United States v. Hardy ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 92-1210
93-2050
UNITED STATES,
Appellee,
v.
FREDERICK HARDY,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella and Stahl, Circuit Judges,
Carter,* District Judge.
Owen S. Walker, Federal Defender Office, for appellant.
Michael J. Pelgro, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, and Ralph F. Boyd,
Jr., Assistant United States Attorney, were on brief for
appellee.
October 12, 1994
* Of the District of Maine, sitting by designation.
TORRUELLA, Circuit Judge. A grand jury returned a
five- count indictment alleging various firearm related charges
against defendant/appellant Frederick Hardy and his co-defendant
Raymond Moreno, Jr. A trial was held and the jury found both
defendants guilty on all counts. Moreno challenged his
conviction in a separate appeal. United States v. Moreno, 991
F.2d 943 (1st Cir.) (Torruella, J., dissenting), cert. denied,
114 S. Ct. 457 (1993). In this appeal, Hardy claims that the
government made several impermissible arguments at trial,
including improperly commenting in its closing on Hardy's
decision not to testify at trial. We believe that the
government's comment on Hardy's silence at trial violated the
Fifth Amendment, and that this error, coupled with other improper
arguments, deprived Hardy of a fair trial. We therefore vacate
Hardy's convictions and order a new trial.
I. BACKGROUND
A. Facts
We are concerned here not with a claim of insufficient
evidence, but with a case in which we find that the government
improperly commented on Hardy's right not to testify and made
other inappropriate remarks during the course of the trial.
Accordingly, our description of the facts is not limited in this
case to evidence and inferences most favorable to the government,
but rather it is designed to provide a balanced picture of the
evidence appropriate for determining whether the comments and
remarks were harmless or prejudicial. Arrieta-Agressot v. United
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States, 3 F.3d 525, 528 (1st Cir. 1993).1
On the evening of April 18, 1991, a group of five law
enforcement officers, while on foot patrol in the Lenox Street
Housing Development in Boston, Massachusetts, heard a series of
gunshots coming from another area within the development. Three
of the officers, Officers Garvey, Perkins and Devane, ran in the
direction of the shots; the other two, Officer Murphy and Trooper
Drummy, returned to a parked cruiser.
As Officers Garvey, Perkins, and Devane were running
down Hammond Street, they observed three black males emerge from
a courtyard in the direction of the gunshots, run across Hammond
Street, and disappear near a cluster of buildings across the
street. One of the officers described the three men as running
in a line in a "hunched over" manner. The men then disappeared
from view. Almost at once, two of the three officers, joined by
Officer Murphy (who had left his cruiser to assist in the foot
pursuit), saw three men running through a parking lot behind the
cluster of buildings, and gave chase.
The officers saw one of the three men veer off from the
other two and run in a separate direction. The second and third
men were then seen by the officers to come together briefly and
appeared to pass an object between them. Officer Murphy, who was
1 We have previously stated the relevant facts in United States
v. Moreno, 991 F.2d 943 (1st Cir.), cert. denied, 114 S. Ct. 457(1993). In light of the fact that we do not view the evidence in
the light most favorable to the verdicts in this case, as we did
in Moreno, the two recitations of facts differ in some respects.
Id. at 944-46.
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closest to the two individuals, described the item being
exchanged as a dark object about one to one-and-a-half feet long.
The individual who took this object then ran off through a grass
courtyard. The individual who passed on the object, Raymond
Moreno, Jr., immediately stopped, raised his arms and
surrendered.
Another police officer, Paul MacIsaac, aided in the
pursuit. Upon arriving at the scene, Officer Murphy, who had
Moreno in custody, directed Officer MacIsaac to head in the
direction where the other man, to whom Moreno had passed the
object, had run. Officer MacIsaac followed these directions, and
came across two black males at a nearby intersection, standing on
a sidewalk, looking into an adjacent field. Officer MacIsaac
questioned the two men, conducted a pat-frisk, and then placed
the two men in the back of his cruiser. The officer eventually
took them to the station for questioning and they were later
released.
Officer Garvey testified that in order to cut off any
escape route that the fleeing suspect might use, he had circled
around to the opposite end of the grass courtyard. Officer
Garvey soon saw a black male, wearing dark clothes, who was later
identified as Frederick Hardy, enter the courtyard. The Officer
testified that he never saw Hardy with any weapon in his
possession. After telling Hardy several times to stop, Officer
Garvey testified that as Hardy raised his arms -- first his
right, then his left -- over his head, he heard a soft thud on
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the ground nearby. Despite being only two to three feet away
from Hardy, however, Officer Garvey did not see any object leave
Hardy's hands. Hardy was then arrested. Hardy did not possess
any firearms when he was arrested. After Officer Garvey took
Hardy to a police cruiser, he returned to the area. A search of
the area revealed a .32 caliber pistol about five to eight feet
from where Hardy had stopped.
