Opinion
No. 10–P–1863.
2012-08-24
COMMONWEALTH v. Paul F. FAY, Jr.
By the Court (VUONO, SIKORA & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of indecent assault and battery on a child. The victim, G.D., is the defendant's daughter. On appeal, the defendant contends that, in closing arguments, the prosecutor impermissibly shifted the burden of proof by arguing that G.D. had no motive to lie. We conclude that the challenged comments, which we review in light of the entire argument, as well as in the light of the judge's instructions to the jury and evidence at trial, see Commonwealth v.. Rodriguez, 437 Mass. 554, 565 (2002), did not create a substantial risk of a miscarriage of justice, and affirm the conviction.
The jury acquitted the defendant of rape of a child with force.
Background. We summarize the evidence presented to the jury. G.D. lived with her mother after her parents divorced and had not had any contact with the defendant for two years when, in May of 2008, the defendant telephoned G.D.'s mother and asked to see G.D. G .D. was six years old at the time. The family met for dinner at a local restaurant, and, because G.D. appeared to enjoy herself, G.D.'s mother arranged for an afternoon visit at the defendant's home. During that visit, the defendant took G.D. to his bedroom and told her to take off her clothes. Although she was upset, G.D. complied. The defendant then took off his clothes and touched G.D.'s vagina with his fingers penetrating her “a little bit.” Similar incidents occurred over the next few visits until G.D. told her mother about the defendant's conduct. G.D.'s mother confronted the defendant, who denied that he had touched G.D. inappropriately. The mother then reported the matter to the police. The defendant testified at trial and claimed that the events never occurred. He also suggested that the allegations were fabricated because his ex-wife was jealous that he was dating another woman.
Discussion. As often happens in child abuse cases, the victim's credibility was strenuously challenged. During his closing arguments, defense counsel argued that the defendant was “credible, ... honorable, and ... believable,” and his daughter was “wrong.” The prosecutor countered the argument by emphasizing G.D .'s credibility and highlighting the lack of evidence showing that G.D. had a motive to lie. The prosecutor posed the following rhetorical questions:
“[Y]ou'll have to determine is there any evidence of a motive for her to lie and make up a monstrous lie like this.” And, “Do you have any evidence, any evidence in front of you of a reason for [G.D.] to have lied about this?” The defendant argues that these comments, among others, improperly shifted to the defendant the burden of proving G.D.'s motive to lie. Because the defendant did not object, we review the claimed error under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Loguidice, 420 Mass. 453, 455–456 (1995).
Given our conclusion that there was no substantial risk of a miscarriage of justice, there is no basis for the defendant's related claim that trial counsel was ineffective for failing to object. See Commonwealth v. Curtis, 417 Mass. 619, 624 n. 4 (1994).
The defendant is correct that a “prosecutor ... cannot make statements that shift the burden of proof from the Commonwealth to the defendant.” Commonwealth v. Johnson, 463 Mass. 95, 112 (2012), quoting from Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). However, a “prosecutor is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case.” Id. at 113, quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990). Here, viewed in light of the entire record, the prosecutor's remarks constituted permissible comment on G.D.'s reliability, which did not result in shifting the burden to the defendant. By asking the jury, rhetorically, whether there was any evidence of G.D.'s motive to lie, the prosecutor did not suggest that the defendant had a duty to present evidence of such a motive. Rather, he focused the jury's attention on the fact that G.D. was a credible witness because she had no motive to lie. See Commonwealth v. Tu Trinh, 458 Mass. 776, 788 (2011). Moreover, contrary to the defendant's assertion, the judge's repeated instructions, which accurately informed the jury that the burden of proof remained with the Commonwealth, eliminated any possibility of prejudice. See ibid.
We likewise are not persuaded by the defendant's argument that the prosecutor mischaracterized the defense by presenting the jury with a binary choice between finding that G.D. told the truth or that she purposefully lied.
As we have previously stated, the victim's credibility was an initial issue at trial, and the prosecutor was entitled to argue why G.D. should be believed. See Commonwealth v. Choeurn, 446 Mass. 510, 522 (2006).
Judgment affirmed.