Opinion
No. 09–P–1271.
2012-08-3
COMMONWEALTH v. Nicholas M. BRYANT.
This argument is error in three respects.
By the Court (KATZMANN, BROWN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Nicholas M. Bryant, was convicted by a jury of one count of indecent assault and battery in violation of G.L. c. 265, § 13H. The case was tried as a credibility case based on the testimony, demeanor, and motivation of the complaining witness, whose father lived with the defendant's mother, along with their children, the defendant, and the complaining witness. On appeal, the defendant argues that the prosecutor's closing argument impermissibly referred to multiple complaints not in the record, and commented upon the complaining witness's willingness to come to court to testify, thereby improperly bolstering the witness's credibility. We agree, and therefore reverse the conviction.
The alleged victim, whom we shall call Susan, testified that the defendant called her at the home in which the families lived to say he wanted a kiss when he got home. When he arrived at their home at approximately 11:00 P. M., he went into the bedroom, where she was lying on the bed, and according to Susan, bear hugged her until he received a kiss. He left, returned, and asked her to have sex, to which she responded, “No.” He then touched her “butt,” and went “below” in the “middle.” At the time that this touching is said to have taken place, Susan was on the telephone with the mother of a friend. The mother testified at trial that she heard nothing. The next day at school, Susan told a friend, who testified as a first complaint witness.
The Commonwealth called as part of its case in chief the arresting officer, who testified to his qualifications and training in sexual assault investigations. He testified that he saw Susan at the station, that her eyes were red and swollen, and that he later arrested the defendant. The defendant argued, based on the testimony of his investigator and his mother, that the event did not take place, that Susan resented the presence of his mother in her father's life, and that the story was fabricated in order to get the defendant's mother out of the house and to have her father to herself again.
In her closing remarks, after describing Susan's demeanor during trial, the prosecutor made the following argument:
“Why would a sixteen year old girl who had an axe to grind with her ... stepmother as she described her, who says she had a good relationship with, come forward and tell this story which was so difficult for her to tell you here today? Seven strangers, tell you what happened?
“It's embarrassing as she described and as mortifying as the incident was to her, why would she come here and tell you that? And why would she tell her best friend that? And why would she tell every person thereafter? I would suggest to you the motivation, the motivation is because ... that's [Susan's] side of what happened .”
This argument is error in three respects.
First, there was no evidence that Susan “told every person thereafter.” The evidence at trial was that she told the first complaint witness. On cross-examination, defense counsel elicited from the arresting officer that he had taken a report, but did not elicit details of that report. “There was no evidentiary support for the Commonwealth's suggestion” that the alleged victim told multiple people what she had told the first complaint witness or the jury. Commonwealth v. Misquina, 82 Mass.App.Ct. 204, 206 (2012). “The prosecutor's remarks improperly implied that she possessed additional knowledge corroborating the victim's testimony beyond what is in evidence.” Ibid., citing Commonwealth v. Gaudette, 441 Mass. 762, 770 (2004).
Second, the reference to multiple nonexistent complaints constituted the type of back door “piling on” which the first complaint doctrine rejects, precisely because the “piling on” “serves no additional corroborative purpose, and may unfairly enhance a complainant's credibility as well as prejudice the defendant.” Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008), quoting from Commonwealth v. King, 445 Mass. 217, 242–243 (2005), cert. denied, 546 U.S. 1216 (2006). See Commonwealth v. Arana, 453 Mass. 214, 223 (2009); Commonwealth v. Monteiro, 75 Mass.App.Ct. 489, 493 (2009); Commonwealth v. Misquina, supra.
In this context, the Commonwealth's presentation of the arresting officer's qualifications as a sexual assault investigator raises concerns that the officer was vouching for Susan's credibility. The officer was entitled to testify to Susan's demeanor at the station in order to refute the claim of fabrication. See Commonwealth v. Arana, 453 Mass. at 225–226;Commonwealth v. McCoy, 456 Mass. 838, 846 (2010). However, the juxtaposition of the demeanor testimony with the previous recitation of his credentials, and the fact of the subsequent arrest, may have conveyed the impression that he had special expertise assessing victims of sexual assault, that Susan was telling the truth, and that he pursued the investigation and made the arrest as a result. See Commonwealth v. Stuckich, supra at 457 (testimony regarding investigative process “creates the imprimatur of official belief in the complainant”); Commonwealth v. Monteiro, supra at 494 (same). While we do not decide whether this testimony alone would constitute impermissible vouching, the testimony reinforces our conclusion that the prosecutor's argument carried with it a substantial risk of miscarriage of justice.
Third, a “prosecutor may not ... suggest to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify.” Commonwealth v. Ramos, 73 Mass.App.Ct. 824, 826 (2009), quoting from Commonwealth v. Helberg, 73 Mass.App.Ct. 175, 179 (2008). The Commonwealth argues that Susan had difficulty testifying, and that the comment was fair because her embarrassment was not conjectured. Compare Commonwealth v. Ramos, supra. The prosecutor had already argued, however, that Susan should be credited because of her demeanor while testifying. That point had been made. The additional argument contravened the clear and longstanding admonition in the cases that argument that suggests that a victim would not subject herself to trial unless she was telling the truth exceeds the bounds of permissible advocacy. See Commonwealth v. Beaudry, 445 Mass. 577, 587–588 (2005).
There was no objection to the closing argument. We therefore review for a substantial risk of miscarriage of justice. The case turned exclusively on credibility; the impermissible portions of the closing argument went straight to the issue of credibility. See Commonwealth v. Misquina, supra at 207. Compare Commonwealth v.. Roby, 462 Mass. 398, 408–409 (2012) (erroneous admission of first complaint testimony did not create substantial risk of miscarriage of justice where Commonwealth did not argue multiple complaints in closing argument). The case was tried and the jury returned their verdict in a single day; the arguments were fresh in the jury's mind. There is no discernible tactical reason for the failure to object. Compare Commonwealth v. Roderiques, 462 Mass. 415, 426–427 (2012). There was no curative instruction. Compare Commonwealth v. Beaudry, supra. We therefore “have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Roderiques, supra, quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). Even if an individual error does not warrant a new trial, the combination of multiple errors in the prosecutor's closing argument leads to the conclusion that they created a substantial risk of a miscarriage of justice such that the defendant did not receive a fair trial.
The defendant also appeals from the denial of a motion for new trial which, in light of the resolution of this appeal, we need not decide. We do not address the defendant's other contentions, which are unlikely to arise, if at all, in the same context, given our decision here.
Judgment reversed.
Verdict set aside.