Opinion
No. 11–P–1552.
2013-08-29
COMMONWEALTH v. Gary SMITH.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of (1) two counts of rape of a child, G.L. c. 265, § 23A; and (2) two counts of indecent assault and battery upon a child, G.L. c. 265, § 13B. The defendant appeals upon the grounds that (1) the judge abused her discretion by refusing to exclude two members of the venire for cause so as to cause the defendant to exhaust his peremptory challenges and to leave him unable to exclude an allegedly biased subsequent juror, and (2) the prosecutor's closing argument caused improper prejudice requiring a new trial. For the following reasons, we affirm the judgments.
Background. The evidence at trial permitted the jury to find the following facts. In 2000, the victim was eight years old. With three children, her mother moved from their former home on Cape Cod to the home of the defendant, the mother's stepbrother, in the town of Acushnet. The mother and her three children lived with the stepbrother, his wife, and his child for approximately seventeen months, from February of 2000 into June of 2001. During that span, the defendant committed the offenses upon the victim in the house. At the close of that period, the victim, her two siblings, and her mother moved to Maine. Almost eight years later, at an extended family Christmas party in December of 2008, the victim encountered the defendant. She was then sixteen years old. The defendant acted evasively toward her at the party. She recalled the earlier events, became emotionally troubled, and for the first time soon afterwards told her mother about them. The charges resulted.
Empanelment. During sidebar questioning, juror 88 initially answered the judge's questions with some hesitation and mild confusion. Upon further inquiry, however, the juror indicated that he could be impartial and the judge ruled him indifferent. As juror 88 was about to be seated, the judge asked him about a response in his questionnaire about his impartiality. He responded that he had initially written something down but crossed it out because he felt he could be impartial. The judge denied defense counsel's request to inquire further. Defense counsel did not formally challenge the juror for cause but later used one of her peremptory challenges to exclude juror 88.
In sidebar questioning of juror 116, the judge asked him whether he would “automatically” believe a child complainant. The juror responded, “Not to an extent, no.” When asked what he meant by this, the juror stated, “It's not something that somebody usually makes up anyway.” Upon further inquiry, however, the juror stated and affirmed that his answer to the initial question was no, that he would not automatically believe a child complainant. Defense counsel requested that the juror be excused for cause, and proposed that the judge's manner of questioning may have put pressure on the juror to answer that he was not predisposed to believing a child complainant. The judge denied the request, and stated that she had not put pressure on the juror. Defense counsel later used a peremptory challenge to exclude juror 116.
During sidebar questioning of juror 156, the juror revealed a family connection to victims of sexual assault. The judge subsequently declared the juror indifferent. At this point, defense counsel had exhausted all of the defendant's fourteen peremptory challenges. Defense counsel asked the judge for an additional challenge but the judge denied the request. Juror 156 was seated and deliberated at the conclusion of trial.
Closing argument. During closing argument, the prosecutor urged the jurors to find that, at the Christmas gathering in 2008, the defendant had acted guardedly or remotely toward the victim because he was experiencing feelings of consciousness of guilt. Defense counsel did not object to these statements.
Discussion. 1. Jury empanelment. The standard of review of a judge's decision upon the impartiality of a prospective juror is abuse of discretion. Commonwealth v. Ruell, 459 Mass. 126, 136 (2011). That standard is very rigorous. An appellant asserting it “assumes a heavy burden ... [and must establish] that no conscientious judge, acting intelligently, could honestly have taken the view expressed by [the trial judge].” Commonwealth v. Bys, 370 Mass. 350, 361 (1976). Mazzoleni v. Cotton, 33 Mass.App.Ct. 147, 152–153 (1992). In the empanelment process, “[w]here ... a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, we will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.” Commonwealth v. Seabrooks, 433 Mass. 439, 443 (2001). We conclude that the judge did not abuse her discretion by refusal to exclude either juror 88, 116, or 156.
