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Commonwealth v. Thomas4/6/1998
e removed from jury consideration.
4. The sentence for possession of marihuana. For his conviction of unlawful possession of marihuana, the defendant received a sentence of one year, to be served concurrently with a longer one (two and one-half years, eighteen months to serve) for the OUI conviction. The penalty prescribed by G. L. c. 94C, Section 34, for unlawful possession of marihuana is not more than six months in the house of correction or a fine of $500, or both. The record does not disclose that the defendant had been convicted previously of possession of marihuana, which would have subjected him to a longer sentence. His sentence on the marihuana offense should be revised to six months in the house of correction, to be served concurrently.
On the charge of possession of marihuana, the judgment is vacated, and the defendant shall be resentenced in accordance with G. L. c. 94, Section 34. The judgments on the other counts are affirmed.
So ordered.
BROWN, J. (dissenting in part). I disagree as to the potency of the toxin injected into the trial by the prosecutor. I think it was lethal. The defendant should have a new and fairer trial on the complaint charging operating a motor vehicle under the influence of intoxicating liquor.
Fair trial means fair, i.e., as close to impeccable as possible. Cf. Townsend v. Sain, 372 U.S. 293 (1963). Let us not forget, trials are not mini-Super Bowls, where only victory is sought. Prosecutors and defense counsel are officers of the court and that awesome responsibility compels each to act fairly and responsibly in the performance of their respective roles.
The manner in which the prosecutor handled the matter of the defendant's prior arrests (and the interchanging of the term "convictions" at several instances) was reckless, unprofessional, and, worst of all, patently unfair. As we have often said, the Commonwealth permissibly may play "hard ball," but "foul" ball is inherently unfair and, of course, totally unacceptable.
As to the prosecutor's closing argument, the majority acknowledges, as it must, that this "was a blow below the belt." Not only was the matter referred to in the prosecutor's closing argument not in evidence, but the judge had specifically ordered it excluded. Further, it was almost certainly prejudicial. Admonitions against careless and poor preparation resulting in improper closing argument are too numerous to list. I will merely point to the cases and authorities cited in Commonwealth v. West, ante 150, 153 n.4 (1998), as well as the language in a recent authored by the Chief Justice of the Supreme Judicial Court in a civil case: "A lawyer should not be free to argue improperly to a jury, relying on the Judge to give a saving instruction. Even after a long trial . . . , the allowance of a new trial motion may be the only fair resolution of a problem that counsel wilfully or recklessly created." Birbiglia v. Saint Vincent Hosp., Inc., 427 Mass. 80, 88-89 (1998).
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