Opinion
14-P-414
01-05-2016
COMMONWEALTH v. MICHAEL DARSCH.
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, Michael Darsch, appeals his convictions on four counts of rape of a child, in violation of G. L. c. 265, § 23. The defendant maintains his convictions should be reversed for two reasons. First, he argues that the prosecutor's remarks in summation were improper and created a substantial risk of a miscarriage of justice. Second, he contends that the judge abused discretion when the judge did not allow the defendant to ask a witness's mother if the witness had a learning disability and what the witness was like as a child. We affirm.
Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth. See Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
Susan's mother, Mary, and her biological father ended their relationship when Susan was around four or five years old. When Susan was seven years old, her mother entered into a relationship with the defendant. The defendant moved into Mary's home that same year. Mary would sometimes leave Susan alone with the defendant while she worked during the day. The defendant has a child from a prior relationship, Brenda, and the defendant and Mary have a daughter, Katie. Mary also has a son, Colin.
A pseudonym. All members of Michael Darsch's family, Susan's mother's family, and Susan's friend and her mother have been given pseudonyms as well.
When Susan was around eight or nine years old, the defendant would call her into his bedroom and would tickle her inner thigh and have her slide down his leg. This would typically happen when Mary was not home. One time Susan's mother came home and saw Susan and her friend, Iris, in the defendant's bed and she yelled at them to get out. Iris had told her mother, Maureen, that the defendant was inappropriately touching her, but Maureen continued to allow Iris to visit.
Susan was twenty-two at the time of trial.
Iris was twenty-two at the time of trial.
When Susan was eight or nine years old, she would sometimes use the neighbor's pool and the defendant would sometimes accompany her. The defendant would tell Susan to put her private parts on the pool's jets. The defendant would also tell Susan to urinate outside by a truck and he would watch her. Iris testified that, on numerous occasions, she would see the defendant pull down Susan's bathing suit to her knees and then throw her into the pool. The defendant also would watch Susan shower over the shower curtain.
Around the time that Susan was ten years old, the defendant would get into bed with her in the morning. The defendant would only be wearing underwear and he would push up against Susan so she could feel his penis. When Susan was eleven years old, Mary and the defendant ended their relationship. After the breakup, Susan did not see the defendant for about a year until she began visiting him at his house a few times a week with her siblings and staying at his house overnight.
Susan began spending every other weekend at the defendant's house when she was around twelve or thirteen years old. When she was fourteen years old, she would play wrestle with the defendant. However, the play wrestling started to make Susan uncomfortable when it began to feel more like she was trying to keep her clothes on than play wrestle. Susan would watch television with the defendant and he would put his arm around her as well as open mouth kiss her with his tongue. This would occur every time Susan stayed at the defendant's house while she was fourteen years old.
When Susan was fifteen years old, the defendant brought her, her sister, and her friend back to his house after sledding. At his house, they all watched television. The defendant laid under a blanket with Susan and he placed his hand inside of her underwear and touched her vagina. Another time, while she was still fifteen, the defendant touched the inside of Susan's vagina and tried to make her orgasm. The defendant continued to touch Susan's vagina while she was fifteen years old every time she would stay at his house. On April 16, 2006, the defendant had sexual intercourse with Susan. After this first interaction, they had oral sex. Following the oral sex, they had sexual intercourse again. After that night, the defendant continued to have sexual intercourse with Susan approximately three times a week. This continued while Susan was fifteen years old until she turned sixteen years old on December 16, 2006.
There was some confusion in the transcript, as Susan testified that she may have been thirteen when this incident occurred.
In September, 2010, Susan told Iris that she was in a sexual relationship with the defendant and had been since she was fifteen years old. This relationship ended in October, 2010, which was around the same time that Susan applied for, and obtained, a restraining order against the defendant.
The defendant testified and denied the allegations. Brenda and Katie both testified that they never witnessed any inappropriate behavior between the defendant and Susan. The defendant also testified that he caught Susan and Iris engaging in sexual behavior. The girls stated that they had learned the behavior from the defendant, which he denied, and claimed that he was unsure why the girls blamed him.
Discussion. 1. Prosecutorial misconduct. The defendant cites several instances of prosecutorial misconduct during summation. We will address each of them in turn. However, because they were not objected to at trial, we will review the prosecutor's remarks to determine error and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 776 (2001). "[T]he critical question is whether the closing argument invited or compelled the jury to reach some conclusion they may not otherwise have reached." Commonwealth v. Dumais, 60 Mass. App. Ct. 70, 75 (2003).
a. Defendant's credibility. The defendant asserts that the prosecutor improperly argued that the defendant was not credible solely because of his denial of the allegations. "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.'" Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990), quoting from Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). When a defendant testifies as a witness, the prosecutor may argue why the defendant is not a credible witness. Commonwealth v. Krepon, 32 Mass. App. Ct. 945, 946 (1992).
