Opinion
14-P-1160
03-09-2016
COMMONWEALTH v. ALEXANDER HALLUMS.
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, Alexander Hallums, appeals from convictions by a jury of aggravated rape, G. L. c. 265, § 22(a), and larceny from a person, G. L. c. 266, § 25. The defendant contends that the prosecutor's closing argument contained multiple errors requiring reversal. At trial the defendant did not object to the closing argument; therefore we review to determine whether, if there was error, it created a substantial risk of a miscarriage of justice.
To determine whether an argument was improper and requires reversal, "we consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). "Although not dispositive of the issue, the absence of [an objection] from experienced [defense] counsel is some indication that the tone, manner, and substance of the now challenged aspects of the prosecutor's [closing] argument were not unfairly prejudicial." Commonwealth v. Taylor, 455 Mass. 372, 384 (2009) (citation omitted).
The main issue at trial was, essentially, credibility. The defendant argues that in closing argument the prosecutor vouched for the victim's credibility, appealed to the emotions of jurors, and shifted the burden of proof to the defendant through rhetorical questions. We conclude that all but one of the challenged remarks was proper. We also conclude that the remark that was improper did not create a substantial risk of a miscarriage of justice.
1. Vouching. According to the defendant, the prosecutor vouched for the victim on multiple occasions in the closing argument. The defendant advanced a strong challenge to the victim's credibility in his closing argument. Examination of the challenged portions of the prosecutor's closing argument reveal that, in context, the prosecutor's arguments constituted fair response to the defendant's closing argument and consisted of reasons, based on the evidence, that the jury could use to determine that the victim was telling the truth. The prosecutor could express his "view of the strength of the evidence" that the victim's testimony was credible. Commonwealth v. Smith, 387 Mass. 900, 907 (1983). The prosecutor did not state his personal belief in the victim's truthfulness. See Commonwealth v. Chavis, 415 Mass. 703, 713 (1993); Commonwealth v. Smith, 460 Mass. 385, 399 (2011).
One matter of concern is that a statement attributed to the prosecutor in the defendant's brief does not, in fact, appear in the closing argument (or anywhere else in the transcripts). The passage in the brief (at page 11) reads,
"In direct contravention to the SJC's explicit holding in Commonwealth v. Beaudry that it is improper for a Prosecutor to suggest that an alleged victim has no reason to lie, the Prosecutor in the instant case went on explicitly to do just that, telling jurors, for instance, that '[The Complainant] didn't have to say a word. What is her motivation for lying, for making this up, for manufacturing this? There's nothing. The fact is is [sic] that the defendant raped her, and she reported that vile act.' (III:19); Commonwealth v. Beaudry, 445 Mass. [577,] 587-588 [(2005)]." (First alteration in original.)
The Commonwealth concedes, and we agree, that one statement by the prosecutor did constitute error: "[The victim's] got no reason to lie. She told the police that she was committing a crime and she told you the same thing." A prosecutor may not tell the jury that a victim has no reason to lie. Commonwealth v. Beaudry, 445 Mass. 577, 586-587 (2005). However, viewing the statement in context of the entire closing argument, the absence of an objection, and the judge's instructions to the jury, we do not think that this single remark made a difference in the jury's conclusion. See Commonwealth v. Miller, 457 Mass. 69, 79 (2010).
2. Jury emotions. The defendant claims that the prosecutor improperly appealed to the sympathies and inflamed the passions of the jurors. The statements identified by the defendant were not improper appeals to sympathy and passion but rather consisted of remarks that the prosecutor made based on the evidence, or fair inferences that the prosecutor could ask the jury to draw. See Commonwealth v. Semedo, 456 Mass. 1, 13 (2010). See also Commonwealth v. Batista, 53 Mass. App. Ct. 642, 646 (2002) (inferences need only be reasonable and possible). The evidence showed that the victim was scared and hurt. The prosecutor was entitled to marshal this evidence and argue it in his closing. See Beaudry, 445 Mass. at 587.
The defendant also challenges the prosecutor's characterizations of the victim -- specifically, that "[s]he's had a very troubled life," "[s]he was desperate," and "she was vulnerable." In fact, defense counsel had referred to the victim as "desperate" several times during his closing argument. In light of the fact that the victim had testified that she was a drug addict, the statements were fair inferences that the prosecutor could suggest to the jurors. See Semedo, 456 Mass. at 13; Batista, 53 Mass. App. Ct. at 646.
3. Rhetorical questions. Defense counsel argues that the prosecutor's use of rhetorical questions shifted the burden of proof. Rhetorical questions in a closing argument are improper if they suggest a defendant "had any duty to present evidence," Commonwealth v. Halstrom, 84 Mass. App. Ct. 372, 385 (2013), or if they are "of such a nature that a jury would naturally and necessarily construe them to be directed to the failure of the defendant to testify." Commonwealth v. Grant, 418 Mass. 76, 83 (1994), quoting from Commonwealth v. Smallwood, 379 Mass. 878, 892 (1980). Here, the prosecutor's language was directed toward refuting defense counsel's assertion in his closing that the witness was fabricating her testimony. See Chavis, 415 Mass. at 713; Commonwealth v. Flint, 81 Mass. App. Ct. 794, 807 (2012). When considered in context, the rhetorical questions did not shift the burden of proof. See Commonwealth v. Habarek, 402 Mass. 105, 111 (1988).
4. Conclusion. All but one of the remarks challenged by the defendant were proper. We are confident that the one statement that was improper did not affect the jury's verdicts when viewed in context of both sides' closing arguments, the evidence at trial, and the judge's instructions to the jury.
Judgments affirmed.
By the Court (Cypher, Wolohojian & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 9, 2016.
We assume that this misstep by appellate counsel was merely an error.