Opinion
20-P-765
08-02-2021
COMMONWEALTH v. Rhawn D. DEPRIEST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury found the defendant guilty of assault and battery on a family or household member (A&BFHM), and of assault and battery (as a lesser included offense of assault and battery on a pregnant victim). He was sentenced to a specified term of incarceration for the A&BFHM conviction, and the assault and battery guilty verdict was placed on file for three years, without the defendant's assent. Unpersuaded by the defendant's arguments that the prosecutor made errors in his closing argument that require reversal of the A&BFHM conviction, we affirm that judgment. The Commonwealth appropriately concedes that the assault and battery guilty verdict is duplicative of the A&BFHM conviction, and we therefore order that guilty verdict set aside and the complaint to be dismissed.
Background. We summarize the trial evidence, reserving certain facts for later discussion.
The A&BFHM conviction was based on evidence that the defendant attacked the mother of his child -- with whom he lived -- outside a convenience store in Hyannis. A friend of the couple provided eyewitness testimony about the altercation. According to the friend's account, the defendant ran out of nearby bushes, somehow caused the victim to fall to the ground, got on top of the victim, and attempted to strangle her. At one point during this process, the defendant exclaimed that the victim had bitten his thumb.
In fact, it appears that the defendant and victim were married and that the victim declined to testify based on the marital privilege. However, evidence that the two were married was excluded. Nothing in this appeal turns on their marital status.
During cross-examination of the friend, defense counsel asked whether the friend was smoking marijuana outside the convenience store, or otherwise had consumed drugs or alcohol that day prior to the incident. The friend flatly denied this. She did, however, testify that the victim was pregnant while using drugs and that such drug use was probably why the defendant was angry at the victim.
The only other witness was the responding police officer who arrived at the scene after the defendant had left. Through the officer, the Commonwealth admitted a series of photographs of the scene and of the victim herself. The officer also testified about a conversation he had with the defendant during booking, in which the defendant stated that he had come to the scene to talk with the victim about their child who was in the custody of the Department of Children and Families. On cross-examination, defense counsel asked whether the eyewitness appeared to be under the influence of drugs. The officer responded, "I don't believe so."
In both his opening and his closing, defense counsel acknowledged that the defendant was angry at the victim, and claimed that it was out of concern for her use of drugs while she was pregnant. Defense counsel further asserted that someone who was angry for that reason would not then physically attack the pregnant woman in question.
Discussion. 1. Closing argument. The defendant claims several errors in the prosecutor's closing argument. None of these arguments was preserved through a contemporaneous objection. Our review, therefore, is limited to whether any errors, alone or in combination, caused a substantial risk of a miscarriage of justice. See Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 313 (2021). "[P]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Tassinari, 466 Mass. 340, 355 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Such inferences "need not be necessary, or inescapable; they only need be reasonable and possible." Commonwealth v. Rakes, 478 Mass. 22, 40 (2017).
Generally speaking, the defendant's claims that the prosecutor mischaracterized the evidence and urged the jury to draw unreasonable inferences from it are simply wrong. For example, there was no error in the prosecutor's statement that the photographs depicting injuries to the victim's legs and dirt around her knees were "consistent" with the friend's account of the altercation. Nor was there any error in the prosecutor's suggestion that the jury should view the evidence of the nature of the encounter between the defendant and the victim in the Commonwealth's favor. Similarly, while it is true, of course, that there was no direct proof of what the victim was thinking when she apparently bit the defendant's thumb, the prosecutor's suggestion that she "felt the need to [do this] as he had his hand on her face," was based on a reasonable inference from the evidence. And while there is some truth to the defendant's claim that the prosecutor put the officer's view of the friend's sobriety more definitively than the officer had, any exaggeration amounted to "excusable hyperbole" (citation omitted). Commonwealth v. Collazo, 481 Mass. 498, 504 (2019). See Commonwealth v. Silva, 455 Mass. 503, 515 (2009) ("The jury are assumed to possess sufficient sophistication in sorting out excessive claims").
The fact that the judge did not allow the responding police officer to expound on whether the photographs demonstrated causation is not to the contrary.
