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Commonwealth v. Frank1/12/2001
the subject of an objection. We therefore examine whether anything said by the prosecutor was improper and, if so, whether the impropriety created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Luce, 399 Mass. 479, 483 (1987), and cases cited; Commonwealth v. Haas, 398 Mass. 806, 812 (1986). In making this analysis, it is important to note that this case was tried in 1988. The prosecutor had the benefit of the decision in Commonwealth v. Kozec, 399 Mass. 514 (1987), in which we set forth the obligations of prosecutors with respect to proper and fair closing argument. However, the prosecutor did not have the benefit of the many cases decided by this court, and the Appeals Court, since 1988, in which the general principles discussed in the Kozec decision have been applied to specific arguments made by prosecutors that were claimed to be improper.
We need not address each of the criticized remarks. We conclude that the prosecutor's argument, for the most part, was based on the evidence and fair inferences from the evidence. See Commonwealth v. Kozec, supra at 516. As was said about the complaints of the prosecutor's closing remarks in the opinion upholding the convictions of the co-defendant Steven A. Costa, " he passages [complained of] amount to little more than enthusiastic rhetoric, strong advocacy, and excusable hyperbole." Commonwealth v. Costa, 414 Mass. 618, 629 (1993). On one or two occasions the prosecutor may have gone over the line with an improper appeal to the jury's sympathy. The judge's instructions clearly informed the jury that the closing arguments of counsel are not evidence, and because the jury are to be given a measure of sophistication in sorting out excessive claims made in closing argument, we conclude that any missteps made by the prosecutor did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Kozec, supra at 517; Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984).
4. We have reviewed the record pursuant to our duty under G. L. c. 278, ? 33E. The verdict of murder in the first degree is not against the law or the weight of the evidence, and the verdict deserves to stand.
Judgments affirmed.
Order denying motion for a new trial affirmed.
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