(a) Juror 88. As an initial matter, defense counsel never moved to excuse juror 88 for cause. “Where a defendant fails to challenge a juror for cause, the questions of the impartiality of that juror and the adequacy of voir dire are waived.” Commonwealth v. McCoy, 456 Mass. 838, 842 (2010). Nonetheless, even if defense counsel had challenged for cause, we are satisfied that the judge did not abuse her discretion. While the juror initially expressed concerns about his impartiality because he was from the same town as the defendant and knew two priests accused of child molestation, the judge explored these concerns and the juror eventually stated that he could be impartial. Similarly, when the judge asked the juror about his questionnaire, he responded that he had crossed out what he initially wrote because he believed he could be impartial. The judge, who had an opportunity to assess the juror's demeanor and credibility from just a few feet away, was entitled to accept the juror's claims of impartiality. See Commonwealth v. Seabrooks, supra at 443–444 (“We defer to the judge's conclusion not to excuse this juror, because he had the opportunity to observe her demeanor while he questioned her at some length, and because her answers to his probing questions allayed any concerns he might have had”); Commonwealth v. Bryant, 447 Mass. 494, 500 (2006) (citations omitted) (“A judge may accept each juror's representation of impartiality unless there is ‘solid evidence of a distinct bias.’ In such determinations, we generally ‘defer to the judge, who benefits from the live testimony of the juror’ ”). This is not a case where the judge's inquiry avoided the very issue of impartiality. Cf. Commonwealth v. Auguste, 414 Mass. 51, 57–58 (1992).
(b) Juror 116. While juror 116's initial responses to the judge's questions concerning his predisposition to believe a child complainant did raise concerns, those concerns abated with the judge's subsequent questioning and the juror's ultimate unequivocal responses that he could be impartial. See Commonwealth v. Seabrooks, supra. In this respect, the defendant's reliance on Commonwealth v. Vann Long, 419 Mass. 798 (1995), and Commonwealth v. Clark, 446 Mass. 620 (2006), is misplaced. In both cases, the court emphasized that the juror never unequivocally stated that he or she could be impartial. See Commonwealth v. Vann Long, supra at 804 (“The only way I can answer that, your Honor, is that I would really hope that I could be”); Commonwealth v. Clark, supra at 630 (juror's answer that whether her views about African–Americans would affect her impartiality “would depend on the person's circumstances” was ambiguous and required further questioning). In this case, in contrast, juror 116 unequivocally stated multiple times that his answer to the original question was, “No,” that he would not automatically believe a child complainant.
The judge was entitled to accept those claims of impartiality; and as we cannot match the judge's opportunity to assess the juror's credibility and demeanor, we defer to her judgment. See Commonwealth v. Seabrooks, 433 Mass. at 443–444;Commonwealth v. Bryant, supra at 500–501.
In his challenge for cause, defense counsel did suggest that the judge may have pressured juror 116 into responding that he would not automatically believe a child complainant. However, while the judge's questions may have been forceful, they reasonably attempted to ensure that the juror was genuine in stating that his answer to the initial question was, “No.” The judge's questioning fell far short of the coercive questioning held to be an abuse of discretion in Commonwealth v. Auguste, 414 Mass. at 53–56, 57–58, 61–65.
(c) Juror 156. The defendant's argument that the judge committed reversible error by forcing him to accept juror 156 is unavailing. The record reveals that defense counsel did not challenge the sitting of juror 156 for cause; instead he requested an additional peremptory challenge. On appeal, however, the defendant does not argue that the judge was required to grant him an additional peremptory challenge. His claim is that the judge's erroneous acceptance of jurors 88 and 116 caused the defendant to expend peremptory challenges which he otherwise would have retained as available to remove juror 156.
Because the judge did not abuse her discretion in refusing to exclude jurors 88 or 116 for cause, the defendant suffered no prejudice from the exhaustion of his peremptory challenges on those jurors and the resulting need to accept juror 156. See Commonwealth v. Seabrooks, supra at 445–446. Cf. Commonwealth v. Susi, 394 Mass. 784, 789 (1985). Similarly, even if we were to construe the defendant's argument to challenge the refusal of the judge to exercise her discretion to grant him an additional peremptory challenge, the defendant has made no showing that such an additional peremptory challenge was necessary for the achievement of an impartial jury. See Commonwealth v. Leahy, 445 Mass. 481, 499 (2005), citing Commonwealth v. Lattimore, 396 Mass. 446, 450 (1985); Commonwealth v. McCoy, 456 Mass. at 841.
