Opinion
15-P-1392
03-03-2017
COMMONWEALTH v. John TAPLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of indecent assault and battery on a person fourteen or older, G. L. c. 265, § 13H. On appeal, he raises two interrelated claims, asserting that the prosecutor's reference in closing argument to Bernie Madoff was inflammatory and not based on the evidence, and that the trial judge abused his discretion in denying the resulting motion for mistrial. We affirm.
Background . The defendant was indicted on three counts of rape of a child and two counts of indecent assault and battery on a person fourteen years or older. A trial on four of the counts took place in April, 2011 and ended in a mistrial due to jury deadlock. The second trial on three of the counts took place in September, 2014. The defendant was found not guilty of the two counts of rape of a child and guilty of indecent assault and battery on a person fourteen years or older.
One charge of indecent assault and battery was nolle prossed by the Commonwealth before the first trial and one count of rape of a child was nolle prossed before the second trial.
The defendant did not testify; however, two of his witnesses testified that the defendant had an excellent reputation for the care of children. During the closing arguments defense counsel emphasized the reputation testimony to the jury and argued it should be given "great weight" in their deliberations. In addressing the reputation evidence in her closing, the prosecutor stated: "Bernie Madoff, B.P.—... they had sterling reputations." The defendant objected to the Madoff reference in the prosecutor's closing argument and moved for a mistrial. The judge denied the request for mistrial.
On appeal, as at trial, the defendant presents no argument as to the prosecutor's reference to "B.P."
Discussion . 1. Prosecutor's closing argument . The defendant contends that the prosecutor's reference to Bernie Madoff in her closing argument coupled with the lack of a curative instruction by the judge constitutes prejudicial error requiring a reversal of his conviction. Because the defendant preserved the issue on appeal with a timely objection, we review for prejudicial error. See Commonwealth v. Kelly , 470 Mass. 682, 687 (2015). This requires a two-part analysis: (1) whether there was error; and (2) if so, whether that error was prejudicial. Id . at 688. "We will not find prejudice where an error ‘did not influence the jury, or had but very slight effect.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, [then] it is impossible to conclude that substantial rights were not affected.’ " Commonwealth v. Allen , 474 Mass. 162, 168 (2016), quoting from Commonwealth v. Kelly , 470 Mass. 682, 688 (2015).
"In determining whether an argument was improper, we examine the remarks ‘in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.’ Commonwealth v. Gaynor , 443 Mass. 245, 273 (2005), quoting Commonwealth v. Viriyahiranpaiboon , 412 Mass. 224, 231 (1992)." Commonwealth v. Miller , 457 Mass. 69, 79 (2010). Here we find no error in the prosecutor's use of the Madoff reference. It was a brief comment made during the early part of the prosecutor's closing argument that was otherwise focused on the evidence. The reference was a clear response to the defense attorney's emphasis on reputation evidence during her closing argument. A prosecutor is "entitled to make a fair reply to the defendant's closing argument." Commonwealth v. Smith , 404 Mass. 1, 7 (1989). Taken with the judge's instruction to the jury that closing arguments by counsel are not evidence, we conclude that there was no error, let alone a prejudicial error.
"Reputation evidence is powerful, and you should give it great weight because sometimes that's all a man has is his good name."
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3. Denial of motion for mistrial . To the extent we do not address the defendant's other argument, relating to the denial of his motion for mistrial, it "ha[s] not been overlooked. [In light of our rulings,] [w]e find nothing in [that claim] that requires discussion." Department of Rev . v. Ryan R ., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
Judgment affirmed .