Opinion
20-P-1231
12-01-2021
COMMONWEALTH v. John SIAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was found guilty of assault and battery on a pregnant victim. On appeal, the defendant argues: (1) the judge committed reversible error in failing to dismiss a juror for cause for her alleged inability to be impartial in a case involving alcohol use, (2) the prosecutor improperly vouched for the victim's credibility, and (3) where the Commonwealth failed to provide sufficient evidence that the defendant knew or should have known the victim was pregnant, his conviction of assault and battery on a pregnant victim must be reduced to simple assault and battery. We affirm.
The defendant was found not guilty of strangulation or suffocation of a pregnant victim. Also, the judge allowed the defendant's motion for a required finding of not guilty on a charge of intimidation of a witness.
1. Juror no. 20. The defendant claims that the judge erred by denying a for-cause challenge to juror no. 20, due to her alleged inability to be impartial due to her spouse's past alcohol abuse issues. We disagree.
The defendant also claims that the juror's "nonverbal cues," including certain pauses and the inflections in her voice, are relevant to demonstrate her inability to be impartial. However, the juror's demeanor and reactions to questions raise questions of fact, which were for the judge to evaluate. See Commonwealth v. Caldwell, 418 Mass. 777, 779 (1994).
"A person charged with a crime has a right under both the Massachusetts and United States Constitutions to be tried by an impartial jury." Commonwealth v. Rios, 96 Mass. App. Ct. 463, 468 (2019). "When a question of potential bias on the part of a prospective juror arises ..., the judge has a duty to make inquiry of the juror and determine whether the prospective juror can be fair and impartial and render a true and just verdict." Id.
Here, juror no. 20 initially stated she was unsure she could be impartial in the event the defendant's case involved evidence of alcohol use. After the judge made further inquiry into the juror's concerns, the juror revealed that her spouse was in recovery for alcohol abuse. When asked if her spouse's struggles with alcohol would affect her ability to be fair and impartial, the juror responded, "It's hard. I can -- It's hard." The judge reassured the juror that the court desires people of all "different types of backgrounds" to be a part of the jury selection process, and did not want to single out any one type of person, to which the juror responded it was hard for her to determine whether she could be impartial "[u]ntil the evidence is presented."
After the judge revealed that the case concerned domestic violence, the juror stated she had never been in such a situation, and could be impartial. The judge again inquired about whether the juror's background with her spouse's past alcohol abuse would affect her ability to be fair and impartial, along with the revelation that the case involved domestic violence, and the juror again responded it would not.
The juror specifically stated, "I think I could be ... impartial." The juror's use of equivocal language, such as "I think," is not determinative of her ability to be impartial. See Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 274 (2002).
"No human being is wholly free of the interests and preferences which are the product of [his or her] cultural, family, and community experience." Rios, 96 Mass. App. Ct. at 469 (quotation omitted). "Every prospective juror comes with his or her own thoughts, feelings, opinions, beliefs, and experiences that may, or may not, affect how he or she ‘looks’ at a case." Commonwealth v. Williams, 481 Mass. 443, 450-451 (2019). Accordingly, a judge may not outright dismiss a prospective juror, without an inquiry into her ability to be impartial, merely because she possesses such unique life experiences, opinions, and beliefs. See id. at 450, 453 (without inquiring into juror's ability to be fair and impartial, judge improperly excused prospective juror for cause merely for her belief that "the system is rigged against young African American males"). Instead, it is the duty of the judge to determine whether, in light of those beliefs and experiences, the prospective juror can still fairly evaluate the evidence and properly apply the law. See id. at 453. See also Commonwealth v. Bryant, 447 Mass. 494, 501 (2006) (prospective jurors must be able to "set aside their own opinions, weigh the evidence [excluding matters not properly before them], and follow the instructions of the judge" [quotation omitted]).
At bottom, we afford the judge great discretion in the jury selection process. Commonwealth v. Andrade, 468 Mass. 543, 547 (2014). A judge's "determination ... that a [juror is] impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous" (quotation omitted). Id. at 548. Here, where the judge made a thorough inquiry into the juror's potential inability to be impartial as a result of her spouse's past alcohol abuse, after which the juror responded multiple times that she believed she could in fact be fair and impartial, the judge properly denied the defendant's challenge for cause. See Rios, 96 Mass. App. Ct. at 467 (no error in failing to dismiss juror who stated on three separate occasions she would be fair and impartial "to the best of [her] ability" despite personal experiences of "being a mother of young kids" and having been "the victim of a violent crime").
2. The prosecutor's closing argument. The defendant also claims that he was prejudiced by the prosecutor's alleged vouching for the victim's credibility during closing arguments. In particular, the defendant claims that the prosecutor's remarks that the victim was "a mother of two," and testified "to the best of her ability" constituted prejudicial error. We disagree.
