Opinion
13-P-1581
03-13-2015
COMMONWEALTH v. JESUS MENDOZA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jesus Mendoza, appeals from his two convictions of assault and battery (one as a lesser included offense of assault by means of a dangerous weapon). He contends that the prosecutor's opening statement and closing argument were improper, and that the errors created a substantial risk of a miscarriage of justice. We affirm.
The defendant did not object to the opening statement or the closing argument at trial. We therefore review for error, and if there was error, for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
Discussion. 1. Opening statement. The defendant maintains that the prosecutor's opening statement, because narrative in style, vouched for the evidence, and appealed improperly to the jurors' sympathy and emotion. The opening statement "must be judged in light of the entire statement, the judge's instructions to the jury, and the evidence actually introduced at trial." Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 869 (2007) (quotations omitted).
Immediately before the opening statements the judge told the jury, "[W]hat the lawyers say is not evidence." He also described the opening statement as "[s]ort of a preview . . . of what counsel hope the evidence will show." The prosecutor then began her opening statement by stating, "Go ahead and scream, Bitch. Nobody here likes you. Nobody is going to call the police anyway. You're going to die, Bitch. You're going to feel the pain that I feel. You're going to die slow." The prosecutor continued to recount the anticipated facts of the case without explicitly stating that the Commonwealth intended to prove the facts described. At the end of the opening statement, however, she said, "Throughout the next couple of days the Commonwealth through witnesses is going to bring you back to those early morning hours of October 7th, 2010. And through those witnesses we will prove to you . . . that the defendant assaulted and battered [the complainant]." At the conclusion of both opening statements, the judge again instructed the jury that opening statements are not evidence.
"The proper function of an opening [statement] is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence." Commonwealth v. Sylvia, 456 Mass. 182, 188 (2010) (quotations omitted). A narrative style is permitted if the prosecutor states in good faith what she reasonably believes she can prove and it is clear to the jury that the narrative is predictive of what will be established by evidence. Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 51 (2003).
This opening statement, while dramatic, outlined facts -- and only facts -- all of which were subsequently borne out by the evidence. The "prosecutor [did] not express a personal opinion as to the credibility of a witness or assert personal knowledge of the facts in issue." Ibid. (quotation omitted). Compare Commonwealth v. Trigones, 397 Mass. 633, 642 (1986). While the better practice may have been for the prosecutor to state at the outset that she was reciting what the evidence would show, there was no error; all of the representations ultimately were supported by the evidence, and the prosecutor's final remarks contained the appropriate reference to the anticipated evidence at trial. Furthermore, the judge instructed the jury, both before and after the opening statement, and again in his final instructions, that opening statements are not evidence. See Commonwealth v. Morgan, 449 Mass. 343, 362 (2007). "Any possible prejudice was cured by the judge's [introductory remarks and repeated] instruction that opening statements are not evidence." Commonwealth v. Deloney, 59 Mass. App. Ct. at 51, citing Commonwealth v. Simpson, 434 Mass. 570, 584 (2001). The fact that the jury acquitted the defendant of some charges shows that they properly heeded the judge's instruction. Commonwealth v. Kozec, 399 Mass. 514, 517 (1987).
2. Closing argument. The defendant contends that the prosecutor overstepped the bounds of permissible advocacy by presenting a closing argument that inflamed the passions and appealed to the sympathies of the jury. A prosecutor may "argue forcefully for the defendant's conviction." Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). The argument was based on the evidence and the inferences drawn therefrom. See Commonwealth v. Lao, 460 Mass. 12, 21-22 (2011); Commonwealth v. Carriere, 470 Mass. 1, 19 (2014). To the extent that the closing was dramatic, this is because the facts of the case were dramatic. See Commonwealth v. Seng, 436 Mass. 537, 555, cert. denied, 537 U.S. 942 (2002) ("There is a distinction between a dramatic description in an argument and an argument designed to appeal to the jury's emotions"). The closing did not stray from the facts, and was not improper.
Judgments affirmed.
By the Court (Kafker, Wolohojian, Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 13, 2015.