See Commonwealth v. Jordan (No. 1), 397 Mass. 489, 491–492, 492 N.E.2d 349 (1986). See also Commonwealth v. Ormonde, 55 Mass.App.Ct. 231, 236–237, 770 N.E.2d 36 (2002). Given the crimes with which the defendant was charged and the relatively
September 6, 2002 Further appellate review denied: Reported below: 55 Mass. App. Ct. 231 (2002).
See Commonwealth v. Sheehan, 435 Mass. 183, 191 (2001), quoting Commonwealth v. Griffith, 45 Mass. App. Ct. 784, 787 (1998) ("Although ‘hyperbole in closing arguments is hardly rare, and juries should be given credit for the ability to filter out oratorical flourishes,’ there is no support in the evidence for labelling the defendant a ‘predator,’ and the remark was unwarranted"). See also Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 312 (2021), quoting Commonwealth v. Bois, 476 Mass. 15, 34 (2016) (even where labels used are supported by evidence, name-calling during closing "amounts to an improper appeal for sympathy that risks ‘obscur[ing] the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt’ "). Cf. Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 235 (2002) (prosecutor's argument permissible where "persistent description of [the defendant] as a ‘predator,’ who ‘lurked’ to pounce on his ‘prey,’ ... was not unrelated to the theory of the Commonwealth's case and the evidence that [the defendant] set a trap for [the victim]"). We are not, however, persuaded that the prosecutor's argument shifted the burden of proof from the Commonwealth to the defendant.
First, we agree with the defendant that it was improper for the prosecutor to characterize the defense's argument that the defendant was a robbery victim as "garbage." While prosecutors are free to encourage jurors not to believe a defendant, see Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 235 (2002), it is error to disparage the theory of defense. See Commonwealth v. Lewis, 81 Mass. App. Ct. 119, 123-124 (2012), S.C., 465 Mass. 119 (2013).
"The inferences that jurors may draw need not be inescapable; it is sufficient if they are reasonable in the sense of being rationally derived from the evidence." Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 234 (2002). Based upon the circumstantial evidence in this case, the inference that the defendant intended to rape the victim "was not only reasonable, it verges on the inescapable."
“Intent, of course, is a factor that a jury more often than not must find by making inferences.” Commonwealth v. Ormonde, 55 Mass.App.Ct. 231, 234 (2002). “A defendant seldom accommodates the finder of fact with a declaration that he intended to rape or kill.”