Opinion
14-P-1900
04-28-2017
COMMONWEALTH v. Iftikhar BHATTI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of indecent assault and battery on a person fourteen or older. He appeals, arguing that the prosecutor's closing argument was improper in several respects and that, as a result, he is entitled to a new trial. We affirm.
Background. Briefly, the jury heard the following evidence for the Commonwealth. The defendant was an area manager for Burger King and the victim was an assistant manager at one restaurant location. On a particular day, the victim was assigned to clean the stockroom with another manager. Later, the defendant asked the victim to show him the stockroom—a location where there was no surveillance equipment, although there were cameras in other locations in the restaurant. In the stockroom, the defendant put his arm around the victim and touched her breasts. When the victim pushed him away, he pulled her into an embrace and kissed her on the forehead. Afterwards, he said to her, "I'm going to kill you." When she asked why, he responded, "[Y]ou know why."
A coworker, Luis Rojas, testified as a first complaint witness. An assistant manager, Matthew Snouffer, testified for the defendant that Rojas had told Snouffer that he didn't believe the victim's allegations were true. Sofia Slami, the restaurant manager, testified for the defendant about what appeared to her to be the victim's seemingly unruffled demeanor after the alleged incident. She also testified that surveillance footage from a camera outside the stockroom showed both the victim and the defendant going into the stockroom and then coming back out after a minute and five seconds. The defendant testified and denied that he had touched the victim at all.
Discussion. "In analyzing a claim of improper argument, the prosecutor's remarks must be viewed in light of the ‘entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.’ " Commonwealth v. Ortiz, 463 Mass. 402, 415 (2012), quoting from Commonwealth v. Raposa, 440 Mass. 684, 694 (2004). Because the defendant has not shown that he objected at trial on the grounds advanced on appeal, we review for error and, if there was error, whether the error gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Shanley, 455 Mass. 752, 773 (2010).
In his brief, the defendant states the standard of review is whether there was prejudicial error. However, in response to an inquiry at oral argument, appellate counsel conceded that the standard is, in fact, whether there was error and, if so, whether any error created a substantial risk of a miscarriage of justice. According to the trial transcript contained in this record, after the conclusion of the prosecutor's argument, defense counsel requested a sidebar conference, which lasted a little over a minute but was not transcribed. Counsel informed the panel that he had attempted to recreate what transpired during that sidebar conference, specifically, as to whether defense counsel made any specific objection to the prosecutor's closing argument. He was unsuccessful, as neither the defendant's trial counsel, nor the prosecutor, nor the judge, could recall the substance of that conference.
The defendant claims that the prosecutor several times overstepped what he considers the permissible rules of closing argument, and that these errors went to the heart of the defense. He challenges five specific statements, asserting that they were particularly offensive and impermissible. We note at the outset that the prosecutor's language was strong and colloquial and at least one comment should not have been made. Nonetheless, the argument as a whole was focused on the only real issue at trial—the relative credibility of the victim and the defendant—and, considering the argument as a whole, we see no substantial risk of a miscarriage of justice.
First, the defendant contends that the prosecutor improperly showed disdain for the defendant and his attorney, and attacked the defendant's right to question the credibility of the victim, when the prosecutor stated, "Who do you believe? Who? You heard [the victim] testify. The big issue [is] that she doesn't remember whether she goes back to work [after the alleged assault]. It was even argued that moment should be frozen in time for her." The prosecutor then asked, rhetorically, "How do they know anything about what she should be thinking or should ... remember about that? Where do they get off telling the [victim] what she should remember and what she shouldn't be remembering?"
Although the phrases, "Where do they get off" and "How do they know anything" should have been worded differently, on the whole, "the comment was a fair response to defense counsel's attack on [the victim's] credibility.... See Commonwealth v. Cohen, 412 Mass. 375, 388 (1992) (not improper for prosecutor to comment on defendant's attempt to confuse or distract the jury by diverting their attention from strong evidence of defendant's guilt)." Ortiz, supra at 416.
