Supreme Judicial Court of Massachusetts Rejects Defendant’s Argument That Prosecutor Erred by Saying He “Circled the Victim Like a Shark”

In Commonwealth v. Collins, 373 N.E.2d 969 (Mass. 1978), the Supreme Judicial Court of Massachusetts reversed a defendant’s murder conviction based upon the prosecutor referring to him as an “animal” in his closing argument. Forty-seven years later, a prosecutor said during closing argument that a murder defendant “circled [the victim] like a shark.” So, was this also grounds for reversal?

In Commonwealth v. Phillips, 495 Mass. 491 (Mass. 2025), the facts were as stated above, with the defendant allegedly killing the victim soon after he exited his car. As noted, in closing argument, the prosecutor told the jurors that defendant “circled [the victim] like a shark.” 

In rejecting the defendant’s appeal, the court ruled as follows:

The defendant objected to the prosecutor’s statement that the defendant and Carleton “circled [the victim] like a shark.” We do not condone the use of language suggesting that a defendant is inhuman or akin to an animal. See Commonwealth v. Sheehan, 435 Mass. 183, 190-191, 755 N.E.2d 1208 (2001) (labeling defendant “predator” who “picked the weak chick to prey upon” was unwarranted); Commonwealth v. Collins, 374 Mass. 596, 601, 373 N.E.2d 969 (1978) (prosecutor’s “use of the term ‘animal,’ which the jury might well have inferred was a reference to the defendant, was clearly an impermissible excess”). That said, the common idiom of “sharks circling” refers to people waiting to take advantage of a situation (usually in a financial context), and we think that the jury would have understood the phrase as a description of the defendant’s and Carleton’s conduct rather than as a dehumanization of them. See Commonwealth v. Kozec, 399 Mass. 514, 517, 505 N.E.2d 519 (1987) (“A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed”). This is especially the case where the common understanding of the idiom matched the evidence of the defendant’s and Carleton’s conduct leading up to the shooting, circling the area by car.

-CM