Opinion
No. 11–P–1631.
2012-11-26
COMMONWEALTH v. Jose RODRIGUEZ.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The sole issue raised in this appeal is the propriety of a statement made by the prosecutor in his closing argument. Viewing the statement in the context of the entire evidence offered at trial, we affirm.
Background. After a jury trial, the defendant was convicted of five counts of rape of a child and two counts of indecent assault and battery on a child under fourteen. At trial, two sisters, who lived with their mother and her boyfriend, the defendant, testified to a series of sexual assaults perpetrated by the defendant. Because the offenses were alleged to have occurred in 2005, but were not reported until 2009, there was no forensic evidence presented at the trial. Rather, the Commonwealth's case rested on the testimony of the two sisters' descriptions of the sexual assaults.
In his closing argument, defense counsel argued that the two sisters had fabricated their testimony. In his closing argument, the prosecutor stated, “Is there any evidence given to you or any conclusion that you can draw from the evidence that the two girls made this up?” Defense counsel objected to the statement, and the trial judge overruled the objection. The defendant argues that this language improperly shifted the burden of proof and, therefore, the convictions must be reversed. Discussion. “As a general rule, a ‘prosecutor ... cannot make statements that shift the burden of proof from the Commonwealth to the defendant.’ “ Commonwealth v. Johnson, 463 Mass. 95, 112 (2012), quoting from Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). The prosecutor may, however, “emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case.” Johnson, 463 Mass. at 113, quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990). Even were we inclined to construe the prosecutor's statement as a form of burden shifting, we perceive no prejudice.
The statement can be easily understood to have been the prosecutor's response to defense counsel's assertion that the sisters' testimony was fabricated.
The allegedly erroneous statement was just an isolated phrase in a single sentence, and the prosecutor appeared to register, and correct, any misstatement in mid-stream. Moreover, viewing the trial as a whole, see Johnson, 463 Mass. at 113–114, we are persuaded that the jury could not have understood that the defendant bore the burden of proof in any respect. Before the jury were selected, the trial judge explained the burden of proof and the fact that no person has to ever offer any evidence in his or her behalf. In his closing argument, defense counsel told the jury that the burden of proof is on the Commonwealth and that the defendant had no burden to prove his innocence. He again reminded the jury of the importance of the right against self-incrimination, thus dealing directly with the fact that the defendant chose not to present evidence. Finally, defense counsel emphasized that the burden of proof rests with the Commonwealth, and that they must honor the defendant's right against self-incrimination. In her jury instructions, the trial judge instructed the jury that closing arguments are not evidence. She also emphatically instructed the jury that the government has the burden of proof and that the defendant has no obligation to present evidence. We are persuaded, given the emphatic instructions, that the jury understood that the burden of proof remained with the Commonwealth throughout the trial and that the defendant had no obligation to present evidence.
Judgments affirmed.