Opinion
No. 16–P–227.
10-19-2016
COMMONWEALTH v. Nathan D. WIESNER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Nathan D. Wiesner, appeals from his conviction by a District Court jury on March 4, 2015, of stalking in violation of G.L. c. 265, § 43(a ). The defendant argues for the first time on appeal that the prosecutor made improper comments during her closing argument. Accordingly, we limit our review to a determination whether the comments, if improper, posed a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). With respect to each challenge, “we consider the prosecutor's remarks in the context of [her] entire argument, the evidence at trial, and the judge's instructions to the jury.” Commonwealth v. Christian, 430 Mass. 552, 564 (2000).
The jury also found the defendant guilty of threatening to commit a crime in violation of G.L. c. 275, § 2. The trial judge dismissed that charge as a lesser included offense of stalking. But see Commonwealth v. Muckle, 90 Mass.App.Ct. 384, 394 (2016) (court concluded that threatening to commit crime is not lesser included offense of stalking).
Specifically, the defendant contends that the prosecutor advised the jury to negate an element of the stalking charge and misstated evidence that the victim knew the defendant was carrying a gun during the day of the crime.
In order to convict a person of stalking under G.L. c. 265, § 43, the Commonwealth must prove that the defendant “ ‘(1) willfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress, and (2) ma[de] a threat with the intent to place the person in imminent fear of death or bodily injury’; the conduct, acts, or threats may be accomplished by means of electronic communication.” Commonwealth v. Walters, 472 Mass. 680, 689 (2015), quoting from G.L. c. 265, § 43. The defendant argues that the prosecutor negated the reasonable person element of the crime of stalking when in closing she told the jury, “Never mind a reasonable person. You had [the victim] on the stand telling you, ‘I was afraid. I was really nervous.’ “
The prosecutor's remark about the victim's subjective fear during her closing argument was not error. The defendant essentially conceded that an objectively reasonable person would be disturbed by his conduct toward the victim. His primary argument was that the victim in this case would not have been alarmed because threats and insults were commonplace throughout her relationship with the defendant. The prosecutor did not argue that the jury should ignore an element of the offense, but, rather, argued that the jury should focus on the victim's testimony that she was actually scared when the defendant showed up at her workplace after threatening her numerous times through telephone calls and text messages, because that was the element of the crime that was most at issue.
Furthermore, “it is the judge who instructs the jury on the law, not counsel in argument.” Commonwealth v. Pagano, 47 Mass.App.Ct. 55, 63–64 (1999). After the closing arguments, the judge gave a lengthy jury instruction explaining that it was the jury's job to accept the law as stated by the judge, not the parties. The judge thoroughly explained each element of the crime, clarifying any confusion that the prosecutor may have created in her closing argument. We presume that the jury followed those instructions. See Commonwealth v. Amirault, 404 Mass. 221, 240 (1989).
The defendant also argues that the prosecutor misstated the evidence during her closing argument when she said the victim was scared because she knew the defendant was carrying a gun when he showed up at her workplace. “Prosecutors must limit the scope of their closing arguments to facts in evidence and the fair inferences that may be drawn therefrom.” Commonwealth v. Valentin, 474 Mass. 301, 309 (2016), quoting from Commonwealth v. Guy, 441 Mass. 96, 110 (2004).
During the defendant's closing argument, he stated that the victim knew he “[h]ad a gun all this time” and she still came out to the parking lot of her workplace to talk. It was central to his defense that the victim was not actually in fear of the defendant on the day of the crime. Moreover, the victim testified that she was scared because she knew the defendant always carried his gun. There also was evidence that the defendant stated he was going to kill the victim. The prosecutor's remark that the victim knew the defendant was carrying his gun was a fair argument grounded in the evidence. There was no error.
There was also testimony from Marlborough police Officer Christopher Leduc that he was dispatched to the victim's workplace because of a call stating there was a female being stalked by a male party and that he possibly had a handgun.