The officers searched the path between the area of
Moreno's arrest and the spot at which Officer Garvey first
observed Hardy. The officers found a double-barreled sawed-off
shotgun with a 12 1/2 inch barrel, fully loaded with ammunition,
hidden in bushes along that route.
While Moreno and Hardy were being arrested, Officer
Devane was in search of the first of the three runners, who had
gone off in a separate direction. Officer Devane discovered a
black male, Steven Fern ndes, sweating and out of breath, hiding
in some bushes. After arresting Fern ndes and placing him in the
cruiser, Officer Devane found a semi-automatic pistol on the
ground near where Fern ndes had been hiding.
After receiving his Miranda warning at the police
station, Hardy said that he had been at the development by
himself to visit his niece and ran when he heard shots. Hardy
denied knowing Moreno or Fern ndes. At trial, however, a
resident of the housing development testified that he had seen
Hardy together with Moreno and Fern ndes a number of times during
the prior year. Additionally, Officer Dreary of the Boston
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Police Department testified that in March 1991, he had stopped a
red Isuzu Trooper, and that Hardy was the driver and Moreno was a
passenger in the front seat.
B. Proceedings Below
The grand jury returned a five-count indictment against
Hardy and Moreno on June 25, 1991. Count One charged Hardy with
being a felon-in-possession of a firearm, and Count Four charged
Hardy with being a felon-in-possession of ammunition, both of
which were in violation of 18 U.S.C. 922(g). Count Two charged
Hardy with possessing a firearm, a short-barreled Stevens 12
gauge, double barrel shotgun, in violation of 26 U.S.C.
5861(d). Counts Three and Five charged Moreno with possession of
the same short-barreled shotgun and being a felon-in-possession
of ammunition.
The trial took place over ten days from October 28,
1991 to November 14, 1991. The jury returned guilty verdicts on
all five counts.
The court then sentenced Hardy to 262 months'
incarceration. Hardy appealed both his conviction and his
sentence, and on November 5, 1992, this Court, while retaining
jurisdiction, remanded the case to the district court with
respect to some sentencing issues. The district court then
reaffirmed Hardy's sentence, and Hardy again appealed. See
United States v. Hardy, 829 F. Supp. 478 (D. Mass. 1993). This
second appeal was then consolidated with the first appeal.
II. STANDARD OF REVIEW
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Hardy argues that the prosecutor improperly commented
on his failure to testify at trial, and that this comment
constituted a violation of his Fifth Amendment privilege against
self-incrimination, which unduly prejudiced his ability to obtain
a fair trial. We will utilize a de novo standard to review the
legal question of whether the prosecutor's argument constituted
constitutional error. United States v. Glantz, 810 F.2d 316, 320
n.2 (1st Cir.), cert. denied, 482 U.S. 929 (1987). We will
review the trial court's decision to deny Hardy's motion for a
mistrial, based on this alleged constitutional violation, for an
abuse of discretion. Id. (finding that district court abused
its discretion by ordering a new trial where the court believed
that the prosecutor improperly commented on the defendant's
failure to testify or produce documents at trial); see also
United States v. Turner, 892 F.2d 11, 12-13 (1st Cir. 1989).
III. THE PROSECUTOR'S COMMENT ON THE DEFENDANTS' SILENCE
A. Did the Prosecutor's Comment Violate the Fifth Amendment?
The most serious argument that Hardy raises in this
appeal concerns the prosecutor's closing argument at trial.2 In
Griffin v. California, 380 U.S. 609, 615 (1964), the United
States Supreme Court held that the Fifth Amendment's self-
incrimination clause forbids the prosecution from commenting on
an accused's failure to take the stand and testify during a
trial. A prosecutor's comment is improper where, under the
2 Defendant Moreno did not raise this Fifth Amendment argument
in his appeal.
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circumstances of the case, "the language used was manifestly
intended or was of such character that the jury would naturally
and necessarily take it to be a comment on the failure of the
accused to testify." Glantz, 810 F.2d at 322 (citations
omitted). A prosecutor's comment does not therefore need to be
direct; rather, a prosecutor may run afoul of the rule in Griffin
by making such comments inferentially. See Glantz, 810 F.2d at
322; see, e.g., United States v. Skandier, 758 F.2d 43, 45 (1st
Cir. 1985) (prosecutor's question during closing as to how
defense counsel would explain certain events which occurred, in a
case where the defendant had not taken the stand, was improper);
United States v. Flannery, 451 F.2d 880, 882 (1st Cir. 1971)
(prosecutor's comment that certain government evidence was
uncontradicted, when contradiction would have required the
defendant to take the stand, was improper).
