Opinion
No. 11–P–1171.
2013-01-18
COMMONWEALTH v. Laura L. KENDERES.
By the Court (TRAINOR, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals her conviction for making a false report to a police officer, G.L. c. 269, § 13A.
On appeal, the defendant argues (1) that there was insufficient evidence to support the conviction, (2) that the prosecutor made improper statements during closing argument, and (3) that the judge violated the “rule of reason” in questioning the witnesses. We reject these arguments and affirm the judgment of the District Court.
“Whoever intentionally and knowingly makes or causes to be made a false report of a crime to police officers shall be punished by a fine of not less than one hundred nor more than five hundred dollars or by imprisonment in a jail or house of correction for not more than one year, or both.” G.L. c. 269, § 13A, inserted by St.1982, c. 219.
Standard of review. “In reviewing a denial of a motion for a required finding, we must look at the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Ruci, 409 Mass. 94, 96 (1991). Sufficiency of the evidence. The defendant claims that there is insufficient evidence to support two elements of the crime.
First, the defendant contends that because the Commonwealth failed to prove that Mr. Brown did not grab her, no rational jury could have determined that the report was false. The statute does not “criminalize the telling of any untruth to police that happens to be related to a crime.” Commonwealth v. Fortuna, 80 Mass.App.Ct. 45, 52 (2011). “[T]he defendant has to have made a substantially inaccurate accounting of the crime....” Ibid.
The defendant relies on the elements of the crime supplied by the Criminal Model Jury Instructions Model Jury Instructions for Use in the District Court § 7.260 (2006). The model instructions provide four elements: “First: that the defendant reported a crime to a police officer, or caused such report to be made; Second: that the report was false; Third: that the defendant intended to make the false report to a police officer and it was not made merely by accident or through negligence; and Fourth: that the defendant knew that the report he (she) was making or causing to be made was false.” Ibid.
Ms. Rosetti testified that Mr. Brown grabbed the remote control off the defendant's chair and never touched the defendant. She did admit, however, that her view was momentarily blocked and that she heard the defendant scream “Don't touch me.”
The jury also heard evidence of the defendant's many phone calls to the Weston police department. The defendant argues that this evidence is not sufficient to support a conviction because it lies in “conjecture or surmise and has no solid foundation in established facts.” Commonwealth v. Winfield, 76 Mass.App.Ct. 716, 721 (2010), quoting from Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). We disagree. “The inferences drawn from circumstantial evidence ‘need only be reasonable and possible[, not] necessary or inescapable.’ “ Commonwealth v. Morgan, 449 Mass. 343, 349 (2007), quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989). Ms. Rosetti clearly testified that she observed Mr. Brown reaching for the remote control while it was on the arm of the chair and not being held by the defendant. The inferences drawn from Ms. Rosetti's testimony, that Mr. Brown never touched the defendant, were “reasonable and possible,” even though her view was briefly blocked. A rational jury could have found that Mr. Brown never touched the defendant and thus concluded that the defendant made a “substantially inaccurate accounting of the crime.” Fortuna, supra. There was sufficient evidence to support this element.
This is the only version of the story we need consider in our analysis because it is the evidence in the light most favorable to the Commonwealth.
Second, the defendant claims that the Commonwealth did not establish sufficient evidence to show the defendant “intentionally and knowingly” made a false report. “A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980). “Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense.” Commonwealth v. Kilburn, 426 Mass. 31, 34–35 (1997), quoting from Commonwealth v. Giang, 402 Mass. 604, 609 (1988).
Under the facts most favorable to the Commonwealth, Ms. Rosetti's testimony established that Mr. Brown never touched the defendant, yet she still filed a police report. From this, two logical inferences can be drawn. First, the defendant truly believed she was assaulted and was thus filing a legitimate report. Or second, the defendant knew she was not touched, but filed a report anyway. “If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province.” Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S. C., 450 Mass. 215 (2007), S. C., 460 Mass. 12 (2011). Based on the second inference above, a rational jury could conclude that the defendant had the requisite intent and knowledge that she was filing a false report.
The defendant also argues, relying on the model instructions, that the Commonwealth must prove that she did not make the report by accident or through negligence. Model instructions are helpful to statutory analysis, but “we come at the interpretive process afresh .” Commonwealth v. Moran, 80 Mass.App.Ct. 8, 10 (2011). The statute is clear that the Commonwealth must only prove that the defendant made the report “intentionally and knowingly.” It does not require the Commonwealth to prove that the defendant did not act accidentally or negligently.
