United States v. Frederick Hardy
1994 U.S. App. LEXIS 28318, 37 F. 3d 753 (1994)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A prosecutor's comment violates a defendant's Fifth Amendment right against self-incrimination if it is manifestly intended to be, or is of such a character that a jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify. Such a constitutional error, when combined with other improper arguments in a case with weak or circumstantial evidence, may deprive the defendant of a fair trial and warrant a new one.
Facts:
- On the evening of April 18, 1991, several police officers heard gunshots in a Boston housing development.
- The officers observed three men, including Frederick Hardy and Raymond Moreno, Jr., running from the direction of the shots.
- Officers saw Moreno pass a long, dark object to another man, after which Moreno surrendered.
- Officer Garvey confronted Hardy in a courtyard. As Hardy raised his arms, Garvey heard a 'soft thud' but did not see any object leave Hardy's hands.
- Hardy was arrested and had no weapons on his person.
- A search of the area revealed a .32 caliber pistol about five to eight feet from where Hardy had stopped.
- A sawed-off shotgun was found hidden in bushes along the path the men had run.
- After his arrest, Hardy denied knowing Moreno, but a witness and an officer testified to seeing them together on prior occasions.
Procedural Posture:
- A grand jury returned a five-count indictment against Frederick Hardy and his co-defendant, Raymond Moreno, Jr.
- Hardy was tried in the U.S. District Court for the District of Massachusetts on charges of being a felon-in-possession of a firearm and ammunition, and possession of an unregistered short-barreled shotgun.
- Following a jury trial, Hardy was convicted on all counts.
- The district court sentenced Hardy to 262 months' incarceration.
- Hardy appealed his conviction and sentence to the United States Court of Appeals for the First Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a prosecutor's closing argument statement that the defendants are 'still running and hiding today' violate a defendant's Fifth Amendment right against self-incrimination when the defendant did not testify at trial?
Opinions:
Majority - Torruella, Circuit Judge.
Yes. The prosecutor's statement violated the defendant's Fifth Amendment right against self-incrimination because it was a comment on his failure to testify. The prosecutor's analogy, stating the defendants were 'still running and hiding today' after describing them running and hiding on the night of the crime, had a 'natural and necessary implication' that they were hiding behind their constitutional right to silence at trial. This error required a new trial when analyzed under the court's four-factor test for prosecutorial misconduct: (1) the severity of the misconduct was high as it was a constitutional violation; (2) it occurred in the context of other improper and prejudicial remarks by the prosecutor; (3) the judge's curative instruction was insufficient to negate the prejudice; and (4) the evidence against Hardy was not overwhelming, being largely circumstantial and dependent on the credibility of a single officer. The cumulative effect of these errors deprived Hardy of a fair trial.
Analysis:
This decision reinforces the strict application of the Griffin rule, which prohibits prosecutorial comments on a defendant's silence, extending it to indirect and metaphorical language. The court's analysis emphasizes the importance of cumulative error, demonstrating that multiple instances of prosecutorial misconduct can collectively warrant a new trial even if individual errors might be considered harmless. Furthermore, the case highlights the critical relationship between the strength of the evidence and the harmless error analysis; a constitutional violation is more likely to be deemed prejudicial and reversible in a close case built on circumstantial evidence.