The prosecutor stated:
"Now, on the one hand you have Mr. Darsch. I want you to ask yourselves who has a bigger motivation than anybody else on the planet to come in here and say what he needs to say than the person who stands accused of child rape? Is there anybody else in the world who has a greater motive than that person to say whatever he needs to say?"
We discern no error with the prosecutor's comments about the defendant's credibility. See ibid. ("[P]rosecutor may permissibly argue that the defendant is not a credible witness"). The prosecutor also stated, "I can't tell you who to believe. I can just point out things that I think you should consider. You have to decide which version of these facts to believe." Furthermore, the judge instructed the jury that closing arguments were not evidence, and that the jurors were the "sole judges of the credibility of every witness." Also, a "certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed." Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). Because there was no error, this does not rise to a substantial risk of a miscarriage of justice.
b. Susan's credibility. The defendant argues that the prosecutor improperly vouched for the credibility of the alleged victim and argued facts not in evidence. In the instant case, credibility of the witnesses was a main issue. "When credibility is an issue before the jury, 'it is certainly proper for counsel to argue from the evidence why a witness should be believed.'" Commonwealth v. Freeman, 430 Mass. 111, 119 (1999), quoting from Commonwealth v. Raymond, 424 Mass. 382, 391 (1998). "It is not improper vouching for the prosecutor to point to reasons why a witness's testimony, or portions of a witness's testimony, should logically be believed." Commonwealth v. Rolon, 438 Mass. 808, 816 (2003).
The prosecutor stated:
"And I suggest to you, ladies and gentlemen, if Susan really wanted to stick it to Michael Darsch, right, she just made this up whole cloth, well why did she then say she consensually had sex with him? Now, come on. If she really wanted to get him, she would have come in here and sat down and said: I was crying. It was late at night. He pinned me down and forced my legs open and he raped me. Did she tell you that, because that would be really good if she was trying to make this up? No, she told you what happened. She fell in love with him. She wanted to have sex with him."
Again, we note that the prosecutor and judge both told the jury that they were the sole judges of the credibility of the witnesses. See Yesilciman, supra at 746 (analyze the prosecutor's remarks in light of the entire argument as well as the judge's jury instructions). The defendant attacked Susan's credibility in his closing argument, then the prosecutor illustrated a syllogism for the jury why Susan should logically be believed. See Rolon, supra. Although the prosecutor's remarks were somewhat immoderate, we do not think they constituted error. Therefore, there was no substantial risk of a miscarriage of justice.
c. Duty to return a guilty verdict. The defendant argues that the prosecutor improperly suggested that the jury owed Susan a duty to return a guilty verdict. The Commonwealth cannot imply that it is the jury's duty to a victim to convict the defendant. Commonwealth v. Miller, 457 Mass. 69, 79-80 (2010). We do not approve of the comment the prosecutor made and determine that it was error and exceeded the bounds of permissible argument in his summation. However, in light of the entire closing argument and the judge's instruction to the jury, it does not rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 53 (2003) (prosecutor's closing statement, "[n]ow is the time for justice. Find him guilty." an error, but found not prejudicial). This unobjected to statement by the prosecutor did not compel the jury to reach a conclusion they may not have reached without the statement. See Dumais, 60 Mass. App. Ct. at 75.
The prosecutor stated: "Well I'm done now. Now it's your turn. And it's my turn to finally ask you to speak the truth for Susan. Find Mr. Darsch guilty. Thank you."
2. Maureen's testimony regarding her daughter, Iris. The defendant contends that the judge abused discretion by not allowing the defendant to ask Maureen if her daughter, Iris, had a learning disability and what she was like as a child. Evidentiary rulings by a judge are reviewed for an abuse of discretion. See Commonwealth v. Torres, 86 Mass. App. Ct. 272, 278 (2014). See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ("[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 [1st Cir. 2008] . . . , such that the decision falls outside the range of reasonable alternatives").
The judge did not abuse discretion by not allowing Maureen to testify about Iris's learning disability or what she was like as a child. The judge, at sidebar, told the defendant that he would need an expert for that line of questioning. A judge has discretion to determine whether a subject matter is appropriate for expert testimony. See Commonwealth v. Richardson, 423 Mass. 180, 182-183 (1996). See also Commonwealth v. Jackson, 432 Mass. 82, 86 (2000) (expert testimony offered that defendant suffered from a learning disability). Moreover, there was no evidence offered of a learning disability or that Iris could be "easily swayed" that would challenge what Iris personally witnessed. Requiring an expert to make this link was within the judge's discretion.
Judgments affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: January 5, 2016.