Opinion
No. 13–P–1639.
06-16-2016
COMMONWEALTH v. Ailton RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ailton Rodriguez, appeals from his convictions of assault and battery, in violation of G.L. c. 265, § 13A(a), and assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, § 15A(b). The defendant argues that his convictions should be reversed primarily for four reasons. First, the defendant maintains that the prosecutor's errors in his opening statement deprived him of his rights to due process and a fair trial. Second, the defendant argues that the prosecutor's closing statements deprived him of his rights to due process and a fair trial. Third, the defendant contends that the trial judge failed to ensure the jury were fair and impartial. Fourth, the defendant claims that the judge erred when she excluded evidence he proffered. We affirm.
The defendant argues that the prosecutor injected his personal beliefs in his opening statement and that this served to improperly bolster the victim's testimony.
In this regard, the defendant argues that the prosecutor improperly aligned himself with the jury, improperly vouched for the credibility of evidence, and improperly shifted the burden of proof.
Additionally, the defendant argues that the cumulative impact of all the alleged errors at trial deprived him of his constitutional rights to due process and a fair trial.
Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain details for our analysis of the issues raised on appeal. See Commonwealth v. Companonio, 445 Mass. 39, 42 (2005).
By the time of the incident, on April 30, 2011, the defendant had been dating the victim, Carla Goncalves, for approximately seven months. The defendant and Goncalves drove to Goncalves's aunt's house in Brockton to pick up pictures that Goncalves's mother had sent her. After they left the aunt's house, the defendant wanted to visit a friend who also resided in Brockton. When they arrived at the friend's residence, Goncalves waited in the vehicle and did not go inside with the defendant. The defendant was inside his friend's residence for about an hour. The defendant was angry with Goncalves when he returned to the vehicle and argued with her the entire ride home.
When the defendant and Goncalves returned to her residence, she went into her bedroom to change into her pajamas for bed. As she was undressing, the defendant came from behind her, grabbed her by the arm, and hit her with a belt in the buttocks five times. Goncalves tried to leave when the defendant went to the refrigerator to get a drink. The defendant saw Goncalves attempt to leave and grabbed her which caused the door to hit her in the stomach.
The next morning, Goncalves went to the police station with her sister, Angela Mendes, to file a report. At the police station, the police officers took pictures of Goncalves's injuries, two of which were entered into evidence.
Discussion. 1. Opening statement. The defendant challenges a portion of the prosecutor's opening statement, claiming that the prosecutor interjected his own personal belief that Goncalves's testimony was credible and that this served to improperly bolster her testimony before she testified. Because the defendant objected at trial, we review this claim for prejudicial error.
The part of the opening statement, which the defendant objected to at trial, was “then they get into another argument, because of the same incident, which is not abnormal for couples to argue and argue again,” and “Goncalves, of course, like anybody else would be—she's frantic, tries to leave.”
“The proper function of an opening 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.” Posell v. Herscovitz, 237 Mass. 513, 514 (1921). However, during an opening statement, a prosecutor “may not express a personal opinion as to the credibility of a witness or assert personal knowledge of the facts in issue.” Commonwealth v. Francis, 432 Mass. 353, 357 (2000).
The prosecutor's opening statement regarding Goncalves as “frantic and [trying] to leave” did not exceed permissible bounds. The scope of the prosecutor's statement was based on the evidence which he intended to introduce in evidence through Goncalves's testimony. See Commonwealth v. Fazio, 375 Mass. 451, 454–455 (1978). The prosecutor exceeded the permissible bounds of an opening statement when he stated that it “is not abnormal for couples to argue and argue again.” This statement was not based on evidence which he intended to introduce. However, this statement did not cause prejudicial error and the judge mitigated any potential prejudice by instructing the jury, before the opening, that opening statements are not evidence. Further, the Commonwealth's case was strong where there was victim testimony corroborated with police photographs that were entered in evidence. See Commonwealth v. Simpson, 434 Mass. 570, 584 (2001) (“However, the judge instructed immediately before the openings that the opening statements of counsel were not evidence. Given this instruction and the strength of the Commonwealth's evidence, we conclude that substantial rights were not affected”).
The judge stated, “[O]pening statements will give you a bit of a roadmap as to what they believed the evidence will show when they—when they do present their—their case. Those opening statements are not evidence.”
