Opinion
20-P-1014
05-21-2021
COMMONWEALTH v. Mohammed AL-MURAD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant was convicted of one count of indecent assault and battery on a child under the age of fourteen. G. L. c. 265, § 13B. Because we discern no substantial risk of a miscarriage of justice created by the prosecutor's closing argument, we affirm.
The jury acquitted the defendant of two other counts of the same offense involving the same victim.
Background. We summarize the trial testimony and other evidence, reserving certain details for later discussion. The defendant and the victim's mother dated for approximately five years; although the defendant did not live with the family, he spent significant amounts of time with them and had been involved in the lives of the victim and her younger brother throughout his relationship with the children's mother. From the time the defendant and the victim's mother began dating, the defendant acted as a father figure to the children.
Although by 2018, the defendant and the victim's mother had ended their romantic relationship, the defendant continued to care for the then seven-year-old victim and her brother while the mother was at work, including bathing them and getting them ready for bed.
The victim testified that in August, 2018, while the victim's mother was at work, the defendant was giving the victim and her brother a bath. The defendant, who was wearing "ripped underwear[ ]," got into the bathtub with the two nude children and sat behind the victim, who was facing away from him. After initiating a "challenge to hold your breath under water" in which the children knelt on the floor of the tub and put their faces in the water, the defendant held the victim by her stomach and drew her closer to him, then "grabbed his private and put it up [the victim's] butt." Asked how she knew it was the defendant's "private," i.e., his penis, the victim explained that it was "right where his private was," and that he "grabbed it from the ripped hole underwear." The victim described the location of the defendant's "private" as being in the front of his body and under the belly button and described that body part as being "kind of like a water bottle except the texture and the shape." She agreed that "it was like a water bottle but [had] the texture of skin," and testified that when the defendant pressed his body against her from behind, she felt his skin, rather than his clothes, on her body.
The transcript reflects the victim's repeated use of hand gestures to illustrate her description.
The victim testified to two other indecent touchings. On one occasion, when she and the defendant were alone in the defendant's room, the defendant put her hand on his penis; she described the defendant's penis as "[k]ind of soft ... skin ... [l]ike kind of an oval," and "kind of like" a water bottle. Another time, when washing the victim in the shower, the defendant again took his penis through his "ripped underwear[ ]" and "put it up [her] butt."
Ultimately, the victim reported all three incidents to her mother, who, in turn, reported the defendant's conduct to the police. The defendant, who testified at the trial, admitted to bathing with the children "as a family together with [the children's mother]," but denied otherwise bathing with the children, and denied all the victim's accounts of the indecent touchings.
Discussion. On appeal, the defendant challenges the propriety of the prosecutor's closing argument. As the defendant did not object to the closing during the trial, we review any error only for a substantial risk of a miscarriage of justice. See Commonwealth v. Joyner, 467 Mass. 176, 188 (2014).
1. Source of victim's sexual knowledge. The defendant's theory of the case was that in reporting the sexual abuse, the victim was telling "stories" and that her account of the defendant's conduct was not believable. In response to this argument, the prosecutor argued in closing that the jurors should credit the victim's description of the defendant's indecent touchings based on the victim's detailed description of the defendant's penis -- "[its] location, the texture, the shape, the size" -- which, the prosecutor argued, would accord with the jurors’ common sense and life experience. We discern no error in this portion of the prosecutor's argument. See Joyner, 467 Mass. at 188-189 (in closing, prosecutor may argue reasonable inferences from evidence); Commonwealth v. Ridge, 455 Mass. 307, 330 (2009) (in closing, "[c]ounsel also may call on the experience and common knowledge of the jury"). It was appropriate for the prosecutor to argue that the naïve vocabulary with which the victim described the defendant's genitalia made her testimony credible. See Commonwealth v. Kozec, 399 Mass. 514, 521 (1987) ("It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved"). Cf. Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 302-303 (1999) (testimony of ten year old girl that defendant was "pulling up and down" on "skin-colored belt" proved open and gross lewdness).
Later, however, the prosecutor strayed over the line of permissible argument. The prosecutor's rhetorical question, "How would a [seven] year old girl even know about this kind of touching or this kind of thing or sexual acts?" suggested to the jury that the victim's ability to describe the defendant's indecent touching "demonstrated knowledge of sexual mechanics or terminology not ordinarily possessed by children of her age." Commonwealth v. Beaudry, 445 Mass. 577, 580–581 (2005). Because there was no evidence at trial to support this argument, the argument was improper. See Commonwealth v. Dirgo, 474 Mass. 1012, 1015 (2016) ; Beaudry, supra. Before considering the effect of this error, if any, we address the defendant's other challenges to the prosecutor's closing.
