Opinion
11-P-1240
12-31-2012
COMMONWEALTH v. BERNARD LABROAD.
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
After a jury trial, the defendant was convicted of the crime of rape of a child. On appeal, he argues that the motion judge erred in denying his motion to compel psychiatric records in accordance with Mass.R.Crim.P. 17(a)(2), 378 Mass. 886 (1979); that a substantial risk of a miscarriage of justice arose from portions of the prosecutor's closing argument; and that defense counsel was ineffective because of his failure to object to the prosecutor's closing argument. We affirm.
1. Dwyer motion. The defendant contends that the motion judge abused her discretion in denying a request for any and all information relating to the alleged rape from Dr. Gorvin, the victim's psychologist. The victim sought treatment from Gorvin on October 12, 2005. During that visit, the victim told Gorvin that approximately twelve years ago, when she was ten or eleven years old, the defendant sexually abused her. According to Gorvin, she stated that while visiting the defendant's children at his house, the defendant inserted his fingers into her vagina. Gorvin contacted the Wakefield police department and related that information to an investigator. The defendant filed a motion, pursuant to Mass.R.Crim.P. 17(a)(2), to compel Gorvin to provide any and all information he had of the alleged rape. The defendant argued: (1) because over ten years had passed since the alleged incident, the victim's statements would be relevant to the 'victim's credibility, the veracity of her allegations and her ability to accurately recall the alleged assault'; (2) the records are not otherwise available; (3) 'the defendant may need to consult with experts or other witnesses regarding the significance of the requested records'; and (4) the request was 'clearly made in good faith and not part of a fishing expedition or as part of a discovery mechanism.' The motion was denied, as was a motion to reconsider. The motion judge reasoned that mere statements by the victim regarding the alleged assault did not, without more, meet the threshold requirements of Commonwealth v. Lampron, 441 Mass. 265, 269 (2004), and Commonwealth v. Dwyer, 448 Mass. 122, 141-142 (2006). For substantially the same reasons, we agree. See Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433, 437 n.10 (2007). There was therefore no abuse of discretion.
See Commonwealth v. Dwyer, 448 Mass. 122 (2006).
2. Closing argument. The defendant's claim that the prosecutor's closing argument gave rise to a substantial risk of a miscarriage of justice is without merit. Throughout the trial, and in his closing argument, defense counsel attempted to disparage the victim's credibility by pointing out inconsistencies in her testimony. Therefore, it was proper for the prosecutor to marshal the evidence in a manner favorable to the victim's credibility. See Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). In doing so, the prosecutor could appeal to the jury's common knowledge and experience, Commonwealth v. Ridge, 455 Mass. 307, 330 (2009), and argue reasonable inferences from the evidence. Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980).
We again emphasize that prosecutors should avoid rhetorical questions during closing argument. In light of the defendant's argument, however, we conclude that the comments were a fair attempt to bolster the victim's credibility. See Commonwealth v. Rogers, 43 Mass. App. Ct. 782, 785-786 (1997).
The prosecutor's closing argument contained the following statements: 'You're ten years old, doing what that person says . . . . The defendant's got his fingers inside of me. Makes me feel like I'm going to pass gas, and I don't know what to do. . . . If there was some reason why you were going to do this, wouldn't you do it better? They're friends. They're roommates. Wouldn't you get the story straight? What does that suggest to you?'
--------
3. Assistance of counsel. Because the prosecutor's comments were permissible and based on evidence introduced at trial, defense '[c]ounsel [was] not required to make an objection which ha[d] no reasonable likelihood of success.' Commonwealth v. Houghton, 39 Mass. App. Ct. 94, 99-100 (1995), quoting from Commonwealth v. Achorn, 25 Mass. App. Ct. 247, 253 (1988).
Judgment affirmed.
By the Court (Cypher, Green & Carhart, JJ.),