Prosecutor's statements. The defendant claims that the prosecutor made several improper statements during summation that independently and cumulatively created a substantial risk of a miscarriage of justice.
The questioned statements, according to the defendant, include the prosecutor endorsing the credibility of Ms. Rosetti and pressing upon the jury a general duty to confront crime. After review of the record, we find these claims to be without merit, both independently and cumulatively.
We review for substantial risk of a miscarriage of justice because the defendant did not object to the closing argument at trial. See Commonwealth v. Randolph, 438 Mass. 290, 293–294 (2002).
The defendant first claims that the prosecutor improperly vouched for Ms. Rosetti's testimony and was aware of facts beyond the evidence. “Improper vouching occurs if ‘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.’ “ Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting from Commonwealth v. Ortega, 491 Mass. 170, 181 (2004). Here, the prosecutor did neither. “When credibility is an issue before the jury, ‘it is certainly proper for counsel to argue from the evidence why a witness should be believed.’ “ Commonwealth v. Freeman, 430 Mass. 111, 119 (1999), quoting from Commonwealth v. Raymond, 424 Mass. 382, 391 (1997). This case hinges on credibility, and we find nothing in the prosecutor's summation that improperly bolsters the credibility of the Commonwealth's witnesses such that it rises to a substantial risk of a miscarriage of justice. See id. at 119–120. Likewise, the defendant has presented no evidence, and we find none in the record, to show the prosecutor had “knowledge independent of the evidence before the jury.”
We also reject the defendant's contention that the prosecutor shifted the burden onto the defendant through the use of rhetorical questions. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (“A prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses and disbelieve those testifying for the defendant”).
The defendant, relying on Commonwealth v. Ward, 28 Mass.App.Ct. 292 (1990), also claims that the prosecutor referred to the victimization of society and improperly urged the jury to return a guilty verdict for the purpose of confronting crime. Reliance on Ward, however, is misplaced. Ward reprinted the bulk of the Commonwealth's summation, and “[t]aken in the aggregate, the closing argument sounded a persistent theme that the jury had a duty to confront crime in the streets bravely and to avenge the wrong done the victim.” Id. at 294. In contrast, the closing argument here did not “play [ ] impermissibly on the jury's emotions and pander[ ] to their fears.” Id. at 295. Rather, in viewing the argument as a whole, see Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992), the prosecutor did not engage in impermissible advocacy during her closing argument. Thus, there was no substantial risk of a miscarriage of justice.
The judge's instructions also mitigated any potential mistakes during closing arguments. The judge informed the jury that the attorneys' arguments were not evidence.
Judge's questions. The defendant finally claims that the judge, in questioning several witnesses, crossed the line from neutral arbiter to advocate. We disagree. “A judge may properly participate in the questioning of a witness so long as the questioning is not partisan in nature.” Commonwealth v. Lucien, 440 Mass. 658, 664 (2004). Here, the defendant protests that that the judge questioned Ms. Rosetti after an effective cross-examination and improperly bolstered her credibility by eliciting testimony that Mr. Brown blocked her view only for “a couple of seconds.” The judge asked these questions solely to clarify the issues and timeline for the jury, and he did not manifest bias in doing so. See Commonwealth v. Dias, 373 Mass. 412, 416–417 (1977). “[A] judge may properly question a witness, even where to do so may strengthen the Commonwealth's case, so long as the examination is not partisan in nature, biased, or a display of belief in the defendant's guilt.” Id. at 416. Thus, there was no prejudicial error, let alone a substantial risk of a miscarriage of justice.
Nor did the judge commit error when he questioned the defendant on how she could see what Ms. Rosetti was doing during the alleged assault by Mr. Brown. Again, this served to clarify the testimony for the jurors and did not drift into partisanship or bias. See ibid. Accordingly, there was no substantial risk of miscarriage of justice due to the judge's questioning of the defendant.
The judge also mitigated any potential indiscretions with his instructions. “Please do not consider anything I have said or done during the trial as any indication of my opinion as to how you should decide the defendant's guilt or innocence. If you believe that I have expressed or hinted at any opinion about the facts of this case, please disregard it. I have no opinion about the facts or what your verdict ought to be. That is solely and exclusively your duty and responsibility.”
Judgment affirmed.