendant to the

scene of the shooting or to having fired a gun at that time.

Counsel focused repeatedly on the fact that police had not

sought a warrant to search the defendant's cell phone,

notwithstanding that, as counsel pointed out, such a device "can

pretty much tell you where you are any minute of any day."6

On cross-examination, Longo explained why he had not
6

sought a warrant to search the defendant's cell phone, "I don't
believe in this case we had probable cause to get into [the
 15

Counsel stated that her cell phone sends her messages indicating

that her "parked car location has been updated." Counsel urged

the jury to disregard Longo's explanation that he had not

applied for a search warrant due to a lack of probable cause to

search the device. Instead, she argued that the detective could

and should have sought a search warrant regardless of his view

of the likelihood that the application would be allowed and the

warrant would issue. Counsel argued, "[I]t's not really . . .

Longo's decision whether or not he has probable cause. He may

feel that he doesn't but he still has every right to request a

search warrant. And then a clerk-magistrate makes the decision

whether or not he has probable cause to go into that cell phone

and take a look."

With respect to the defendant's assertions about the

failure to obtain a warrant, the prosecutor remarked in his

closing:

"[Defense counsel] also said the cell phone could have been
done for what's called CSLI [cell site location
information] or cell tower location. Now, . . . Longo
testified that sometimes you don't necessarily get that if
the phone's not being used. And in a back-and-forth
between . . . Longo and [defense counsel], they discussed
what kind of probable cause you need to get it. A
conversation that frankly made me very excited for the next
time I have a motion about cell phone search warrants with
[defense counsel], because she's trying to tell you that
you can just get one for no reason."

defendant's cell] phone, so we never attempted to do that search
warrant. I believe it would have been denied."
 16

The prosecutor concluded his argument by telling the jury that

reasonable doubt "doesn't mean completely farfetched, tinfoil-

hat-wearing doubt."

The prosecutor was entitled, based on Longo's testimony, to

argue that the police had a legitimate reason not to apply for a

warrant to search the defendant's cell phone. The prosecutor

also was permitted to respond to defense counsel's misleading

argument that a police officer who believed that the facts did

not meet the standard to establish probable cause nonetheless

should apply for a search warrant attesting to the existence of

probable cause. See Commonwealth v. Nelson, 460 Mass. 564, 568-

569 (2011) (affiant seeking search warrant must sign oath under

penalties of perjury that search would be supported by probable

cause). The prosecutor's snide remark that he would be "very

excited" to litigate future search warrant cases with defense

counsel was better left unsaid. "[E]nthusiatic rhetoric, strong

advocacy, and excusable hyperbole[, however,] are not grounds

for reversal" (quotation omitted). Commonwealth v. Wilson, 427

Mass. 336, 350 (1998), quoting Commonwealth v. Sanna, 424 Mass.

92, 107 (1997). "The jury are presumed to have a certain

measure of sophistication in sorting out excessive claims on

both sides." Wilson, supra.

The prosecutor's characterization of the defense as

"tinfoil-hat-wearing" reasonable doubt, on the other hand,
 17

crossed the line. See Lewis, 465 Mass. at 132-133, quoting

Commonwealth v. Kozec, 399 Mass. 514, 519 n.9 (1987) ("Defense

counsel's improper argument does not furnish the prosecutor 'a

license to indulge in improper argument'"). "A prosecutor may

address a particular point in defense counsel's closing argument

as a sham, but [the prosecutor] may not characterize the entire

defense as such." Lewis, supra at 130, citing Commonwealth v.

McCravy, 430 Mass. 758, 764 (2000).

In context, the prosecutor's improper remark did not create

a substantial risk of a miscarriage of justice and does not

warrant a new trial. "Remarks made during closing argument are

considered in the context of the entire argument, together with

the evidence presented at trial and the judge's instructions to

the jury." Commonwealth v. Huang, 489 Mass. 162, 180 (2022).

The judge instructed the jury that closing arguments are not

evidence, and that it was their duty to determine the facts and

to apply the facts to the law as explained by the judge. The

judge also properly instructed on the meaning of reasonable

doubt. In light of these instructions, and the strength of the

Commonwealth's case, we are confident that the ill-advised

comment would have had no effect on the jury's verdict.

3. Conclusion. As there was no abuse of discretion in

denying the defendant's motion for discovery and no error

warranting a new trial, the judgment is affirmed.
 18

So ordered.