"While prosecutors are entitled to argue ‘forcefully for the defendant's conviction,’ closing arguments must be limited to facts in evidence and the fair inferences that may be drawn from those facts" (citation omitted). Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). Where the defendant timely objects to the prosecutor's closing argument, the issue is preserved. See Commonwealth v. Tate, 486 Mass. 663, 669 (2021). Where a defendant demonstrates that a prosecutor's closing argument is improper, we review under a prejudicial error standard to determine whether such error "did not influence the jury, or had but very slight effect" (quotation omitted). Id.
Here, during closing arguments, the prosecutor suggested to the jury that the victim's testimony was in fact credible, after which the prosecutor stated, "[The victim is] a mother of two. She sat up here today -- yesterday and spoke to you to the best of her ability, remembering what happened." This did not rise to the level of vouching. "Improper vouching occurs when ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury’ " (citation omitted). Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 189 (2009). The evidence presented to the jury clearly demonstrated that the victim was a mother of two children. Therefore, the prosecutor's first statement did not constitute vouching because such statement was undoubtedly not an indication that the prosecutor possessed knowledge independent of the evidence presented to the jury. See id. ("nothing in the prosecutor's statements suggested that he had information outside the record").
Moreover, like his statement concerning the victim being a mother of two, the prosecutor's statement that the witness testified to the best of her abilities also did not rise to the level of vouching, as such a statement did not imply that the prosecutor had "special knowledge by which [he could] verify the witness's testimony" (quotation omitted). Dancy, 75 Mass. App. Ct. at 189. During closing arguments, defense counsel framed the case as being one that would largely depend on credibility. Thereafter, defense counsel proceeded to attack the victim's credibility and highlight the inconsistencies in her testimony, including the inconsistencies in what she reported both to the police and the hospital, following the incident with the defendant. Where the defendant characterized the case as largely dependent on credibility, and then proceeded to attack the victim's credibility, the prosecutor's argument served as an entirely permissible response to defense counsel's effective attack. See Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 253 (2001) ("A prosecutor may fairly respond to an attack on the credibility of the Commonwealth's witnesses"). There was no error.
Nevertheless, even assuming the prosecutor's statements did rise to the level of vouching, the defendant suffered no prejudice. The judge specifically instructed the jury that "the closing arguments of the lawyers are not a substitute for the evidence." Moreover, the judge emphasized that it was for the jury to "decide what testimony to believe and how much weight to give that testimony" because the jury were "the sole judges of the credibility of the witnesses." Such instructions mitigate any potential prejudice to the defendant, as we presume the jury follows the judge's instructions. See Commonwealth v. Silva, 482 Mass. 275, 290 (2019). Also, the prosecutor's statements were isolated statements that did not infect the whole trial. See Commonwealth v. Salazar, 481 Mass. 105, 118 (2018). We are satisfied that the defendant suffered no prejudice, as any alleged error "did not influence the jury, or had but very slight effect" (quotation omitted). Tate, 486 Mass. at 669.
3. Sufficiency of the evidence. Finally, the defendant argues that there was insufficient evidence to show the defendant knew, or had reason to know, that the victim was pregnant. In this light, the defendant claims his conviction should be reduced to simple assault and battery. We disagree.
"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ... Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)." Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009). Sufficiency of the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson, supra at 324 n.16; Latimore, supra at 677-678. To sustain a conviction under G. L. c. 265, § 13A (b ) (ii), the Commonwealth must prove the defendant committed an assault and battery on a pregnant victim, while knowing or having reason to know that the victim is pregnant. See G. L. c. 265, § 13A (b ) (ii).
To prove an assault and battery, the Commonwealth must demonstrate the defendant committed: (1) an intentional, (2) touching of the victim, (3) of a harmful or offensive nature, and (4) without justification or excuse. Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 194 (2008). The defendant does not challenge whether the evidence was sufficient to support a simple assault and battery.
Here, the Commonwealth introduced medical records that explicitly noted the victim as being pregnant at the time of the assault. The victim also testified that on the date she was assaulted, she believed she was pregnant. Her menstrual period was two weeks late, which she testified as being "[a] pretty good indication, a big possibility" that she was in fact pregnant. Furthermore, the victim testified that she had undoubtedly discussed this possibility with the defendant, and after the defendant was arrested, he was asked by a police sergeant whether he knew the victim was six weeks pregnant, to which the defendant admitted that he suspected she was.
Where the Commonwealth's case relies upon circumstantial evidence, the jury's inferences drawn from such evidence need only be reasonable and possible, not necessary or inescapable. See Commonwealth v. Woods, 466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014). "Where conflicting inferences are possible from the evidence, ‘it is for the jury to determine where the truth lies’ " (citation omitted). Id. At bottom, when viewing the evidence in the light most favorable to the Commonwealth, particularly the defendant's own admission that he suspected that the victim was pregnant at the time he assaulted her, it was entirely rational for the jury to infer that the defendant knew, or at least had reason to know, that the victim was pregnant. See Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 257 (1999) (evidence need only be sufficient for jury's inferences to be "within reason and without speculation"). Therefore, the denial of the defendant's motion for a required finding of not guilty was proper. See Latimore, 378 Mass. at 677-678. Accordingly, the defendant is not entitled to any relief.
Judgment affirmed.