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Com. v. Harty12/16/2003
back at the station during the booking procedure." During trial, the prosecutor asked Trooper Crook to describe the defendant's demeanor after arrest. The officer replied that the defendant "appeared angry and uncooperative and refused to sign the paperwork that we asked him to sign." In his closing, the prosecutor asked rhetorically, was the defendant "uncooperative back at the station in signing paperwork. He was."
On appeal, the defendant claims that these remarks, taken together, impugned his rights under art.12 and the Fifth Amendment to remain silent by suggesting that the defendant had an affirmative duty to cooperate with police in their investigation. He further claims that defense counsel was fatally remiss in failing to object to these statements.
There is no question that a prosecutor may not for the purpose of urging an inference of guilt draw the jury's attention to the fact that a defendant exercised his constitutional right to remain silent in the face of police inquiry. See Doyle v. Ohio, 426 U.S. 610 (1976); Commonwealth v. Teixera, 396 Mass. 746. 752 (1986). Likewise, a prosecutor may never suggest to the jury that a suspect bears any affirmative duty during post-Miranda questioning to deny wrongdoing or otherwise assert his innocence. See Commonwealth v. Haas, 373 Mass. 545, 558-559 (1977). As we stated recently in Commonwealth v. Andujar, 57 Mass.App.Ct. 529, 536 (2003), "[a] defendant, when in the hands of police, should be able to invoke core constitutional rights, such as the right to remain silent, without the fear of making implied or adoptive admissions." To hold otherwise would reverse the traditional burden of proof in a criminal proceeding. "The presumption of innocence also means that no person ever has to prove his or her innocence." Commonwealth v.. Martino, 412 Mass. 267, 282 (1992).
***5 However, the Commonwealth here did not transgress these principles. Read in context, the prosecutor's statements cannot be construed as comments on the defendant's effort to assert his right to remain silent. Rather, the plain intent of the contested statements was to paint a picture of the defendant as a belligerent drunk--"uncooperative," not in the sense of being unforthcoming in asserting his innocence, but in the sense of being unruly or bellicose. There was no fatal defect, therefore, in the Commonwealth's presentation.
The defendant's judgments of conviction for operating a motor vehicle while intoxicated and for negligent operation of a motor vehicle are affirmed. The order denying the defendant's motion for new trial with respect to those convictions is affirmed.
So ordered.
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