We recognize that, as the Commonwealth argues, the victim in this case was eight years old at the time of trial -- significantly younger than the victims in Beaudry and Commonwealth v. Dirgo, 474 Mass. 1012, 1014 (2016), when the cases in which they were involved were tried. See Dirgo, supra (victim fifteen years old at time of trial); Beaudry, 445 Mass. at 581 (victim "twelve years and ten months old at the time of trial"). We assume arguendo that the same prohibition on this type of argument applies here, despite that distinction. See Beaudry, supra at 580.
2. Defendant as "predator." Highlighting the defendant's abuse of his quasi-paternal relationship with the victim in repeatedly assaulting her, the prosecutor asked the hypothetical question, "[W]ho does this kind of thing? Who only wears underwear to bath[e] children that are not [their] biological children and then who gets into the bathtub with them and holds a [seven] year old girl so close to his body; who does that?" and answered, "Someone who is a predator. Someone who has access to children in their most vulnerable moments ... when they trust you."
We agree with the defendant that in the circumstances of this case, the prosecutor's argument that the defendant was a "predator" was improper. While there was certainly evidence from which the jury could conclude that the defendant abused the victim's trust, the prosecutor's argument suggested, without evidentiary support, that the defendant took advantage not just of the victim in this case, but of "children" more generally. Given our precedent disfavoring even the hyperbolic use of the term "predator," we conclude that on this record, the prosecutor's argument was impermissible. See Commonwealth v. Sheehan, 435 Mass. 183, 191 (2001), quoting Commonwealth v. Griffith, 45 Mass. App. Ct. 784, 787 (1998) ("Although ‘hyperbole in closing arguments is hardly rare, and juries should be given credit for the ability to filter out oratorical flourishes,’ there is no support in the evidence for labelling the defendant a ‘predator,’ and the remark was unwarranted"). See also Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 312 (2021), quoting Commonwealth v. Bois, 476 Mass. 15, 34 (2016) (even where labels used are supported by evidence, name-calling during closing "amounts to an improper appeal for sympathy that risks ‘obscur[ing] the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt’ "). Cf. Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 235 (2002) (prosecutor's argument permissible where "persistent description of [the defendant] as a ‘predator,’ who ‘lurked’ to pounce on his ‘prey,’ ... was not unrelated to the theory of the Commonwealth's case and the evidence that [the defendant] set a trap for [the victim]").
We are not, however, persuaded that the prosecutor's argument shifted the burden of proof from the Commonwealth to the defendant. The prosecutor's question, although improper in its substance, called for the jury, and not the defendant, to provide an answer. Nothing about the prosecutor's argument suggested that the defendant -- who had already testified -- "had an affirmative duty to counter the Commonwealth's evidence against him." Commonwealth v. Lavin, 94 Mass. App. Ct. 353, 363 (2018), quoting Commonwealth v. Johnson, 463 Mass. 95, 113 (2012). Cf. Johnson, supra (prosecutor's rhetorical challenge, "How is [defense counsel] going to deal with that?" improperly "suggested to the jury a positive responsibility on the part of the defendant").
Even had it done so, we are satisfied that the judge's repeated and accurate instructions that the burden of proof rested exclusively on the Commonwealth were sufficient to ensure that the jury rejected any invitation to burden-shift.
3. Effect of errors. Although, as we have explained, we conclude that the prosecutor misstepped in her closing argument by suggesting that the victim's sexual knowledge could only have resulted from the defendant's conduct toward her, and in characterizing the defendant as "a predator," having considered "the argument as a whole, the judge's instructions to the jury, and the evidence produced at trial," Commonwealth v. Freeman, 442 Mass. 779, 786 (2004), we are not left with "a serious doubt whether the result of the trial might have been different had the error[s] not been made," and therefore discern no substantial risk of a miscarriage of justice resulting from those errors, Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). Our conclusion takes into account, inter alia, the fact that the defendant did not object to the portions of the argument that he now challenges on appeal, suggesting that the defendant himself did not consider the argument unduly prejudicial. See Commonwealth v. Lyons, 426 Mass. 466, 471 (1998). We also note that although the victim testified to three separate incidents of indecent assault and battery, the jury -- who had the opportunity to see the witnesses in person, and to make assessments of the witnesses’ credibility as they testified -- acquitted the defendant on two of those counts, including the charge in which the defendant was alleged to have placed the victim's hand on his penis. See Commonwealth v. Hampton, 91 Mass. App. Ct. 852, 855 (2017), quoting Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 109-110 (2000) (reasoning that even under more stringent "prejudicial error" standard, "[jury's] acquittal [of defendant on one of two indecent assault and battery charges] indicates that the jury parsed the evidence carefully and ‘suggest[s] that [the evidence] did not have a prejudicial effect on the jury’ ").
Judgment affirmed.