2. Closing statement. The defendant cites several instances of alleged prosecutorial misconduct during summation. We will address each of them in turn. However, because they were not objected to at trial, we will review the prosecutor's remarks to determine error and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Zavala, 52 Mass.App.Ct. 770, 776 (2001). “In analyzing a claim of improper argument, ‘the prosecutor's remarks must be viewed in light of the entire argument, as well as in light of the judge's instruction to the jury.’ “ Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990), quoting from Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). “[T]he critical question is whether the closing argument invited or compelled the jury to reach some conclusion they may not otherwise have reached.” Commonwealth v. Dumais, 60 Mass.App.Ct. 70, 75 (2003).
a. Prosecutor aligning himself with the jury. The defendant argues that the prosecutor improperly aligned himself with the jury and improperly vouched for the credibility of the evidence by repeatedly using the word “we.” The defendant cites to appellate cases which have held that the repeated use of the word “we” was improper when considered in light of the substance of some of those statements and phrases conveyed. See Commonwealth v. Burts, 68 Mass.App.Ct. 684, 688–689 (2007). “The issue, however, does not turn on the presence or absence of the pronoun. Rather, it is what is being communicated that is key.” Commonwealth v. Jenkins, 458 Mass. 791, 797 (2011). In the context of the prosecutor's entire closing argument, his use of the word “we” was mostly benign and was used as a mechanism to review the evidence at trial and to aid the jury in assessing the evidence. Because there was no error here, it did not create a substantial risk of a miscarriage of justice.
We find one of the prosecutor's uses of the word “we” troubling but will discuss it in the defendant's challenge to the prosecutor's declaration that the jury had a duty to convict.
b. Burden shifting. The defendant contends that the prosecutor shifted the burden in his summation by commenting on the defendant's failure to contradict the Commonwealth's case and accusing the defendant of “cooking up” a defense. At no point, however, during summation did the prosecutor assert that the defendant had the burden of proof on any issue, or the burden of disproving any elements of the charged crimes. The prosecutor was entitled to reply to the defendant's closing argument, which argued that Goncalves concocted the charges against the defendant because she was jealous of his ongoing relationship with the mother of his child and which urged the jury to focus on the defense witnesses in an attempt to show a motive for Goncalves to lie. See Commonwealth v. Smith, 404 Mass. 1, 7 (1989) (“[P]rosecutor is entitled to make a fair reply to the defendant's closing argument”). See also Commonwealth v. Cohen, 412 Mass. 375, 388 (1992) (“It is ... not improper for a prosecutor to comment on a defendant's attempt to confuse or distract the jury by diverting their attention from the strong evidence of the defendant's guilt”). Moreover, the judge's instructions on the burden of proof were clear. When “[t]he judge's instructions were clear, ... we must presume the jury followed them.” Commonwealth v. Helfant, 398 Mass. 214, 228 (1986). Accordingly, there was no error and no substantial risk of a miscarriage of justice.
The judge's instructions, in relevant part, stated, “This burden of proof never shifts. The [d]efendant is not required to call any witnesses or produce any evidence, since he is presumed to be innocent.” And also, “I've told you that every person is presumed innocent until he is proven guilty and that the burden of proof is on the prosecutor.”
c. Duty to convict. The defendant claims that the prosecutor improperly told the jury, twice, that they had a duty to convict. “It is improper for a prosecutor to equate a guilty verdict with justice.” Commonwealth v. Francis, 450 Mass. 132, 140 (2007). See Commonwealth v. Degro, 432 Mass. 319, 328–329 (2000) (appeal to jury to “do your job,” without explicitly stating “job” required reaching guilty verdict, was “not permissible advocacy”); Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 53 (2003) (prosecutor's statement, “Now is the time for justice. Find him guilty,” during closing created risk that jury might consider they had duty to convict).
The two challenged portions of the prosecutor's summation are, “the evidence has proved beyond a reasonable doubt, it compels you to find the [d]efendant, Mr. Rodriguez, guilty of assault and battery on Ms. Goncalves,” and “[w]hen you find those two facts happened based on the evidence that you heard, we have no choice but to find the defendant guilty of the charge.” We find no error with the first challenged portion.
Here, the prosecutor improperly aligned himself with the jury, and improperly told the jury they had a duty to convict by stating, “when you find those two facts happened based on the evidence that you heard, we have no choice but to find the defendant guilty of the charge.” This inartful assertion went beyond the line of fair and proper argument and was not merely “enthusiastic rhetoric, strong advocacy, and excusable hyperbole.” Commonwealth v. Sanna, 424 Mass. 92, 107 (1997).
