Commonwealth v. Burston

The motion to suppress was properly denied for the reasons stated by the trial judge in his findings and rulings on the motion. The part of the prosecutor’s closing argument objected to by the defendant did not, as the judge correctly noted, refer to the defendant’s failure to take the stand, but only to his demeanor in the courtroom. Compare Commonwealth v. Storey, 378 Mass. 312, 314 (1979). After defense counsel objected, a bench conference was held at which the judge told counsel that what the prosecutor was referring to was that “your man was making faces at the jury.” Counsel said he was not aware of that and apparently was satisfied with the judge’s observation and his suggestion that “I think we’d better get away from it,” as he made no request for any [1037] action by the judge. The judge was correct when he indicated that the prosecutor’s argument was “all right as far as he’s gone.” Commonwealth v. Valliere, 366 Mass. 479, 494 (1974). Commonwealth v. Borodine, 371 Mass. 1, 11 (1976). Archer B. Battista for the defendant. Kevin Flynn, Legal Assistant to the District Attorney, for the Commonwealth, submitted a brief. Judgment affirmed.