Opinion
21-P-319
12-07-2021
COMMONWEALTH v. Alireza NAMDARI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction of indecent exposure, as a lesser included offense of open and gross lewdness. He argues that the prosecutor misstated the evidence in her closing argument and that a substantial risk of a miscarriage of justice arose from the admission of a hearsay statement. We affirm.
The jury acquitted the defendant of wanton destruction of property.
Closing argument. The Commonwealth presented evidence that on June 26, 2018, the defendant was in the dressing room area of a Gap clothing store, being assisted by a female store employee (witness). The defendant called for her assistance several times, and, each time the witness responded, she discovered the defendant in a progressive state of undress. The final time she responded, the defendant was outside his dressing room with his pants unbuttoned and unzipped. The witness testified that she was able to see the defendant's "full pubic area" and "an inch" or "a little bit more" of his penis.
During her closing argument, the prosecutor stated that the witness had seen "full frontal," "everything," and the defendant's "genitals" and "entire genital area." The defendant argues that these were mischaracterizations of the witness's testimony and so prejudicial that his conviction must be reversed. We disagree.
Contrary to the defendant's representations, defense counsel did not object to the prosecutor's references to "full frontal" and "everything." Our review is therefore to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016). There was no error. On cross examination and recross examination, defense counsel twice asked the witness whether she had reported to the police that she had seen "full frontal," and the witness responded affirmatively. And on redirect examination, the witness testified that she "could just start seeing everything." The defendant did not object to this testimony or move to strike it. The prosecutor's comments were based in the evidence and not improper. See id. at 235.
Defense counsel herself used the term "full frontal" in closing.
Defense counsel did object to the prosecutor's comment that the witness had seen the defendant's "entire genital area." The judge sustained the objection and, with defense counsel's assent, instructed that closing arguments are not evidence and that the jury's memory of the testimony controlled. In these circumstances we review to determine whether the error, which is conceded by the Commonwealth, created a substantial risk of a miscarriage of justice. See Commonwealth v. Cooper, 100 Mass. App. Ct. 345, 354 (2021). We discern no such risk where the prosecutor immediately clarified to the jury that the witness saw "full frontal" and "one to two inches of [the defendant's] penis." We also presume that the jury followed the judge's curative instruction, see id. at 355, which was adequate to neutralize any prejudice.
Even if our standard of review is for prejudicial error as the defendant claims, we would reach the same conclusion.
Defense counsel also objected to the prosecutor's use of the word "genitals." Again with defense counsel's assent, the judge instructed that closing arguments are not evidence and that the jury's memory of the testimony controlled. Defense counsel specifically declined the judge's offer to give an additional curative instruction to strike the word "genitals." Any inaccuracy in the prosecutor's comment was cured by the judge's instruction and did not create a substantial risk of a miscarriage of justice. See Cooper, 100 Mass. App. Ct. at 355.
Hearsay statement. In response to a question about the nature of the investigation, a detective testified, without objection, that "two employees at the Gap store reported someone allegedly exposed themselves and destroyed a pair of pants." Accepting that this testimony should not have been admitted without a limiting instruction, as the Commonwealth concedes, we discern no substantial risk of a miscarriage of justice. The statement was brief and qualified by the word "allegedly." Also, the jury acquitted the defendant of wanton destruction of property, indicating that they did not consider the statement for the truth of the matter asserted. See Commonwealth v. Sherman, 481 Mass. 464, 478 (2019).
Judgment affirmed.