Opinion
14-P-864
05-27-2015
COMMONWEALTH v. JOHN BOLIEAU.
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, John Bolieau, appeals from convictions by a jury of three counts of rape of a child, four counts of indecent assault and battery on a child under fourteen, and one count of indecent assault and battery on a person over fourteen. The defendant raises two arguments on appeal: first, that the first complaint instruction improperly invaded the province of the jury and created a substantial risk of a miscarriage of justice; and second, that the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.
The first complaint instruction conforms to the pattern instruction set forth by the Supreme Judicial Court in Commonwealth v. King, 445 Mass 217, 247-248 (2005). Indeed, the defendant concedes that this is so. Nevertheless, he urges us to conclude that the language in the instruction -- "but you may also consider that sexual assault complainants may delay reporting the crime for a variety of reasons" -- constitutes a comment by the judge on the evidence. We decline the defendant's invitation. Whether this instruction should be revisited is a matter for the Supreme Judicial Court. We also conclude, for the reasons set forth in the Commonwealth's brief at pages 16 through 18 and the authorities cited therein, that even if the sentence in the instruction challenged by the defendant did come close to the boundary of the jury's province, there is no substantial risk of a miscarriage of justice.
We agree with the defendant that the prosecutor's statement in closing argument attempting to define reasonable doubt as evidence which requires that the jury "feel comfortable and strong" was error. We do not think, however, that the remark created a substantial risk of a miscarriage of justice in light of the judge's instruction to the jury before closing argument that he would instruct them on the law, defense counsel's closing argument referring to proof beyond a reasonable doubt, the prosecutor's statement to the jury just before making the comment that the judge was "the expert in the law and you're going to hear him when he gives you the instructions and he's going to explain to you what beyond a reasonable doubt means," the prosecutor's reference to "moral certainty," and the judge's correct and thorough instruction on reasonable doubt. See, e.g., Commonwealth v. Atkins, 386 Mass. 593, 601-602 (1982); Commonwealth v. Cook, 419 Mass. 192, 203-204 (1994); Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 385 (2003); Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 53-54 (2003).
Judgments affirmed.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 27, 2015.