Opinion
20-P-769
01-06-2022
COMMONWEALTH v. DANIEL ESCALANTE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 2 3.0
Following a jury trial in the Superior Court, the defendant was convicted of two counts of rape of a child and four counts of indecent assault and battery on a child under the age of fourteen. He appeals, claiming prejudicial error in the prosecutor's closing argument. We affirm.
The three victims were the defendant's stepdaughters. At the close of the Commonwealth's case, the judge allowed a motion for a required finding of not guilty on one count of the indictment; the jury acquitted the defendant of certain other counts.
In his closing argument, the prosecutor said that the three victims "weren't ready" to disclose their abuse in the years prior to their first complaints. The defendant contends that this statement was not supported by the facts in evidence or fair inferences, and improperly vouched for the victims. We are not persuaded. Where, as here, the defendant timely objected to the prosecutor's closing argument, we review to determine if there was error, and, if so, whether it "did not influence the jury, or had but very slight effect" (quotation and citation omitted). Commonwealth v. Tate, 486 Mass. 663, 669 (2021).
A prosecutor may argue forcefully for a conviction based on the evidence and reasonable inferences drawn therefrom. See Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). Inferences "need only be reasonable and possible based on the evidence before the jury" (quotation and citation omitted). Commonwealth v. Mack, 482 Mass. 311, 322 (2019). Here, the statement to which the defendant claims error -- the victims weren't ready to say anything -- was grounded in the evidence and the reasonable inferences drawn therefrom. One victim testified about her refusal to let a medical professional examine her. Another victim testified that after her first disclosure to her mother, nothing happened, and the defendant remained in the home. A third victim testified about her inability to discuss the abuse, and her concern that if she did, she "would break up the family." This evidence served to underpin the prosecutor's suggestion in his closing argument that the victims were not ready to disclose the abuse when it first occurred. Moreover, this argument was in direct response to the defendant's closing argument wherein counsel highlighted the victims' delayed disclosures and the inconsistencies in their reporting and testimony. See Commonwealth v. Polk, 462 Mass. 23, 39-40 (2012) (prosecutor may rebut defendant's closing argument suggesting victim should not be believed). There was no error.
Because, as the judge correctly concluded, the prosecutor's statement fell within the range of reasonable inference, the judge was not required to give a specific curative instruction.
The defendant's claim of vouching fares no better. "Improper vouching occurs when 'an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury'" (citation omitted). Commonwealth v. Dancy, 75 Mass.App.Ct. 175, 189 (2009). Here, the prosecutor's statement was not an indication that he possessed knowledge independent of the evidence presented to the jury. See Id. ("nothing in the prosecutor's statements suggested that he had information outside the record"). Rather, the prosecutor "merely invited the jurors to draw a conclusion from their own observations" of the victims' testimony. Commonwealth v. Pearce, 427 Mass. 642, 644 (1998). See Commonwealth v. Freeman, 430 Mass. Ill. 118-119 (1999) ("A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and not based on the prosecutor's personal beliefs").
Judgments affirmed.
The panelists are listed in order of seniority.