Opinion
09-21-2016
COMMONWEALTH v. Damion FOSTER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of indecent assault and battery on a child under fourteen years of age. The judgment was affirmed on direct appeal, Commonwealth v. Foster, 53 Mass.App.Ct. 1111 (2002). In 2014, the defendant filed a motion for new trial claiming he received ineffective assistance of appellate counsel, and he appeals the denial of that motion. We affirm.
The Supreme Judicial Court denied further appellate review, Commonwealth v. Foster, 436 Mass. 1101 (2002).
The defendant claims his appellate counsel was ineffective for failing to challenge on appeal the prosecutor's opening statement and closing argument, as well as the redaction of one sentence from the victim's medical records. No objection was lodged to either the prosecutor's opening statement or his closing argument. In that posture, if the defendant cannot establish that a substantial risk of a miscarriage of justice was created by the claimed prosecutorial misconduct, appellate counsel's failure to raise those claims on appeal cannot form the basis of an ineffective assistance of counsel claim. See Commonwealth v. Curtis, 417 Mass. 619, 624 n. 4 (1994) ; Commonwealth v. Keon K., 70 Mass.App.Ct. 568, 574 n. 4 (2007). No such risk exists here.
1. The opening statement. The defendant claims that the prosecutor improperly appealed to the jury's emotions when he explained that the child victim's team interview permitted all of the investigators to get the necessary information in a single interview so the child would not be “victimized time and time again .” We disagree. The prosecutor's opening statement described the anticipated evidence, which later came from a police detective, who explained the team interview process for children. There was no objection to the detective's testimony. Indeed, in context, it is apparent that the prosecutor's reference was to preventing the child from being “victimized” by the interview process, not by the defendant, and it was not an appeal to sympathy. To the extent there was any error, it did not result in a substantial risk of a miscarriage of justice.
We similarly reject the defendant's claim that his right to confront his accuser was circumvented by the prosecutor's opening.
2. The closing argument. The defendant claims a variety of errors in the prosecutor's closing argument that his appellate counsel failed to raise. First, the defendant claims the prosecutor improperly called upon the jurors to pity and to sympathize with the victim by recounting how “painful” it was for her to testify. We disagree. The prosecutor was entitled to argue that the victim's testimony should be credited based on her demeanor on the witness stand. There was also evidence to support the argument that the victim feared the defendant. See Commonwealth v. Roy, 464 Mass. 818, 832 (2013). Furthermore, the prosecutor's other challenged comments were based on the evidence that the defendant did prey on the ten year old victim, that he “stole” her “innocence,” and that she had been traumatized. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).
Although it was appropriate for the prosecutor to characterize the victim's demeanor, he should not have personalized the matter by referring to it being “painful for [him],” or to suggest it was painful for the jury to watch. See Commonwealth v. Thomas, 401 Mass. 109, 114–116 (1987). Given the fleeting nature of the comment, the evidence supporting guilt, and the judge's jury instructions on closing arguments, any error did not risk a miscarriage of justice.
The evidence supported the prosecutor's characterization of the defendant as a predator as it showed that the assaults occurred repetitively, when the victim's mother was not at home, and while the defendant was “in charge” of the household. Also, regarding trauma, the victim had been hospitalized (before trial) because she was “depressed” about “a lot of things” including what the defendant had done to her.
The defendant also claims error in the prosecutor's request for the jury to use their common sense and their own experience with their children to evaluate the victim's credibility. We disagree. As the motion judge held, this was a fair response to the defendant's attack on the victim's credibility in his closing argument. Contrary to the defendant's claim, the prosecutor was not asking the jury to use their own children as “a moral compass,” but rather for the jurors to use their common sense and collective experience with children to determine whether the child victim should be believed. This was not improper.
The defendant further claims the prosecutor appealed to the jury's duty to convict by telling them that they should not let the defendant “get away with it,” and that a “unanimous verdict” will provide the jurors “with a renewed appreciation of the criminal justice system.” Although this was not an explicit statement of a duty to convict, it could have been understood as such. However, the lack of any objection leads us to conclude that possibility is slight. Of course a prosecutor may, and should, request that the jury find a defendant guilty, but the jury cannot be led to believe they have a duty to do so. See Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 53 (2003). But see Commonwealth v. Lyons, 426 Mass. 466, 471–472 (1998) (telling “jury [to] ‘do [their] duties as jurors to return a just verdict’ was not improper”); Commonwealth v. Adams, 434 Mass. 805, 822 (2001) (prosecutor may urge jury to “do its job” by considering evidence and deliberating “without [ignoble] motivations”); Commonwealth v. Phillips, 452 Mass. 617, 629 n. 10 (2008) (no error where prosecutor argued that defendant “can't [do this] and get away with it”). In the end, to the extent there was error, that error did not create a substantial risk of a miscarriage of justice given the evidence supporting guilt, the trial judge's jury instructions on closing arguments not being evidence, and that emotion and sympathy played no role in the jury's deliberations.
3. Medical records. Finally, the defendant claims that appellate counsel was ineffective for not challenging on appeal the redaction of one sentence of the victim's medical records. We disagree. The sentence at issue pertained to the victim's mother's drug use. The redaction was proper. Not only was the notation cumulative of the mother's own testimony, it was hearsay and it did not relate to the victim's medical treatment and history in order to be admissible under G.L. c. 233, § 79G. As this claim would not have prevailed on appeal, counsel was not ineffective by not raising it. See Commonwealth v. Butler, 464 Mass. 706, 719–720 (2013).