We believe that here, the prosecutor improperly called
attention to the failure of Hardy to take the stand and testify
at trial. The prosecutor stated:
Ladies and gentlemen, the evidence here,
the only reasonable conclusion that can
come from this evidence is that Mr. Hardy
possessed that .32 caliber pistol loaded,
Mr. Moreno possessed the sawed-off
shotgun loaded, and that during the
course of the chase, Mr. Moreno passed it
off to Mr. Hardy so that he could get rid
of it. What the evidence shows is that
these two defendants that night were
running and hiding. They'd been involved
in that incident and then they
unfortunately had the misfortune of
running right into the police who just
happened to be in the area, and they were
running and hiding, running from the
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police and hiding the evidence from the
police. They're still running and hiding
today. The time has come for them to
stop running and stop hiding. The time
has come for them to be held accountable
for the wrongful acts that they committed
on the night of April 18th, 1991 in
Boston. That time is now and only you
can hold them accountable. Thank you.
(emphasis added).
Defense counsel objected and requested a limiting instruction.
The district court was initially concerned that such an
instruction might hurt rather than help, because the jury might
not have construed the prosecutor's remark as a comment on
defendants' silence. The court then asked the government:
Tell me this: In what other sense can
the Government argue that [the
defendants] are running and hiding even
at this time?
The government replied:
Because, your Honor, I'm just drawing an
analogy between their running and hiding
on that night and the Government's burden
of proving guilt beyond a reasonable
doubt.
The court stated:
I'm going to give the limiting
instruction. It doesn't satisfy me.
The court then gave the following instruction to the jury:
Members of the jury, I sustain the
objection to the argument . . . that even
today the defendants are running and
hiding. You will disregard that argument
and not consider it in any respect in
your consideration of the evidence in
this case.
The court then asked defense counsel if they requested further
instructions, and they replied no. The defendants moved for a
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mistrial, and the court denied these motions.3
The prosecutor's comment during his closing set up an
analogy between what the defendants were allegedly doing on the
night of the crime -- running and hiding -- and what the
prosecutor believed they were doing during the trial -- running
and hiding. Of course, the defendants were not literally running
from the trial or hiding during the trial. Rather, they were
both in custody and were sitting silently during each day of the
proceeding. Neither defendant testified on his own behalf. The
natural and necessary implication of the prosecutor's remark was
therefore that the defendants were running from the evidence
presented against them, and hiding behind their right to silence
during the trial. The prosecutor's comment therefore violated
the Fifth Amendment.
B. Is a New Trial Required?
Where it appears that the prosecutor has made an
improper argument to the jury, this Circuit has established a
standard to evaluate whether a new trial is required.
Although we have used slightly varying
terminology in describing [the relevant]
factors, the common denominators are (1)
the severity of the misconduct; (2) the
context in which it occurred; (3) whether
the judge gave any curative instructions
and the likely effect of such
instructions; and (4) the strength of the
3 In its charge to the jury, the trial court did state generally
that the government had the burden of proof, that the defendants'
had a constitutional right not to testify, and that the jury
should not draw any negative inferences from the exercise of that
right. These comments, however, in no way specifically addressed
the prosecutor's improper remark.
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evidence against the defendant.
United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994)
(citations omitted). We treat these factors in order, to
determine if the prosecutor's comment was harmless.
First, as we discussed above, we believe that the
prosecutor's argument constituted a violation of the Griffin
rule. Additionally, we believe that the comments were, in a
sense, deliberate. In his closing argument, the prosecutor had
constructed an analogy based on the facts of the case, with
certain rhetoric significantly repeated, which appeared to be
planned. We do not believe that the prosecutor intentionally
intended to influence the jury by commenting on Hardy's silence,
and we hope that our belief is not misplaced. We do believe,
however, that when preparing or reviewing his proposed closing,
the prosecutor should have known that such a comment was
improper.
Second, we point out that this comment was made against
a backdrop where the possibility that Hardy would receive a fair
trial was already in danger -- that is, the prosecutor's closing
was not an isolated instance of misconduct. See United States v.
Capone, 683 F.2d 582, 586 (1st Cir. 1982). In Moreno, 991 F.2d
at 947-51, we addressed several arguments, (two in the majority
opinion, two more in the dissent) which Hardy has also raised in
this appeal, relating to improper arguments made by the
government during trial. Our conclusions in Moreno are equally
applicable to this case.
