Opinion
19-P-751
01-29-2021
COMMONWEALTH v. UMAR MUHAMMED.
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
Following a jury trial, the defendant was convicted on charges of dissemination of matter harmful to minors, open and gross lewdness, rape of a child, and indecent assault and battery on a child under fourteen years of age. On appeal, the defendant contends that the prosecutor, in closing argument, improperly vouched for the credibility of the witnesses, spoke disparagingly of defense counsel, and suggested that the jury convict on less than sufficient evidence. Discerning in the defendant's various arguments no cause to disturb the judgments, we affirm.
The jury returned a verdict of not guilty as to two charges of aggravated rape of a child.
"A prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses and disbelieve those testifying for the defendant." Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). Furthermore, and contrary to the defendant's argument, "there is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie." Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). Rather, a prosecutor may argue that a witness has no motive to lie, as "a fair response to an attack on the credibility of a government witness." Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008), quoting Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). Helberg, supra. Such argument does not impermissibly shift the burden of proof to the defendant. See Chavis, supra at 714 n.15.
In closing, defense counsel repeatedly emphasized the inconsistencies in the first and second victims' accounts and attacked their credibility. Additionally, defense counsel attempted to bolster the credibility of the defendant and argued that the first and second victims had a motive to lie. It was proper for the prosecutor, thereafter, to respond to defense counsel's attack on the credibility of the two victim witnesses. See Smith, 450 Mass. at 408; Chavis, 415 Mass. at 713. The prosecutor appropriately "invite[d] the jury to consider whether the [witnesses] had a motive to lie and . . . identif[ied] evidence that demonstrate[d] that the [witnesses'] testimony [was] reliable." Commonwealth v. Dirgo, 474 Mass. 1012, 1014 (2016). Furthermore, this argument did not constitute impermissible vouching, as the prosecutor did not suggest that she held "personal knowledge of reasons unknown to the jury why the child witnesses should be believed" or suggest, implicitly or explicitly, "that the witnesses should be afforded greater credibility by reason of their willingness to come into court and testify." Helberg, 73 Mass. App. Ct. at 180.
We discern no merit in the defendant's contention that the prosecutor's closing argument impermissibly shifted the burden of proof to the defendant by rhetorically questioning which party had a motive to lie. See Commonwealth v. Cassidy, 470 Mass. 201, 226 (2014) (outlining typical situations where prosecutor's closing argument shifts burden of proof to defendant). The argument was a lawful response to defense counsel's closing argument. See Chavis, 415 Mass. at 714 n.15.
Beyond being an appropriate response to the defense's attack on the witnesses' credibility, the prosecutor's remarks were also a fair reference to evidence elicited by defense counsel. During cross-examination, defense counsel attacked the credibility of the second victim and questioned whether "[l]ying is something that comes very natural for you, isn't that right?" The second victim specifically responded that she had nothing to gain by testifying and that she had no motive to lie. The prosecutor's argument, therefore, was grounded in the evidence, and the prosecutor was permitted to marshal this evidence in closing to respond to defense counsel's attack on the credibility of the witness. See Beaudry, 445 Mass. at 587; Chavis, 415 Mass. at 713.
Likewise, we discern no merit in the defendant's contention that the prosecutor, in closing, disparaged defense counsel. The prosecutor properly highlighted the second victim's reaction to defense counsel's questioning and did not disparage defense counsel personally or "characterize [defense] counsel as 'obscuring the truth or intentionally misleading the jury.'" Commonwealth v. Lewis, 465 Mass. 119, 130 (2013), quoting Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002). In any event, the trial judge immediately provided a curative instruction to the jury, despite not agreeing that the prosecutor disparaged defense counsel, thereby mitigating any potential prejudice to the defendant.
Finally, the prosecutor properly commented on the lack of physical evidence in the case. The argument was not, as the defendant contends, an invitation to convict on less than sufficient evidence, but was a direct response to defense counsel's argument that there was no tangible or forensic evidence. See Smith, 450 Mass. at 408. Additionally, the argument was properly grounded in the evidence, as both victims testified that they were alone with the defendant in private locations when the crimes were committed.
Judgments affirmed.
By the Court (Green, C.J., Kinder & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 29, 2021.