Finally, with regard to juror 156, we have examined carefully the record of his sidebar colloquy with the judge, including his references to personal experiences. He represented that he could be impartial. Defense counsel expressed her doubts. If we view defense counsel's skepticism as a challenge for cause, we nonetheless cannot conclude that the judge abused her discretion by acceptance of the juror. Juror 156 twice represented that he could be impartial. The judge, of course, was able to assess his demeanor and credibility throughout the colloquy. The judge acted within the limits of her discretion.
2. The prosecutor's closing argument. Because defense counsel did not object to the prosecutor's closing argument, our standard of review is “whether there was an error which created a substantial risk of a miscarriage of justice.” Commonwealth v. Sanchez, 405 Mass. 369, 375 (1989). In response to a claim of prejudicial closing argument by the prosecution, we examine the challenged statement in light of three factors: (1) the entire argument made by the prosecutor; (2) the judge's instructions to the jury; and (3) the over-all evidence at trial. See Commonwealth v. Payne, 426 Mass. 692, 697 (1998); Commonwealth v. Johnson, 429 Mass. 745, 749 (1999). A substantial risk arises if these factors leave the reviewing court with a sense of uncertainty of the fairness of the adjudication of guilt. See Commonwealth v. Molle, 56 Mass.App.Ct. 621, 629 (2002).
We conclude that the prosecutor's comments regarding the defendant's behavior during the Christmas party did not create error resulting in a substantial risk of miscarriage of justice. The comments had a basis in the evidence. The victim testified to the defendant's withdrawn behavior during the party, as did the victim's mother. The attribution of that behavior to feelings of consciousness of guilt was a proposal of a permissible inference during closing argument. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (noting that prosecutors may argue “forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence”). See also Commonwealth v.. Horsman, 47 Mass.App.Ct. 262, 265–266 (1999) (not improper for the prosecutor to argue that flight from the scene of the crime evidenced consciousness of guilt).
The prosecutor also qualified her statements with the phrase “I would suggest to you.” When viewed in context, the statements cannot be seen as improper vouching by the prosecutor. See Commonwealth v. Silva, 401 Mass. 318, 329 (1987) (phrases “I submit” and “I suggest” not improper testimonial interpretation but permissible rhetorical device to urge jury to draw inferences from the evidence); Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999) (“use of the phrases ‘I think’ and ‘I suggest’ to preface some remarks did not, viewed in their proper context, imply that the prosecutor had personal knowledge or was stating a personal belief”).
In addition, the statements were brief and played a minor role in the argument as a whole, which focused on crediting the testimony of the victim over that of the defendant. As a result, even if the statements were improper, they did not affect the jury's decision. See Commonwealth v. Burgos, 462 Mass. 53, 72 & n. 24, cert. denied, 133 S.Ct. 796 (2012). Cf. Commonwealth v. Lewis, 465 Mass. 119, 130–133 (2013) (holding that the defendant was entitled to a new trial where during closing argument the prosecutor repeatedly referred to the defendant as a “street thug,” referred to the “entire defense” as a “sham,” and accused defense counsel of aiding in the presentation of lies). The fact that defense counsel did not object to the statements at trial, while not dispositive, also suggests that the statements were not unfairly prejudicial. See Commonwealth v. Sanchez, 405 Mass. at 375.
Further, defense counsel also drew inferences about the defendant's behavior at the Christmas party in his own closing argument; he suggested that the withdrawn behavior was simply a matter of defendant's usual temperament. See Commonwealth v. Kozec, supra at 519 n. 9 (citations omitted) (“a prosecutor may properly comment to correct ‘an erroneous impression created by opposing counsel’ ”). See also Commonwealth v. Bradshaw, 385 Mass. 244, 277 (1982), quoting from Commonwealth v. Daigle, 379 Mass. 541, 549 (1980) (“No substantial risk of a miscarriage of justice is created where ‘conflicting statements of opposing counsel, however inappropriate, probably served only to neutralize each other’ ”).
Finally, the judge's instructions kept closing argument in its proper place. She reminded the jury that the attorneys' closing arguments were not evidence and that the jury's decision must rest exclusively upon the evidence. See Commonwealth v. Payne, 426 Mass. at 697;Commonwealth v. Mitchell, 428 Mass. at 857–858;Commonwealth v. Johnson, 429 Mass. at 749.
Judgments affirmed.