Opinion
21-P-586
01-11-2023
COMMONWEALTH v. PEDRO MONTROND.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a jury trial in the Superior Court, the defendant was convicted of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. On appeal, he argues that he was deprived of his right to a fair trial by the judge's refusal to pose a question to the venire regarding bias in favor of child witnesses. He also claims error in the prosecutor's closing argument. We affirm.
The defendant also was charged with three counts of rape of a child, in violation of G. L. c. 265, § 13B. However, none of these charges resulted in a conviction. One count was dismissed prior to trial, the jury found the defendant not guilty on another count and did not reach a verdict on the third count.
Background.
We summarize the facts the jury could have found. The victim, whom we will call "Sally," frequently visited her grandparents at their home in Dorchester. The defendant, who was related to Sally's grandmother, lived in an apartment in the basement of the grandparents' house. He was friendly with Sally and her brother, and the three often played video games together. Sally's mother also was friendly with the defendant, and they sometimes smoked marijuana together.
Sally was about twelve years old when the defendant began to sexually abuse her. Sally testified that when she was alone in the basement apartment with the defendant, he told her that "if [she] were going to have a boyfriend [she] should know how to treat him" and then proceeded to pull down his pants. At that point, the defendant forced Sally to put her mouth on his penis and gave her "orders" about what she should be doing. The defendant then ejaculated into a towel. Two of the defendant's former girlfriends testified that the defendant cleaned himself with a towel after ejaculating during sexual intercourse. Sally also testified that on another occasion the defendant told her to lay on her stomach and tried to put his penis into her vagina.
At a certain point, Sally's mother learned that one of Sally's cousins had been abused by a third party, and she asked Sally whether she had also been abused. When Sally did not respond, the mother listed different family members, and eventually Sally identified both the other person and the defendant. Sally was then taken to the hospital where she underwent a physical examination.
The defendant testified at trial and denied the allegations. His defense centered on challenging Sally's credibility. In closing argument, defense counsel suggested that Sally had fabricated the allegations in response to her mother's suggestive questioning and highlighted various inconsistencies in Sally's testimony. The defense also focused on the absence of physical evidence of sexual abuse.
Discussion.
1. Jury voir dire.
The defendant argues that because Sally, the principal witness against him, was a child at the time the offenses allegedly occurred and was only sixteen years old at the time of trial, he was entitled to have prospective jurors questioned about their attitudes toward "child accusers." The judge twice declined to do so. Although the defendant objected to the judge's ruling, he did not pursue this line of questioning during individual voir dire. Nevertheless, he now asserts that the judge's failure to ask potential jurors about their views on child witnesses deprived him of a fair trial.
The defendant first requested that the judge ask the venire the following question: "Do you have a predisposition to believe child accusers[?]" The judge responded: "We're not asking that. I wouldn't permit it." The judge then noted: "[I]n this case, I don't know that a juror without some experience, as we all have in these kinds of cases, would have an idea whether they would automatically believe, tend to believe, tend to disbelieve. Who knows? I'm not permitting that question to be asked." Later on, the Commonwealth and the defendant together asked the judge whether she would consider asking the question: "Would you tend to believe a child witness simply because they're a child?" The judge again declined, stating: "No. I don't know that they have even thought about it. I'm not going to ask them that now."
The judge made it clear to the parties that she was not inclined to permit inquiry on the issue. Although the judge allowed "reasonable follow-up" to her questions of the venire during individual voir dire, it is evident that both the defendant and Commonwealth understood that questions regarding a prospective juror's bias in favor of child witnesses were not permitted. In any event, given our conclusion that the defendant's right to a fair trial was not violated, it does not matter that the issue was not pursued during individual voir dire.
"A criminal defendant is entitled to juror voir dire to identify fair and unbiased jurors as a part of the right to an impartial jury." Commonwealth v. Mason, 485 Mass. 520, 523 (2020), quoting Commonwealth v. Dabney, 478 Mass. 839, 848, cert, denied, 139 S.Ct. 127, 202 (2018) . However, the judge "need not put the specific questions proposed by the defendant" to the venire. Commonwealth v. Morales, 440 Mass. 536, 548 (2003), quoting Commonwealth v. Sanders, 383 Mass. 637, 641 (1981), and "[a] judge need not probe into every conceivable bias imagined by counsel." Commonwealth v. Espinal, 482 Mass. 190, 198 (2019). "Beyond those mandated by G. L. c. 234, § 28, questions to be asked during voir dire are within the broad discretion of the judge, except when there exists a substantial risk of extraneous issues that might influence the jury." Commonwealth v. Lopes, 440 Mass. 731, 736 (2004).