The prosecutor did misstate the evidence in one respect. Specifically, he argued that the responding police officer expressed an opinion that the victim herself was not under the influence of drugs or alcohol at the time of the incident when, in fact, that topic never arose during the officer's testimony. However, we agree with the Commonwealth that this went to a collateral issue, not to the heart of the case. The defendant argued that he did not physically attack the victim, not that his actions were justified in self-defense. Nor was the victim's credibility at issue. Her sobriety at most went to the defendant's state of mind, relating to his argument that his concern was over the victim's use of drugs while pregnant and that it was unlikely that someone who had such concern would physically attack her. But the friend testified that the victim was a drug user (thus establishing an evidentiary basis for the defendant's state of mind argument), and whether the victim was sober at the particular time of the incident had little pertinence to the defendant's guilt or innocence. Also, the judge instructed the jury that closing arguments are not evidence, that it was their recollection of the evidence that mattered, and that they were the ultimate adjudicators of the facts. We presume the jury followed the judge's instructions. See Commonwealth v. Johnston, 467 Mass. 674, 692 (2014). This one misstatement of the evidence did not cause a substantial risk of a miscarriage of justice.
The defendant also takes issues with two comments the prosecutor made on the friend's credibility. First, during his closing argument, the prosecutor urged the jury to credit the friend's account of the incident in part because she was a third party with "no real horse in the race here." That comment was supported by the evidence. As the defendant acknowledges, the case law recognizes that a prosecutor at times can argue that a witness has no motive to lie. See, e.g., Commonwealth v. Smith, 450 Mass. 395, 408 (2008). However, the defendant suggests that such cases sanction such argument only where the defendant first has attacked the credibility of the witness, which did not occur in the case before us. We need not decide whether the defendant's interpretation of the cases is correct, because even if the prosecutor should not have gotten into the issue unilaterally, we discern no resulting substantial risk of a miscarriage of justice from this brief comment. This is especially true in light of the fact that the judge thoroughly instructed the jurors to the effect that it was their job to assess the credibility of the witnesses. See Johnston, 467 Mass. at 692.
During his closing argument, defense counsel questioned the friend's ability to view and perceive the incident, but he did not claim she was biased.
The defendant also argues that the prosecutor improperly vouched for the friend's testimony with a second comment. After recounting how the friend was in a position to provide "a good description of exactly what happened," the prosecutor added "which is exactly what she did." See Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 10 (2019), quoting Commonwealth v. Wilson, 427 Mass. 336, 352 (1998) ("Improper vouching occurs when ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury’ "). Perhaps if read in isolation, the "exactly what she did" comment could be taken as suggesting the prosecutor's personal view that the witness was giving an accurate account of the incident. However, closing arguments are viewed in context. Sanchez, supra at 10. Here, the comment did not suggest that the jury should believe the witness because of information the prosecutor had that was not put in evidence, but rather that the witness's testimony was specific and therefore credible. Even if the particular phrasing of the comment was inadvisable, it did not cross the line into improper vouching. See id. ("It is not considered improper vouching if a prosecutor draws inferences about a witness's credibility from the evidence"). In any event, even if this was error, it did not cause a substantial risk of a miscarriage of justice (on its own or viewed together with other alleged errors).
2. Duplicative offense. It is indisputable that assault and battery is a lesser-included offense of A&BFHM. In determining whether there were duplicative convictions, "[t]he appropriate inquiry is whether there is any significant possibility that the jury may have based the defendant's convictions of greater and lesser included offenses on the same act." Commonwealth v. Kelly, 470 Mass. 682, 701 (2015). The Commonwealth did not assert to the jury that the two charges here were based on separate and distinct acts, and the judge did not instruct the jury on that issue. On appeal, the Commonwealth appropriately acknowledges that "[t]here is a significant possibility in this case that the jury may have based the defendant's convictions of ‘[a]ssault and [b]attery’ and [A&BFHM] on the same act or series of acts." We agree with the view of both parties that the guilty verdict on assault and battery must be vacated and the complaint dismissed. See, e.g., id. at 701-702.
"Absent exceptional circumstances," guilty verdicts placed on file with the defendant's consent cannot be appealed. Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). Here, however, the defendant did not consent, and the duplicative conviction is also an exceptional circumstance. See, e.g., Commonwealth v. Phuon, 486 Mass. 35, 40 (2020).
Conclusion. On count 1 of the complaint, charging assault and battery on a pregnant victim, the verdict of guilty on the lesser included offense of assault and battery is set aside, and the complaint is to be dismissed. On count 2 of the complaint, charging assault and battery on a family member, the judgment is affirmed.
So ordered.
Affirmed in part; dismissed in part