MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant, Karen I. Riva-Clarke, was convicted of intimidation of a witness. The jury acquitted her of a charge of assault and battery by means of a dangerous weapon, a knife. On appeal, the defendant claims that evidence of her postarrest silence was erroneously admitted and that the prosecutor misstated the evidence in closing argument. We affirm.
1. Evidence of defendants refusal to speak with police officers. Chelsea Police Officer Thomas William Riley testified that when he arrived at the housing complex where the victim and the defendant lived, the victim was sitting on the front steps of a neighbors house, visibly distraught. The defendant came out of her apartment and “began yelling at [the officers] that something had happened; she didnt know what, but she wasnt involved.” When the police asked to speak with her, she immediately turned around and walked back to her apartment. The police stopped her before she went back inside and tried to ask her about what had happened, but “[s]he refused to speak to [them].” Because the defendant did not object to this testimony,
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we review any error to determine if it created a substantial risk of a miscarriage of justice. See Commonwealth v. Curran, 488 Mass. 792, 794 (2021).
Contrary to the defendants argument on appeal, the record does not show that the defendant was in custody when she refused to speak with the police. The arrest did not take place until after she refused to talk. While coercive police conduct short of a formal arrest can amount to custody, there must be “restraint on freedom of movement of the degree associated with a formal arrest.” Commonwealth v. Morse, 427 Mass. 117, 123 (1998), quoting United States v. Ventura, 85 F.3d 708, 712 (1st Cir. 1996). “The defendant bears the burden of proving custody.” Commonwealth v. Larkin, 429 Mass. 426, 432 (1999).
The defendant cannot carry her burden. Three of the four factors set forth in Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001), for assessing custody weigh in favor of the Commonwealth. The request to speak with the defendant took place outside her apartment, where she had voluntarily appeared and initiated communications with the responding officers. Riley did not inform the defendant that she was a suspect. The questioning was not aggressive; indeed, Riley only asked to speak with the defendant. The encounter did end with the defendants arrest -- the only factor in the defendants favor -- although the arrest was not based on anything the defendant said or did not say. Considering all of the circumstances, the defendant was not in custody; therefore, her refusal to speak cannot be characterized as pre- or post-Miranda silence.
We need not address whether the testimony should have been excluded as prearrest silence -- although this issue was addressed at oral argument, the defendant did not raise it in her brief. See Commonwealth v. Clemente, 452 Mass. 295, 308 n.20 (2008), cert denied, 555 U.S. 1181 (2009). In any event, we agree with the Commonwealth that properly analyzed as prearrest silence, the testimony that the defendant refused to speak with the police after she had volunteered that “something had happened” but “she wasnt involved,” was not erroneously admitted. Rileys testimony was “introduced in the context of the entire conversation” with the defendant and explained that the police attempted to follow up on her assertion of innocence. See Commonwealth v. Habarek, 402 Mass. 105, 110 (1988). “At no time did the Commonwealth use the defendants statement as evidence of [her] guilt.” Id. Cf. Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 113 (2011) (“The defendant had a constitutional right to silence, not a right to tell a story and then avoid explaining crucial omissions by stating they were an exercise of the right to silence”).
2. Closing argument. “Closing argument must be limited to discussion of the evidence presented and the reasonable inferences that can be drawn from that evidence.” Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). Riley testified that he recovered a knife from a garden adjacent to the defendants and victims house, and that “[i]t had a red substance on the tip that resembled blood.” With no objection from the defendant, in summation the prosecutor “suggest[ed]” to the jury that the red substance on the knife was blood. This was a “reasonable and possible” inference from the evidence, id., where the victim testified that the defendant held a knife to her throat and there was evidence of a cut on the victims neck. There was no error, let alone a substantial risk of a miscarriage of justice: the jury acquitted the defendant of assaulting the victim with the knife.
Judgment affirmed.
FOOTNOTES
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. Riley first testified that the defendant “immediately began walking back to the apartment and refused to talk to us.” The judge sustained the defendants objection and ordered this testimony struck. Inexplicably, the defendant did not object when Riley then testified, again, that the defendant walked away, the police stopped her, and she refused to speak with them. This is not a situation where the lack of objection is excused as an exercise in futility. See, e.g., Commonwealth v. Connolly, 49 Mass. App. Ct. 424, 426 n.2 (2000). The judge had just ruled favorably on the defendants objection to similar testimony.