Opinion
19-P-1776
11-24-2020
COMMONWEALTH OF MASSACHUSETTS v. DYLAN J. HENRIQUE.
NOTICE: 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 23.0
On appeal from his convictions on two counts of indecent assault and battery on a child under the age of fourteen, the defendant argues that a new trial is warranted because of several allegedly improper statements in the prosecutor's closing argument. To the extent we find error in the prosecutor's statements, we are satisfied that it did not unduly prejudice the defendant or create a substantial risk of a miscarriage of justice. We thus affirm the convictions.
The defendant was acquitted of a third count of the same.
We review the challenged statements to which the defendant timely objected for prejudicial error. See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016). Those that passed without objection we instead review for any substantial risk of a miscarriage of justice. Id. "Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Id., quoting Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). In their closing, "[a] 'prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom.'" Commonwealth v. Deane, 458 Mass. 43, 55-56 (2010), quoting Commonwealth v. Paradise, 405 Mass. 141, 152 (1989). With these principles in mind we review the challenged statements in turn.
The defendant first contends that the prosecutor impermissibly argued facts not in evidence by stating that the defendant was "grooming" the victim "to get what he wanted from her, which was sex." We disagree that this statement was not rooted in the evidence. There was testimony that the defendant's behavior toward the victim escalated over time from gift-giving to kissing to more serious sexual contact. Such testimony permitted the reasonable and possible inference that he desired intercourse with her, and arguing that inference to the jury was permissible. See Commonwealth v. Roy, 464 Mass. 818, 829 (2013).
Other statements from the prosecutor's closing crossed the line into improper argument. Regarding the victim, the prosecutor asked: "Her motive for testifying, why did she come into open court and recount the embarrassing and painful events involving the Defendant? What's in it for her?" A prosecutor may never suggest that a witness should be believed simply because they came to court to testify. See Commonwealth v. Beaudry, 445 Mass. 577, 586-587 (2005). If such suggestion is made, however, an emphatic jury instruction specifically addressing the improper statement can mitigate any prejudice. See id. at 587-588.
That is precisely what happened here: after the defendant's objection to the improper statement, the trial judge told the members of the jury that such argument was "not permissible" and that she was "instructing [them] not to consider that as an argument at all." The defendant, who requested a curative instruction, did not subsequently object to the one given; we therefore review for whether the improper statement created a substantial risk of a miscarriage of justice. See id. at 587. Because the curative instruction was sufficiently specific and forceful, we do not perceive any such risk.
The defendant also challenges the prosecutor's objected-to statement that the victim's testimony should be credited because "her emotional state . . . . was consistent [with] someone who had just been molested." Counsel is free to "call on the experience and common knowledge of the jury," Commonwealth v. Ridge, 455 Mass. 307, 330 (2009), but, as the Commonwealth concedes, the typical emotional state of a sexual assault victim is not within common knowledge and requires expert testimony. See Commonwealth v. Alvarez, 480 Mass. 299, 312 (2018). The Commonwealth presented no expert testimony on the issue, and thus the prosecutor's statement had no basis in the evidence. See Commonwealth v. Ferreira, 460 Mass. 781, 787 (2011).
In fact, at a sidebar during cross-examination of the victim, the trial judge prospectively barred the prosecutor from making this argument without supporting expert testimony. The judge nevertheless overruled the defendant's objection to the statement during the prosecutor's closing.
In spite of the impropriety of the statement, however, we do not believe that it unfairly prejudiced the defendant. First, given the available evidence, the jury likely would have come to the same conclusion if the prosecutor had confined his comments to the permissible subject of the victim's demeanor. Second, the judge's instructions to the jury sufficiently mitigated the mistake by instructing that (1) closing arguments are not evidence, (2) the jury must find the defendant guilty beyond a reasonable doubt based on the evidence, and (3) the jury may not rely upon an argument in closing that is inconsistent with the evidence. We reject the defendant's contention that these instructions "lacked teeth," and because the instructions' cumulative effect was sufficient to mitigate any prejudice to the defendant, we are confident that the error "did not influence the jury, or had but very slight effect." Alvarez, 480 Mass. at 305, quoting Commonwealth v. Hrabak, 440 Mass. 650, 656 (2004).
The prosecutor later made a similar statement, to which the defendant did not object, that the witness was "acting consistently with someone who had just been traumatized." For the same reasons, we find no substantial risk of a miscarriage of justice attributable to this statement.
Finally, the defendant argues that the improper statements, even if individually permissible, require a new trial when considered together. See Commonwealth v. Niemic, 483 Mass. 571, 595-596 (2019). As discussed above, not all of the remarks were improper, and any error from those that were was sufficiently mitigated by the jury instructions given. We also observe, with some deference, that the trial judge denied the defendant's motion for a mistrial premised on the same grounds; having presided over the entirety of the trial, the trial judge was uniquely positioned to evaluate the cumulative effects of the prosecutor's improper statements and determine the appropriate remedy. See Commonwealth v. Amran, 471 Mass. 354, 360 (2015). We conclude that the impropriety was not so pervasive as to warrant a new trial.
Judgments affirmed.
By the Court (Green, C.J., Desmond & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 24, 2020.