Opinion
14-P-1144
11-16-2015
COMMONWEALTH v. WILLIAM ASKWITH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, William Askwith, appeals from his conviction of indecent assault and battery on a child under fourteen. The defendant argues that the prosecutor's closing argument was improper and created a substantial risk of a miscarriage of justice.
The defendant was charged with aggravated statutory rape, however, the jury found that the Commonwealth only met its burden of proving the lesser included offense.
The prosecutor made the following remarks at the beginning of her closing argument:
"The animal show is not a show I love to watch, like the history channel, some other shows, but a couple months ago I watched the animal station. And it was regarding lions. And it showed how lions operated, particularly when they want to feed their young, and particularly the mother lion. And it shows how they would cuddle with them and play with them but there is also a time to eat. Common sense, we all have to eat. And it shows how the mother lion would go scowling [sic] an area looking for food for her cubs. And when she finds buffalo or some type of
animal, she doesn't immediately attack. She sits and she waits for that right moment, for that perfect opportunity.The closing was otherwise focused upon the evidence in the case and making arguments about credibility. However, the prosecutor did return to this analogy later when she stated, "It's all happening when dad is not around anywhere and the son is not babysitting. Wasn't that a great time to pounce? That's for you to decide. Was that a great time for the defendant to go in for the kill? Again, that's for you to decide."
"And in this particular case this female lion saw some buffalo. She scouted the area for a while. She would hide in the brush, hide behind trees, waiting, in this particular case, for a little buffalo to be separated from the pack. And when that opportunity presented itself, that mother lion went in for the kill. I ask that you remember that as I talk with you about this case and as I review the facts of this case."
These remarks were improper and were not a passing reference in the closing. Instead, it was the theme with which the prosecutor began her closing argument, urging the jury to consider the lion example as she discussed the evidence in the case. See Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002), quoting from Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984) ("In analyzing a claim of improper argument, the prosecutor's remarks must be viewed in light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial'"). The remarks consist of inappropriate hyperbole and were also an inappropriate appeal to the jury's sympathy and emotions. See Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987) ("[A] prosecutor should not . . . play . . . on the jury's sympathy or emotions"); Commonwealth v. Mosley, 6 Mass. App. Ct. 451, 452-453 (1978) (reference to defendant as "wild animal" in closing was an "[a]n epithet . . . [that] has been characterized as 'impermissible excess,'" [citations omitted]); Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 511 (2009) (inappropriate to state defendant was "[s]wooping down like a vulture"; "prosecutor should not use extreme epithets to characterize the defendant").
In addition to analogizing the defendant to a predatory animal, the prosecutor's reference to a "little buffalo [being] separated from the pack" could have encouraged the jury to think about the vulnerability of the victim.
Furthermore, even if this type of hyperbole were appropriate, which it is not, it had no basis in the evidence. See Commonwealth v. Rodriguez, supra ("Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence"). The evidence at trial was that the defendant had been assisting with babysitting the victim for two years. This was not the first time the defendant was alone with the victim.
We are further concerned that it was only at oral argument that the Commonwealth adjusted its position and acknowledged that inclusion of these remarks was improper.
"When a defendant raises a claim of error regarding a prosecutor's closing argument, we consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Arroyo, 442 Mass. 135, 147 (2004), quoting from Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). Here, the defendant did not object to the prosecutor's closing argument. As a result, "we review whether the prosecutor's argument created a substantial risk of a miscarriage of justice." Commonwealth v. Jones, 471 Mass. 138, 148 (2015).
We recognize that defense counsel did not object, which "may be viewed as 'some indication that the tone [and] manner . . . of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial.'" Commonwealth v. Carriere, 470 Mass. 1, 19 (2014), quoting from Commonwealth v. Mello, 420 Mass. 375, 380 (1995). We, however, do not consider the failure to object here as an indication that the remarks were not unfairly prejudicial. The remarks were clearly improper and the tone or the manner of presentation is irrelevant.