Here, although there was nothing improper about the question requested by the defendant, the judge did not abuse her discretion in refusing to ask it. The defendant has not shown that there was a substantial risk of bias either for or against a child witness that might influence the jury. In any event, even if there was a reason to suspect such a bias, the judge adequately questioned the prospective jurors regarding any potential bias or prejudice.
At the beginning of the jury selection process, the judge described the nature of the charges and informed the jury: "The Commonwealth alleges that . . . when [Sally] was between the ages of [eleven] and [twelve] years of age, that the defendant caused her to perform oral sex on him and penetrated her vagina with his penis and caused her to masturbate his penis." The judge then asked, among other questions, whether any prospective jurors had "any bias ... or prejudice of any kind with respect to this case," or whether they were "aware of any reason why [they] cannot or do not stand indifferent, impartial with respect to this case." Several jurors responded affirmatively and were questioned by the judge at sidebar. The judge ultimately excused each potential juror who indicated they could not be impartial.
Jury empanelment spanned two days. The judge posed the same questions to the venire on both days.
In sum, where, as here, the prospective jurors were made aware that the case involved a child victim and were given the opportunity to make any potential bias known to the judge, we discern no basis for concluding there was a substantial risk that a bias in favor of the victim influenced the jury. See Lopes, 440 Mass. at 731, 737-738 (in course of jury selection for trial of indictment for murder, judge did not commit reversible error by refusing to ask venire "whether they, or a family member, had ever been a victim of a violent crime," where venire was sufficiently advised as to nature of case and asked whether they were free from bias or prejudice). In addition, at the conclusion of jury selection, the judge implicitly found that the jury was impartial without any objections from either party. See Id. at 738 ("We give deference to the judge's determination that the chosen jurors were fair and impartial"). Lastly, we note that during her final instructions, the judge made clear that jurors were to determine the facts of the case without the influence of prejudice or bias.
2. Closing argument.
The defendant alleges four errors in the prosecutor's closing argument. He asserts that the prosecutor improperly vouched for the credibility of the victim, appealed to the jury's sympathy, misstated the evidence, and invited the jury to speculate regarding the motives of Sally's mother. The defendant objected to some of the prosecutor's comments but not others. Where the defendant objected, we review for prejudicial error. Commonwealth v. Garcia, 75 Mass.App.Ct. 901, 901 (2009). Where the defendant did not object, we review for a substantial risk of miscarriage of justice. Commonwealth v. Silvelo, 96 Mass.App.Ct. 85, 91 (2019). We begin with portions of the closing to which the defendant did not object.
"The substantial risk standard requires us to determine 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.'" Silvelo, 96 Mass.App.Ct. at 91, quoting Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). Bearing in mind that statements made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury, see Commonwealth v. Cole, 473 Mass. 317, 333 (2016), we conclude there was no substantial risk of a miscarriage of justice.
a. Witness vouching.
In his closing, defense counsel emphasized the inconsistencies between Sally's testimony and her prior statements and suggested that her mother pressured her to fabricate the allegations. The prosecutor subsequently said in closing that "[b]elieving [Sally] is enough. Believing [Sally] is proof beyond a reasonable doubt." Later, with respect to Sally's testimony, the prosecutor also said: "The only credible reason that [Sally] is saying that this happened is because she's telling the truth." The prosecutor also used the rhetorical device "I submit" a number of times, in statements such as, "I submit to you, she was credible" and "I submit to you she was a credible witness." The defendant contends that these comments amounted to improper vouching for Sally's credibility.
"A prosecutor may not vouch for the credibility of witnesses." Commonwealth v. Cooper, 100 Mass.App.Ct. 345, 356 (2021), quoting Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). However, "[a] prosecutor may comment on a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs" (quotation omitted). Cooper, supra, quoting Commonwealth v. Freeman, 430 Mass. Ill. 118-119 (1999) .
