Opinion
13-P-1877
12-12-2014
COMMONWEALTH v. MATTHEW BRACE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Matthew Brace, appeals from convictions of violating an abuse prevention order and of assault and battery on a person protected by an abuse prevention order. The defendant argues that the prosecutor's closing argument was improper. We affirm.
The defendant conceded at oral argument that the other argument he raised in his brief was recently decided adversely to the defendant by the Supreme Judicial Court and, therefore, the argument is now meritless. See Commonwealth v. Torres, 468 Mass. 286, 290 (2014) ("[V]iolation of an abuse prevention order is not a lesser included offense of assault and battery on a person protected by an abuse prevention order because, although there is some overlap, each crime has at least one element that the other does not").
Discussion. Prosecutor's closing argument. The defendant argues that two portions of the prosecutor's closing argument were improper.
First, the defendant argues that the prosecutor inappropriately suggested that the jury had "an overarching interest in preventing this kind of violence" and that this statement combined with the discussion of the impact this kind of violence had on bystanders inappropriately played to the jury's sympathies. Defense counsel objected to this portion of the argument as soon as the prosecutor finished his closing argument. In response to the objection, the judge instructed the jurors that they "cannot be influenced by the impact that [the] verdict may have on anyone, whether that's the defendant, the witnesses, or the attorneys" and then further specified that:
Defense counsel stated: "Your Honor, I would object to the Commonwealth's closing to the extent that there was improper argument. Mr. Morse told the jury that they have an interest in protecting against violence and that he -- I believe he actually said domestic violence. So I would object for the record and object very strenuously to that improper argument, Your Honor."
The judge asked defense counsel what he would like done, and defense counsel responded that he wanted a curative instruction and provided input on what would be included in the instruction. The judge agreed to provide the instruction and told both attorneys what the instruction would entail. The defense counsel did not object to the proposed instruction.
"In that regard, let me tell you that to the extent that you may have been asked to consider any interest that you have as community members in stopping violence in considering this case, that is not a proper consideration.
You are not advocates. You are not partisans. You are neutral fact finders who must base your decision on the evidence and not on considerations of what impact your verdict may have on anyone, as I've said, including anyone involved in this case or including anyone who's not involved in this case."An "[o]bjection made at the conclusion of the prosecutor's argument normally preserves the defendant's right of appeal." Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). "[H]owever, where the objection to the closing was followed by focused, particularized instructions," with which the defense counsel "indicate[s] he was satisfied," we instead review the alleged error to determine if it created a substantial risk of a miscarriage of justice. Ibid.
We assume, without deciding, that this argument by the prosecutor was error. However, the instruction, which was included in the judge's charge provided shortly after the closing arguments and responded directly to the objected-to portion of the argument, mitigated any error arising from these statements. See Beaudry, supra at 588 (citation omitted) ("'[T]he judge's emphatic instruction was sufficient to cure' any improper statement, particularly when measured against the standard of a substantial risk of a miscarriage of justice"); Commonwealth v. Akara, 465 Mass. 245, 262 (2013) ("The judge's charge, following shortly after closing argument and responding to the prosecutor's improper argument, mitigated the error").
Second, the defendant argued that the prosecutor's arguments attacking the credibility of the victim's in-court testimony were inappropriate for various reasons. The defendant did not object to these arguments at trial. Defense counsel argued in his closing that the Commonwealth was inappropriately asking the jury to ignore the victim's testimony that the defendant did not hit her and that the defendant did not cause her injuries. "The prosecutor was entitled to respond to this argument." Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010).
The prosecutor responded by explaining that the Commonwealth was not attempting to disempower the victim or asking the jury to ignore her testimony but to consider it in the context of the other evidence and then reject the victim's testimony concerning the incident. In making this argument, the prosecutor referenced the testimony of the two disinterested eyewitnesses who each testified to observing the defendant drag the victim by her hair. The prosecutor also referenced the police officer's testimony concerning the statements the victim made at the time of the incident and the medical records that contradicted some of the victim's testimony. Finally, the prosecutor argued that the evidence that the victim had allowed the defendant in her apartment despite the restraining order made her testimony that she asked the defendant to meet her in front of Dunkin' Donuts on this occasion not credible. It was in this context that the prosecutor said that the jury had no information concerning the victim's motivation for her testimony and discouraged them from taking the case less seriously based upon a sense that the victim "doesn't care."
"It is not improper to make a factually based argument that . . . a particular witness should be believed or disbelieved." Commonwealth v. Kozec, 399 Mass. 514, 521 (1987). Here the prosecutor made an argument based upon evidence presented that the jury should not believe the victim's testimony. The passing reference to the difficulty of reaching conclusions concerning the victim's motivation and the suggestion that she did not care about the outcome of the case were not error.
Judgments affirmed.
By the Court (Trainor, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 12, 2014.