Opinion
10-P-1705
02-14-2012
COMMONWEALTH v. JUSTIN M. LUCIO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted after a jury trial of larceny of property having a value greater than $250. On appeal, he argues that the prosecutor created a substantial risk of a miscarriage of justice in his closing argument and by offering evidence that the judge had excluded. We affirm.
The defendant was arraigned in District Court on two separate complaints arising out of the end of his relationship with his girlfriend. After a trial, he was acquitted of a charge of assault and battery on the girlfriend's child. The trial in the present case followed and, at the outset, the defendant moved in limine to exclude evidence of the assault and battery and the resulting restraining order. The judge agreed that there would be no mention of the restraining order or the assault and battery allegation, but said that the prosecutor could present evidence that '[i]t wasn't a friendly breakup' and that the defendant was 'essentially kicked out' of the apartment.
In response to the prosecutor's question about why she didn't want the defendant in her apartment, the victim testified, without objection, that it was because she 'didn't want him anywhere near [her or her] daughter.' In response to a question from defense counsel about whether she knew 'for a fact that he left,' the victim testified, again without objection, that she watched the defendant walk out the door, and that she locked the door behind him, went into her bedroom with her daughter and locked that door, then 'put a chair under the door, and pushed the bureau in front of the door.' None of this testimony exceeded the limitation set by the trial judge when he ruled on the motion in limine. As noted, defense counsel did not object and the defendant does not now argue that she was ineffective for failing to do so. We see no error and certainly no substantial risk of a miscarriage of justice.
The defendant next argues that the prosecutor's closing argument, to which no objection was made at trial, created a substantial risk of a miscarriage of justice in three ways. First, the prosecutor referred to the now-challenged evidence, described supra, saying that the defendant had returned to the apartment, despite the fact that the victim had barricaded herself in her room, 'despite what her fear was, despite what she wanted for herself and for her daughter.' Because the evidence was admitted, the prosecutor did not err when he referred to it in his closing. 'Arguments based on testimony submitted at trial . . . are proper . . . .' Commonwealth v. Wallace, 460 Mass. 118, 126 (2011), quoting from Commonwealth v. Colon, 449 Mass. 207, 224-225, cert. denied, 552 U.S. 1079 (2007).
Second, the prosecutor referred to the defendant's occupation as a construction worker, pointing out that it was different from the victim's work as a nurse, 'especially in terms [of] how inconsistent it was. This individual if it rained or if certain things happened, any series of unperceivable problems at a job site, he wouldn't go to work and that in fact wasn't employed by the time the relationship ended.' The defendant maintains that this argument disparaged the defendant's profession in an effort to create prejudice against him. We disagree and observe that the argument was appropriate and relevant on the issue of motive to commit the crime of larceny.
Third, the prosecutor stated that the victim had trusted the defendant and had agreed to share her life with him while working to provide a good life for her child. The defendant sees this argument as an improper appeal to sympathy, citing Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 545 (2009). Even if this portion of the argument could be described as an unjustified appeal to the jurors' sympathy, it falls short of creating a substantial risk of a miscarriage of justice, particularly compared with the Rosa case where '[i]n eight pages of closing argument transcript, the prosecutor made reference nineteen times to the victim being a firefighter or his having been on a fire engine.' Ibid. In addition, we note that the judge instructed the jury that they were 'to be completely fair and impartial and . . . not to be swayed by prejudice or by sympathy or by likes or dislikes toward either side.' See Commonwealth v. Taylor, 455 Mass. 372, 383-385 (2009). 'A prosecutor may argue 'forcefully for a conviction based on the evidence and the inferences that may reasonably be drawn from the evidence." Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000), quoting from Commonwealth v. Kozec, 399 Mass. 514, 523 (1987). Further, '[t]he entire record, including the balance of the prosecutor's argument, [is] relevant in determining whether the error was prejudicial to the point of requiring a reversal of the conviction.' Ibid. After reviewing the argument as a whole, as well as the record of this very short trial, we do not see a substantial risk of a miscarriage of justice.
The entire transcript is one hundred and one pages of text.
Judgment affirmed.
By the Court (Green, Katzmann & Hanlon, JJ.),