Opinion
15-P-1567
07-06-2017
COMMONWEALTH v. Saul SANTANA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Saul Santana, appeals from his convictions on two indictments for rape and abuse of a child aggravated by age difference, in violation of G. L. c. 265, § 23A(a ), and four indictments for indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. The defendant argues that he should be granted a new trial because of prosecutorial error during closing argument and the absence of a specific unanimity instruction by the judge. We affirm.
The defendant was found not guilty on one indictment for rape and abuse of a child aggravated by age difference.
Background. When the victim was seven years old, her parents divorced. As a result of the divorce, the victim and her brother moved to Worcester, Massachusetts, with her mother to be closer to her mother's family. The victim frequently stayed with her grandmother during the week while her mother worked, and also occasionally stayed at the apartment owned by her grandfather, the defendant.
The victim testified that she would stay with the defendant for various amounts of time, ranging from one to five days per week.
Almost every night that the victim stayed with the defendant, over a two-year period, he "would want [the victim] to go to his bedroom." The defendant would block the door with an exercise "tricycle," instruct the victim to take her clothes off, and have her get into his bed. The defendant would climb on top of the victim and touch her in various ways. The defendant would kiss the victim on her mouth, put his hands on her genitals, and have her touch or put her mouth on his penis. In some instances, the defendant also touched the victim's "front private" and her "bottom" with his penis.
The victim repeatedly testified that she only knew euphemistic names for genitalia.
Discussion. 1. Closing argument. The defendant argues that there were several prosecutorial errors during closing argument. We disagree.
Since the defendant did not preserve these objections at trial, we review under the substantial risk of a miscarriage of justice standard. Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001).
When the credibility of a witness is at issue, counsel may argue from the evidence presented at trial as to why a witness should be believed. Commonwealth v. Raposa, 440 Mass. 684, 694-695 (2004). A prosecutor may do so by pointing to witness testimony "but ‘may not explicitly or implicitly vouch to the jury that he or she knows that the witness's testimony is true.’ " Id. at 696, quoting from Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989). Here, many of the prosecutor's statements that the defendant takes issue with were fair responses to the defendant's attack on the credibility of the Commonwealth's witnesses. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015). See also Commonwealth v. Shanley, 455 Mass. 752, 777 (2010). At no point did the prosecutor improperly "assert his ... personal opinion as to the credibility of a witness." Commonwealth v. Senior, 454 Mass. 12, 17 (2009) (quotation omitted).
Examples of such statements in the prosecutor's closing here include: "[The victim] comes in here, and she's asked to quantify the visits—‘Put a number on it....’ Is it shocking or surprising that this ten-year-old girl cannot put an exact number on when she was going over there, how many times it happened?"
The defendant also contends that the prosecutor used inappropriate rhetorical questions to shift the burden of proof onto the defendant. "[R]hetorical questions should not be used in closing argument where they could be perceived by the jury as shifting the Commonwealth's burden of proof to the defendant." Commonwealth v. Habarek, 402 Mass. 105, 111 (1988). However, despite the defendant's contentions, the prosecutor did not engage in improper burden shifting in this case. Instead, the prosecutor's statements were made as a direct response to the defense counsel's suggestions in her closing argument that the victim and the victim's mother had fabricated their testimony.
The complained of rhetorical questions made by the prosecutor include: "[Does the victim's grandmother's] testimony explain why this ten-year-old would just suddenly lie about what her grandfather was doing to her? Is that the reasonable explanation? I ask you to consider that: why would this girl lie about her grandfather abusing her that way? ... One of the things the judge is going to instruct you on to consider in assessing credibility is what's this witness's motive to lie? What does [the victim] get out of lying?"
The defendant further argues that the prosecutor used hyperbolic language to inflame the passions of the jury. The defendant contends that the prosecutor impermissibly appealed to the jurors' sympathy by expounding on the victim's embarrassment in testifying. However, the prosecutor's statements in this regard were properly grounded in evidence, as the victim acknowledged, while on the stand, that testifying at trial was embarrassing for her. We also reject the defendant's argument that the prosecutor's first statement in closing argument improperly appealed to the jury's sympathy. This statement amounted to no more than excusable rhetoric or hyperbole that does not constitute error. Nor does it create grounds for reversal. See Commonwealth v. Camacho, 472 Mass. 587, 607 (2015) ("enthusiastic rhetoric, strong advocacy, and excusable hyperbole are not grounds for reversal" [quotation omitted] ). See also Commonwealth v. Bregoli, 431 Mass. 265, 279 (2000) ("In the context of the entire argument, however, the jurors likely recognized this one comment as a rhetorical flourish, mitigating any harmful effect of the remark" [quotation omitted] ). Moreover, the defendant's failure to object to any of these statements made by the prosecutor "may also be an indication that the[se] remark[s] ‘sounded less exciting at trial than appellate counsel now would have [them] seem.’ " Ibid., quoting from Commonwealth v. Deveau, 34 Mass. App. Ct. 9, 14 (1993).