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In Moreno, we noted that in the prosecutor's opening
remarks, he stated, "the evidence will show that [the police
officers] were doing their jobs protecting the community that has
been plagued by violence, senseless violence, shootings and
killings. That's why they were there and that's why we're here
today." Moreno, 991 F.2d at 947. We concluded that because
there was no evidence in the case about "senseless violence" or
"shootings and killings," it was patently improper for the
prosecutor to make those remarks. Id. The remarks played upon
the jury's emotional reaction to neighborhood violence and was
outside the bounds of legitimate argument. Id.We were equally disturbed by a second argument by the
prosecutor which not only reiterated the senseless violence
theme, but also established a second departure from the "straight
and narrow." Id. at 948. The prosecutor argued in his closing
that the shotgun was not just tossed away but deliberately
concealed, and continued: "Forget about the fact that maybe Mr.
Hooker [who lived nearby] or his wife or his three kids might
come out and look at the gun and get their heads blown off. But
I'm sure Mr. Hardy had other things on his mind going through
there, like getting away from the cops." Although we found that
both of these arguments were improper, we found that the errors
were harmless as they related to Moreno.4
4 We stated that the prosecutor's comments about the danger to
Mr. Hooker and his family, although improper, were harmless when
considered against Moreno, in part, because the objectionable
remarks did not directly relate to Moreno. Moreno, 991 F.2d at
948. The improper remarks, however, did have a greater effect on
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The dissent found two more arguments made by the
prosecutors to be troublesome. The prosecutor vouched for a
government witness, intimating that that witness possessed some
information beyond the evidence presented. Id. at 951(Torruella, J., dissenting). The prosecutor also improperly
disparaged defense counsel, by stating that they were paid to see
things in a different way, defense counsel was talking out of
both sides of his mouth, and that one defense argument was meant
to divert the jury's attention. Id.; see, e.g., United States v.
Boldt, 929 F.2d 35, 40 (1st Cir. 1991) (finding that the
prosecutor's statement that "it's a favorite defense tactic to
try to get you to focus on unnecessary facts" was improper,
especially in light of the institutional nature of the comment
which cast suspicion on the role of defense counsel in general).
The jury was therefore exposed to a number of emotional and
prejudicial arguments which potentially interfered with its
ability to appraise the evidence objectively and dispassionately.
Third, while the trial court gave a limiting
instruction, and Hardy's counsel did not request a stronger
instruction, we do not believe that the curative effect of the
judge's instruction negated the effects of the prosecutor's
constitutional indiscretion. Whether a curative instruction is
sufficient to avoid prejudice depends on the impact of the remark
Hardy's ability to get a fair trial, because the remarks did
relate directly to his alleged actions.
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taken in the context of the whole of the evidence, including any
other aggravating remarks or circumstances that may increase the
risk that the improper remark did affect the outcome. An
improper comment that may seem insignificant where the evidence
is overwhelming can assume a very different aspect in a close
case. This is such a close case.
Finally, the strength of the evidence proffered against
Hardy was not overwhelming. First, the government's case against
Hardy largely rested on the credibility of Officer Garvey.
Therefore, if the jury disbelieved, or had questions about,
Officer Garvey's testimony, we do not believe that Hardy would
have been convicted. Second, the jury was required to draw a
number of inferences in order to convict Hardy. No officer ever
saw Hardy possess either the pistol or the sawed-off shotgun.
While Officer Garvey testified that after he stopped Hardy, he
heard a soft thud as Hardy raised his arms, Garvey never saw a
gun in Hardy's hand, or fall from his hand, despite the fact that
he was only two to three feet away from Hardy. Rather, the
officers found the pistol later, in the area where Hardy was
stopped. Additionally, other officers found the shotgun hidden
in an area that Hardy had seemingly passed through, but nobody
saw Hardy dispose of the weapon there. There were also other men
stopped in the area who could have somehow been responsible for
the guns. We do not believe that this circumstantial evidence,
which for the most part rested on Officer Garvey's credibility,
clearly established Hardy's guilt. Moreover, in light of the
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prosecution's comment, the jury may very well have wondered,
either consciously or subconsciously, what Hardy had to say about
the extent of his involvement, and concluded that he must have
had something to hide because of his failure to testify.
The district court did not evaluate these relevant
factors on the record to determine if a new trial was warranted
in light of the prosecutor's improper closing argument, when
Hardy moved for a mistrial. Because all of these factors cut in
favor of a new trial, we believe that the district court abused
its discretion when it denied Hardy's motion. The government
improperly commented on Hardy's failure to testify, and in light
of the government's other improper comments and the evidence
presented, we believe that this constituted reversible error.
See, e.g., United States v. Barton, 731 F.2d 669, 675 (10th Cir.
1984). For the foregoing reasons, we vacate Hardy's
convictions and order a new trial.
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