This remark was the single isolated error in the closing argument; the defendant's counsel did not lodge an objection; the error did not rise to the level of a substantial risk of a miscarriage of justice. See Commonwealth v. Mitchell, 428 Mass. 852, 856–857 (1999). See also Commonwealth v. Lyons, 426 Mass. 466, 471 (1998) (“Although not dispositive, we consider the fact that the defendant did not object to the statements at trial as some indication that the tone and manner ... of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial”). The judge's final instruction to the jury that stated they were the sole judges of the credibility of the witnesses; that they served as the sole and exclusive judges of fact; and that they must consider whether the Commonwealth proved its case against the defendant based solely on the testimony of the witnesses and the exhibits, alleviated the risk of unfair prejudice from the improper statement. See Commonwealth v. Helfant, 398 Mass. at 228–229.
We do find it necessary to comment on the judge's failure to instruct the jury with the standard instructions that state closing arguments are not evidence. Although the judge erred in not doing so, in light of the prosecutor's misstatements, this error does not raise to a substantial risk of a miscarriage of justice. If, however, the prosecutor's summation included discussion of facts not in evidence, instead of improperly aligning himself with the jury and telling the jury they had a duty to convict, the judge's failure would likely have required reversal.
3. Right to an impartial jury. The defendant maintains that he was denied his right to an impartial jury when the judge asked juror number ten if she raised her card during the initial questioning of the venire, but then failed to inquire why she raised her card at her individual voir dire. “[General Laws c. 234, § 28,] directs ... that the trial judge shall examine a prospective juror for the purpose of uncovering (1) any interest the juror may have in the case, (2) any opinion he may already have formed about the case, (3) any relation between the prospective juror and any party to the case, and (4) any sensitivity to a bias or prejudice concerning the case.” Commonwealth v. Nickerson, 388 Mass. 246, 248 (1983).
The judge asked the juror if she raised her card during the initial questioning, and she responded, “Yes, I did.” The judge then proceeded to ask her about her experience with the court system as well as if she had any biases she might have about the instant action. Both the prosecutor and the defense attorney were afforded an opportunity to pose further questions and declined to do so. The judge then determined that juror number ten was impartial.
The judge did not abuse her discretion in finding juror number ten impartial because “the right to challenge a particular juror is conclusively waived if no objection is made at the time the jury are empaneled and if the basis of the objection is known or might have been known or discovered by reasonable diligence, or if the party is otherwise chargeable with knowledge of the ground of the objection.” Commonwealth v. Zakas, 358 Mass. 265, 268 (1970). “This is not a case where reversal is required without a showing of prejudice because of the erroneous denial or disallowance of challenges to jurors with the result that a defendant's peremptory challenges are exhausted or diminished.” Commonwealth v. Fudge, 20 Mass.App.Ct. 382, 389 (1985). Furthermore, the defendant has failed to show how he has been prejudiced by the judge seating juror number ten.
4. Excluded evidence. The defendant contends that the judge abused her discretion when she refused to admit evidence that the defendant purported showed Goncalves's bias and motive, as well as bore on her credibility. This proffered evidence was a police report that Goncalves filed against the defendant's sister for threatening text messages, a month after the incident at issue. A clerk-magistrate, however, declined to issue a criminal complaint. The defendant filed a motion in limine to admit this evidence. Also, the defendant objected when the trial judge denied the motion as well as each time the judge sustained the Commonwealth's objection to counsel's attempt to elicit testimony regarding the clerk-magistrate's hearing.
The judge did not abuse her discretion when deciding not to admit the proffered evidence. See Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993) ( “Determining whether the evidence demonstrates bias ... falls within the discretion of the trial judge”). The judge correctly reasoned that this evidence was not relevant and was not probative of the victim's bias or motive to fabricate the charges against the defendant. See Commonwealth v. Chase, 372 Mass. 736, 747 (1977) (“Extrinsic evidence on a collateral matter may be introduced at trial for the purposes of impeachment only in the discretion of the judge”).
Additionally, using this proffered evidence against Goncalves would be speculation. As the judge stated, “I don't have any indications of why the [m]agistrate did not issue the complaint and I'm not going to assume that it's because she was not credible. I don't have any other information about the situation.” See Commonwealth v. Quegan, 35 Mass.App.Ct. 129, 132–135 (1993) (“Any logical predicate or nexus for the relevance of the excluded evidence was thus conspicuously absent, beyond tenuous, speculative assertion”).
The defendant also argues that the judge abused her discretion when she ruled that the prosecutor did not open the door to the line of questioning about the clerk's hearing. However, this claim fails as defense counsel opened the door to this evidence and the Commonwealth was just reviewing it.
Judgments affirmed.