The prosecutor stated in closing argument:
"These are uncomfortable, embarrassing things, and she seemed embarrassed, uncomfortable. At one point she acknowledged to the defense ‘I know that the "private" has another name,’ but she wouldn't even say it. You know, she was too embarrassed to even say what it is—‘I don't say those things.’ Too embarrassed to talk about that thing."
The prosecutor stated, "When you think about it, probably a few feet, a door, an exercise bike—that's what separated [the victim] from her younger brother in the defendant's apartment, but it must have seemed like miles."
Furthermore, even assuming that any of these statements constituted error, there was no substantial risk of a miscarriage of justice present in this case. "[W]e examine the [prosecutor's] remarks in the context of the entire [closing] argument, and in light of the judge's instructions to the jury and the evidence [produced] at trial." Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005) (quotation omitted). Here, the judge instructed the jury on numerous occasions that closing argument does not constitute evidence. See Commonwealth v. Pope, 406 Mass. 581, 588 (1990) (jury presumed to follow judge's instructions).
At the beginning of the trial, the judge instructed the jury that "while what the lawyers say is important, it is not itself evidence, nor is it a substitute for evidence." The jury were then twice reminded by the judge, following the close of evidence and before closing argument, that statements by counsel were not to be considered evidence. In addition to the numerous, previous instructions, during the final jury charge, the judge again instructed the jury that closing arguments are not evidence.
We reject the defendant's argument that there is a substantial risk of a miscarriage of justice because the prosecutor suggested that the victim had no motive to lie. A prosecutor may not tell the jury that the victim has no reason to lie. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). However, in reviewing this statement in the context of the prosecutor's entire closing argument, the defendant's failure to object, and the judge's instructions to the jury, this single remark did not rise to the level of a substantial risk of a miscarriage of justice. See Commonwealth v. Miller, 457 Mass. 69, 79 (2010).
2. Specific unanimity charge. The defendant alleges that the judge erred in neglecting to give a specific unanimity charge to the jury. We disagree.
"[S]pecific unanimity instruction[s] indicate[ ] to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995) (quotation omitted). Here, the defendant did not request a specific unanimity instruction. See id. at 513-514. Since the defendant did not preserve this objection at trial, we review this issue for a substantial risk of a miscarriage of justice. Commonwealth v. Comtois, 399 Mass. 668, 676 (1987).
"In cases alleging continuous, ongoing sexual abuse of a young child ... information regarding specific dates and places of the criminal conduct is often impossible to ascertain, and selecting the number of incidents on which to charge a defendant is necessarily difficult." Commonwealth v. LaCaprucia, 429 Mass. 440, 446 (1999). Therefore, "the guarantee of due process does not require that the Commonwealth attempt the artificial task of identifying a specific instance of abuse as a basis for conviction." Commonwealth v. Kirkpatrick, 423 Mass. 436, 444, cert. denied, 519 U.S. 1015 (1996).
Here, the victim did not testify to discrete instances of when the defendant committed these unlawful acts of abuse. "She provided reasonably detailed descriptions of various distinguishable forms of abuse but otherwise spoke largely in generalities" of the abuse that occurred over a two-year period. Id. at 443. See Commonwealth v. Sanchez, 423 Mass. 591, 600 (1996) ( "Because, in a case of this kind, a jury are not offered a choice between discrete incidents of abuse to support a single charge, the risk of a lack of unanimity ... does not exist" [quotation omitted] ).
Moreover, where the defendant failed to request a specific unanimity instruction during trial and the judge repeatedly instructed the jury to consider each charge separately and that each charge was "based on separate and distinct conduct," it does not appear likely that the jury would have acted differently if such an instruction had been given. See Comtois, 399 Mass. at 676-677. Thus, the lack of instruction was not error, and therefore did not result in a substantial risk of a miscarriage of justice.
Indeed, the jury found the defendant not guilty of one of the three rape charges alleged against him.
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Judgments affirmed.