The evidence in this case was not overwhelming and the jury were ultimately charged with making a credibility determination between the defendant, who denied that he touched the victim inappropriately, and the victim, who asserted that he had. The jury heard the victim's testimony that she asked the defendant to come into her room because "there was thunder and lightning." The victim further testified that he came in and laid down on the bed next to her, put his hand on her hip, and then touched her private area under her clothes. She then testified that his finger went inside her private area, then she turned over and said, "Hmmph," and the defendant left the room shortly thereafter. The jury also saw a videotape of the defendant being interrogated, where he stated that the victim asked him to come into the room but denied that he touched her private area. As a result, the prosecutor's attempt to appeal to the jury's sympathy by analogizing the defendant to an animal stalking his prey did go to the heart of the case and the defense.
The testimony concerning penetration was diminished through cross-examination. Defense counsel elicited from the victim testimony that she had told her mother that the defendant penetrated her. The victim's mother, the first complaint witness, said that the victim did not tell her about the penetration the next day. The doctor, by whom the victim was examined the following day, also testified that the mother did not think there had been any penetration when the victim was brought in to be examined. There was also evidence that the victim had a scratch that could have been caused a number of different ways with one possibility being a sexual assault.
The judge provided appropriate instructions prior to the closing arguments that attorneys are not permitted to appeal to the jury's emotions or passions in their closing arguments, and that any such comments should be disregarded. In addition, in the final instructions the judge repeated that closing arguments are not evidence, and later in his instructions stated that "[e]motion or sympathy for one side or the other have no place in these proceedings." Because defense counsel did not object to the prosecutor's inappropriate hyperbole, the judge did not make a contemporaneous correction and did not include a specific instruction that the prosecutor's closing argument was inappropriate.
The instruction concerning closings, provided before the attorneys made their arguments, in totality was as follows:
"The final arguments of the attorneys is an important part of a trial. It's the final opportunity given to the attorneys to address you. It's an opportunity for the attorneys to summarize the evidence, to call your attention to certain parts of the evidence that they regard as important, and based upon the evidence, to try to persuade you to reach a certain result. However, what you are about to hear is not evidence. Attorneys are not witnesses. All the evidence in the case has been presented through the testimony of the witnesses and the exhibits, which you will have a chance to examine and consider during your deliberations.
"Our rules are designed to ensure that the parties receive a fair trial, and they, therefore, prohibit the attorneys from making certain types of argument in an effort to persuade you to reach a certain result or to favor or discredit either party. For example, the attorneys are not permitted to refer to facts that are not in evidence in the case. If based upon your memory and understanding of the evidence an attorney does this, you should disregard any such comment.
"The attorneys are not permitted to express their personal belief in the credibility or lack of credibility of any witness who testified in the case. That determination is entirely for you to make. If an attorney makes any such comment, you should completely disregard it. The case must be decided solely on the basis of the admissible evidence and the law that I will give to you.
"Attorneys are not permitted to persuade you for or against either party by appealing to human passions or prejudices. If you become conscious of any passion or prejudice as you consider the evidence or engage in your deliberations, you must put those feelings aside and not permit them to influence your thinking. If a lawyer makes any such comment, you should disregard that comment."
In the absence of objection, the judge was not obliged to administer such an instruction sua sponte, though specific instruction would have been beneficial.
The jury however only convicted the defendant of the lesser included offense, which could be an indication that they were not affected by the attempt to appeal to their emotions. See Commonwealth v. Williams, 53 Mass. App. Ct. 719, 724-725 (2002); Commonwealth v. Saunders, 75 Mass. App. Ct. at 512. We conclude therefore that this error did not create a substantial risk of a miscarriage of justice. The jury's verdict suggests that, guided by the judge's instructions, they paid attention to the evidence and did not rely on the prosecutor's invitation to make a determination based upon sympathy.
Judgment affirmed.
By the Court (Cohen, Green & Trainor, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 16, 2015.