None of the challenged remarks exceeded the boundaries of proper argument. The first comment was an accurate statement of the law, see Commonwealth v. Gonzalez Santos, 100 Mass.App.Ct. 1, 3 (2021) ("[The victim's] testimony, which the jury found to be credible, was sufficient, standing alone, to support a finding beyond a reasonable doubt as to each of the convictions"), and was not a claim by the prosecutor that Sally should be believed, but rather that, if the jury believed her, they had sufficient evidence to convict the defendant. The remaining remarks likewise did not amount to improper argument. The use of the words "I submit" as a rhetorical device to urge the jury to draw inferences from the evidence favorable to the Commonwealth did not reflect the prosecutor's personal beliefs. See Commonwealth v. Silva, 401 Mass. 318, 329 (1987) (prosecutor's use of "I submit" and "I suggest" was proper). See also Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999) (prosecutor's use of "I suggest" did not constitute improper vouching) . The comment that Sally was "telling the truth," which effectively informed the jury that Sally had no motive to lie, while not artful, was a proper response to the defense counsel's argument challenging Sally's credibility. See Cooper, 100 Mass.App.Ct. at 356, quoting Commonwealth v. Helberg, 73 Mass.App.Ct. 175, 179 (2008) ("there is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie") .
b. Appeals to jury's sympathy.
The defendant also claims that the prosecutor improperly appealed to the jury's sympathy by emphasizing Sally's youth and inexperience in sexual matters. The prosecutor twice noted that Sally was "in middle school" or a "middle-schooler." The prosecutor also noted that given Sally's age, it was not surprising that she was "confused when she's being -- has to distinguish between her anatomy and describe which orifice this man penetrated while she was being raped from behind." First, we do not believe that the prosecutor impermissibly exploited Sally's youth by noting her age. Second, taken in context, the remarks about Sally's confusion regarding anatomy were a proper response to the defendant's argument that Sally was not credible because she initially said that the defendant had penetrated her anus and later said he had penetrated her vagina. To argue, as the prosecutor did here, that a twelve year old girl might not know the difference between being raped anally or vaginally, did not amount to an appeal for sympathy and, as a result, did not exceed the bounds of proper argument.
c. Misstatement of evidence.
The defendant asserts that the prosecutor misstated the evidence when she claimed that "every witness" told the jury about the towel used by the defendant after he engaged in sexual intercourse. While it is true that not every witness so testified, Sally and both witnesses who had sexual relations with the defendant testified that they had observed the towel. We therefore do not view the comment as a significant misstatement of the evidence. In any event, there was no dispute that the defendant used a towel to clean himself. Given these circumstances, there was no risk of a substantial miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 143 (2001) (jury generally able to sort out hyperbole).
d. Inviting the jury to speculate.
The defendant next contends that the prosecutor invited the jury to speculate about Sally's mother's motives when she argued that Sally's mother had no motive to "pin this" on the defendant and that, "if [the mother] had any motive to take someone down don't you think it would have been the man that she was already suspicious of?" Because the defendant objected to this statement at trial, we review for prejudicial error. These comments are proper responses to defense counsel's argument that Sally only accused the defendant as a result of her mother's suggestive questioning. In addition, the prosecutor could fairly argue, as she did, that the jury could infer from the evidence that Sally's mother had no bias against the defendant or motive to suggest that he was abusing Sally. Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982) ("In closing argument, prosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it" [quotation omitted]). Notably, the statements contested by the defendant immediately followed other statements regarding Sally's mother's friendship with the defendant: "[The defendant], her buddy in the basement. The man she hangs out with three to four times a week, who she plays video games with, smokes marijuana with, hangs out with, why would she pin this on him? Ladies and gentlemen, that makes no sense. "
In sum, we discern no error and even if we were to conclude otherwise, there was no risk of a miscarriage of justice or prejudice requiring a new trial. The judge instructed the jury, both before and after closing arguments, that the arguments were not evidence. Moreover, the jury acquitted the defendant and were deadlocked on the most serious charges. Generally, a split verdict demonstrates that a jury was able to sort out any excessive claims in the prosecutor's closing argument. See Grandison, 433 Mass. at 143. See also Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) ("A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed").
Judgment affirmed.
Green, C.J., Vuono & Brennan, JJ.
The panelists are listed in order of seniority.