Opinion
No. 10–P–2271.
2012-06-15
COMMONWEALTH v. Marcos Aldama GONZALEZ.
By the Court (KAFKER, BROWN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant was found guilty of assault and battery and acquitted of threating to commit a crime. The victim was the defendant's former girlfriend. The defendant's sole claim on appeal is that the prosecutor's closing argument, to which he objected, was improper and prejudicial and thus requires reversal of his conviction. We affirm.
The thrust of the defendant's argument is that the prosecutor impermissibly referred to facts not in evidence. The challenged comments include: a statement that the victim was “ashamed” that she had fallen in love with the defendant, a remark about the defendant's life in a homeless shelter to the effect there was little opportunity to bathe, a rhetorical question about the defendant's schizophrenia, an assertion that the victim's sister-in-law's son was in the home at the time the offense was committed, and an assertion as to the absence of testimony from a responding police officer who wrote the police report. The defendant also claims that by asking the jury to imagine themselves in the location where the offense occurred (the victim's kitchen) the prosecutor made an improper appeal to their emotions.
The Commonwealth concedes that there was no evidence regarding the whereabouts of the victim's sister-in-law's son at the time in question or the police officer's absence, and therefore these comments went beyond the boundaries of proper argument. These errors, however, do not warrant a new trial because the judge, in an effort to eliminate any potential for prejudice, specifically informed the jury that there was “no evidence whatsoever” that the victim's sister-in-law's son was in the home, and that there was “no evidence” regarding the officer's absence and they were to disregard that improper statement. As to the remaining comments, even if we were to assume that they were similarly improper (which we do not), any resulting error was not prejudicial due to the judge's repeated and more than adequate unobjected-to instructions that closing arguments are not evidence. See Commonwealth v. Kater, 432 Mass. 404, 422–424 (2000).
Judgment affirmed.