Opinion
16-P-428
03-31-2017
COMMONWEALTH v. Joseph N. JONES, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for new trial approximately twenty-two years after his conviction for rape was affirmed on direct appeal. See Commonwealth v. Jones , 34 Mass. App. Ct. 683 (1993). He claims that the denial of his motion for new trial was an abuse of discretion based on the prosecutor's improper closing argument, constructive amendment of the indictment, and ineffective assistance of counsel. We affirm.
Discussion . A "judge ... may grant a new trial at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). "We review the judge's decision ‘to determine whether there has been a significant error of law or other abuse of discretion.’ " Commonwealth v. Adkinson , 80 Mass. App. Ct. 570, 584 (2011), quoting from Commonwealth v. Grace , 397 Mass. 303, 307 (1986).
1. Closing argument . a. Victim's credibility . In response to defense counsel's closing argument, which forcefully challenged the victim's credibility, the prosecutor asked the jury to "[w]alk through the evidence" and consider "what could possibly motivate [the victim] to come forward." Specifically, the prosecutor said:
"What could motivate [the victim] who now has another life for herself hundreds and hundreds [of] miles away in North Carolina to come back two years later and put herself through this degrading ordeal unless she is motivated to tell the truth, to tell the truth and to leave it to you to do something about this? Have you heard an iota of evidence of any legitimate motive that a woman would put herself through this unless every word of it was the truth as to what he did to her?"
Defense counsel did not object to this part of the closing argument at trial or raise it on direct appeal. The defendant now claims the argument improperly bolstered the victim's credibility.
The Commonwealth argues that the defendant is estopped from challenging the prosecutor's closing argument because it was an issue raised in his direct appeal. See Commonwealth v. Jones , supra at 685. However, the judge concluded that only one of the defendant's claims of error in the prosecutor's closing argument was raised in the direct appeal. Because the judge elected to review the defendant's other claims of error in the argument, we address them. See Commonwealth v. Curtis , 417 Mass. 619, 624 n.4 (1994).
The judge concluded that there was no error, stating "the prosecutor responded to an attack on the victim's credibility by inviting the jury to consider whether the victim has a motive to lie, and identifying evidence that demonstrates that the victim's testimony is accurate and reliable." "Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed." Commonwealth v. Raposa , 440 Mass. 684, 694-695 (2004), quoting from Commonwealth v. Thomas , 401 Mass. 109, 116 (1987). However, it is impermissible for a prosecutor to "suggest to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify." Commonwealth v. Helberg , 73 Mass. App. Ct. 175, 179 (2008). Mindful of these principles, we conclude that the portion of the prosecutor's argument quoted above was improper. See Commonwealth v. Ramos , 73 Mass. App. Ct. 824, 826 (2009) (improper to bolster victim's credibility by arguing victim's willingness to come forward and testify regarding embarrassing sexual assault).
Because there was no objection, and this issue was not raised on direct appeal, we review the error for a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis , 417 Mass. 619, 623-626 (1994). "The substantial risk standard requires us to determine ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ " Commonwealth v. Dirgo , 474 Mass. 1012, 1016 (2016), quoting from Commonwealth v. Azar , 435 Mass. 675, 687 (2002), S .C ., 444 Mass. 72 (2005). In reviewing "the evidence and the case as a whole ... [w]e consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision." Ibid .
Here, the evidence against the defendant was strong. While the victim's credibility was a central issue in the case, her testimony was corroborated by the first complaint witness, an investigating officer, physical evidence, and a medical expert. At trial, there was no objection to the argument or request for a curative instruction. See Commonwealth v. Duguay , 430 Mass. 397, 404 (1999), quoting from Commonwealth v. Toro , 395 Mass. 354, 360 (1985) ( "Although not dispositive of the issue, the absence of any such request ... is some indication that the tone, manner, and substance of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial"). Finally, the jury was instructed that the opening statements and closing arguments of counsel were not evidence in the case. Considering all of these factors we discern no substantial risk that justice miscarried.
The defendant also claims error in the judge's conclusion that the prosecutor's improper statement that "sperm was found in [the victim's] vagina, I guess he enjoyed it" was an "isolated remark in an otherwise proper part of the argument." As the defendant does little more than assert error, this claim does not rise to the level of appellate argument. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Custody of Kali , 439 Mass. 834, 838 (2003).
--------
b. Defendant's credibility . "[I]t is impermissible for a prosecutor to argue in closing that the jury should draw a negative inference from the defendant's opportunity to shape his testimony to conform to the trial evidence unless there is evidence introduced at trial to support that argument." Commonwealth v. Gaudette , 441 Mass. 762, 767 (2004). The judge concluded that the prosecutor violated this principle in his argument. However, the judge also determined that the error did not create a substantial likelihood of a different result. In light of the independent corroboration of the victim's testimony referenced above, we discern no abuse of discretion in the judge's conclusion.
2. Constructive amendment . The defendant claims that the judge's instructions to the jury and statements by the prosecutor constructively amended the indictment. "A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury." Commonwealth v. Bynoe , 49 Mass. App. Ct. 687, 691-692 (2000), quoting from United States v. Floresca , 38 F.3d 706, 710 (4th Cir. 1994), citing Stirone v. United States , 361 U.S. 212 (1960). We agree with the judge that, taken as a whole, neither the jury instructions nor the prosecutor's opening statement or closing argument left "open the possibility that the jury could convict the defendant of a rape that occurred on a date other than October 21, 1989."
3. Ineffective assistance of counsel . Finally, the defendant argues that his counsel was ineffective because he failed to object to the prosecutor's closing argument. As discussed above, the improper comments in the prosecutor's closing argument did not create a substantial risk of a miscarriage of justice. Accordingly, there is "no basis for an ineffective assistance of counsel claim." Commonwealth v. Curtis , 417 Mass. at 625 n.4.
Order denying motion for new trial affirmed .