Second, the defendant contends that the prosecutor's statement that the first complaint witness, Rojas, was "scared stiff about losing his job" was an invention, or mischaracterization, of evidence. He argues that Rojas responded only "That too" when asked by the prosecutor whether he was reluctant to testify because of fear of losing his job. Although characterizing the witness's demeanor as "scared stiff" may have been hyperbolic, Rojas did testify that one of the reasons he did not want to testify was the fear of losing his job. The prosecutor rightly was permitted to "marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting from Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). "Those inferences need only be reasonable and possible." Roy, supra.
Third, with regard to Snouffer, the defendant argues that the prosecutor's comment, "[W]hat rock did they grab that guy out from under?" was an ad hominem attack on the witness and, by inference, on the defendant's right to call a witness and to present a defense according to the defendant's version of the facts. In the defendant's view, the prosecutor was mocking the defendant and his counsel for calling Snouffer, causing the jury to view them in contempt and drawing a negative inference; relying on Commonwealth v. Hughes, 82 Mass. App. Ct. 21, 29-30 (2012), he cites to his fundamental right to call a witness on his behalf. We agree that the comment was inappropriate and gratuitous, and "was, at best, a disfavored risky, dramatic, hyperbolic, and rhetorical embellishment." Commonwealth v. Gonzalez, 59 Mass. App. Ct. 622, 629 (2003). What followed, however, was, for the most part, an argument that the witness's testimony (that Rojas had told him that Rojas didn't believe the victim's allegations were true) was not convincing. That much was proper.
The prosecutor declined to cross-examine this witness.
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Fourth, the defendant contends that the prosecutor impermissibly questioned the veracity of the manager, Sofia Slami, when stating that her testimony was "payback" for being hired by the defendant as the store manager. According to the defendant, by remarking, "If you were running that store who would you want working for you? Sofia?" the prosecutor was inviting the jury to decide the case on emotion rather than facts. However, the prosecutor was making the point that the defendant was stringing along the victim, having her believe that she was going to become store manager, because "[h]e knew that he was going to get what he was looking for from [the victim]." When viewed in context, these remarks "could reasonably be viewed by the jury as fairly commenting on the inherent implausibility or unreliability of the defendant's" version of events. Commonwealth v. Correia, 65 Mass. App. Ct. 27, 32 (2005).
Finally, the defendant criticizes the argument that the defendant had led the victim to believe that she would be promoted and promised to help her become a store manager and then had failed to help her. Specifically, the prosecutor said, "How does he help her? No training. Doesn't provide what she needs to know ... to do it, and then comes in here and tells you she's no good and he puts [the victim's] head under the water when he tells [the jury] on the stand the room [where the assault occurred] wasn't clean upstairs when [he] looked at it. He just won't let it go." The defendant argues that the prosecutor again was angling to gain sympathy with the jury by engaging in a personal attack on the defendant. He maintains that the "head under the water" metaphor conjured up an image of the defendant torturing or drowning the victim, that "[t]he prosecutor does not argue; he agitates." The defendant further argues that the prosecutor's later comments to the jury as to the defendant's demeanor while on the stand ("sitting back, legs folded, talking, answering questions that aren't before him ... He's in charge") made the defendant appear unlikeable, not credible, and as someone who should be convicted.
We are not persuaded. Commenting on the implausibility of the defense is permissible, as is commenting on the defendant's demeanor as a witness. See Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 51-52 (2003). And, in fact, the judge specifically instructed the jury that they might consider the demeanor of any witness as part of their consideration of the witness's credibility.
"[W]e have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence," and "enthusiastic rhetoric, strong advocacy, and excusable hyperbole are not grounds for reversal." Correia, supra at 34 (quotations omitted). In addition, we have in mind that, before the trial began, and after closing arguments, the judge instructed the jury that the closing arguments of counsel are not evidence. The jury are presumed to follow the judge's instructions. Commonwealth v. Andrade, 468 Mass. 543, 549 (2014).
Considering the prosecutor's closing argument as a whole in the context of all of the evidence and the judge's instructions, "[e]ven if any or all of these statements were improper and irrespective of whether they are considered separately or cumulatively, we see no substantial risk of a miscarriage of justice." Gonzalez, 59 Mass. App. Ct. at 629-630.
Judgment affirmed.