Opinion
20-P-702
07-22-2021
COMMONWEALTH v. NEVIN N., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile was charged with assault and battery on a family or household member and was found delinquent after a jury trial. See G. L. c. 265, § 13M ; Commonwealth v. Dustin, 476 Mass. 1003, 1004 (2016). On appeal, the juvenile contends that (1) the prosecutor misstated the evidence in her closing argument and improperly vouched for the credibility of the third party witness; and (2) the intent instruction was erroneous and the trial judge erred in failing to give an instruction regarding age. We affirm.
The juvenile was charged with two counts of assault and battery on a family or household member, G. L. c. 265, § 13M, and was found not guilty on the first count, alleged to have occurred on March 4, 2019.
Background. The primary issue at trial was whether physical contact between the juvenile and his girlfriend was intentional or accidental. We summarize the evidence as presented to the jury, noting the facts as the jury could have found them. See Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 2 (2019). The juvenile was in a relationship with a girl who attended the same high school. They became friends at fourteen and began dating when they were sixteen years old. The relationship waxed and waned over the two years. More recently, the relationship devolved into daily arguments, in which they yelled at one another, over "little things, big things."
On the evening of March 12, 2019, the girl discovered that the juvenile sent explicit photographs to an ex-girlfriend. The two argued via text messages and on the social media application Snapchat. The argument continued until the juvenile agreed to speak with her at school the next day.
They met at the school the next day. She wanted to talk to him about the photographs, but the juvenile said that the relationship was over. The juvenile began to walk away, and she pursued him down the hallway, blocking his path. The juvenile either slapped or punched the girl on the jaw. A video of the incident was shown to the jury, although the moment of contact was obscured.
Whether she partially or fully blocked his path was disputed.
According to the girl, she next caught up to the juvenile at the doors to the school annex. They left the building and walked side by side. As they reached a fence, the juvenile spun around and his elbow "connected" with her nose, which bled profusely. He apologized and said it was an accident. The girl ran back into the building. A teacher took her to the nurse's office.
The teacher had been sitting in her car in a nearby parking lot talking to her father on a cell phone when the two teenagers left the school building. The teacher watched as they crossed the parking lot, with their arms down by their sides, and reached a gate. She saw an "arm go up," the girl's hands go up to her nose, and blood. The teacher did not see the moment or point of impact because a gate post obstructed her view. The teacher went back in the school and spoke with the girl. The girl initially told the teacher that the contact was accidental, but later changed her statement when she spoke to police.
The juvenile testified that the night before the incident, his girlfriend told him that if he did not speak with her at school she would "tell everybody what I did and what type of person I am." When she got to school on March 13th, she told him she would tell the whole school everything regardless of what he did. He tried to leave and claimed he only attempted to squeeze past her, but that he had to "kind of like push[ ] her away" because "she wasn't budging, she wasn't moving." He also testified that once they left the building and started walking, she "grabbed [his] shoulder." He "lifted [his] arm to get [her hand] off of [his] shoulder" and turned around, inadvertently elbowing her in the nose.
At trial, the girl said she was referring to the breakup. The juvenile testified that she was threatening to tell others about the explicit photographs.
Discussion. 1. Closing argument. In her closing argument, the prosecutor summarized the teacher's testimony, and the inferences that could be drawn from it, as follows:
"And [the teacher] told you that she saw their hands down by their side, she saw that flash of movement, and [the girl's] hands come up to touch her nose. She did not see [the girl's] hand up on his shoulder. She saw them down at her sides and then come up to stop the bleeding that was the result of [the juvenile] elbowing her in the face."
The juvenile contends that the prosecutor misstated the facts and "falsely suggest[ed] that [the teacher] observed the point of contact and that the contact was intentional." The juvenile did not object to the closing argument at trial. We review to determine if there was error, and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 233 (2013).
a. Misstating the evidence. The prosecutor did not misstate the evidence. "In closing argument, a prosecutor may analyze the evidence and suggest reasonable inferences the jury should draw from that evidence." Commonwealth v. Semedo, 456 Mass. 1, 13 (2010). The teacher stated that she did not see the point of impact because her view was blocked by the post. The teacher's testimony was clear as to what she did and did not see. We reject the juvenile's contention that the jury were misled.
Moreover, the teacher's view was obstructed only "[f]or about a second." Before the juvenile and his girlfriend reached the post, the teacher saw that their arms were "down." Afterwards, she saw the girl put both hands to her nose. It was a fair inference based on all the evidence, including the teacher's observations and the girl's testimony, that the girl did not put her hand on the juvenile's shoulder, and that the juvenile struck her. See Commonwealth v. Joyner, 467 Mass. 176, 189 (2014) ; Semedo, 456 Mass. at 13 (prosecutor's "reference to the inference was within the bounds of proper argument"). Furthermore, the judge properly instructed the jury that closing arguments were not evidence. We presume that the jury "understand the instructions from the judge." Commonwealth v. Kolenovic, 478 Mass. 189, 200 (2017), quoting Commonwealth v. Kozec, 399 Mass. 514, 517 (1987).
b. Improper vouching. The juvenile also contends that the prosecutor improperly vouched for the credibility of the teacher, whose credibility was not challenged by the juvenile in his closing argument. The prosecutor argued:
"Think about the stake that [the teacher] has in this case. Does she have any stake in the outcome? Would she have any motive to lie? She was just sitting in her car talking to her dad and she told you what she saw that morning. And you saw how she testified and how what she saw affected her. She was upset by what she saw, and you saw that today. [Par.] This is not an accident."
The juvenile objected to this portion of the prosecutor's closing argument. The judge ruled, "Number one, it probably shouldn't have been said that way. But, number two, I don't think it rises to the level that it tanks the proceedings whatsoever. And, therefore, I'm going to leave it the way it stands." We review that ruling for prejudicial error. Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 290 (2003).
Prosecutors are "not permitted to vouch for a witness's credibility" (citation omitted). Sanchez, 96 Mass. App. Ct. at 10. "Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).
We agree with the trial judge that this argument could have been better phrased. A prosecutor may refer to a witness's "lack of motive to lie and do so by asking rhetorical questions relying on the evidence presented." Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). See Sanchez, 96 Mass. App. Ct. at 10. In the usual case this issue arises in the context of retaliatory reply. Commonwealth v. Goitia, 480 Mass. 763, 775 (2018) ("The evidence presented to the jury required them to decide between conflicting versions of events, and the prosecutor properly could argue which version of the evidence was more credible"). Here, however, the teacher's credibility was not at issue, only the inferences to be drawn from her uncontested observations. Nevertheless, we cannot say that the prosecutor was categorically barred from arguing what was persuasive about her case. The statement, "[s]he was upset by what she saw, and you saw that today," was a permissible comment on demeanor. See Commonwealth v. Casbohm, 94 Mass. App. Ct. 613, 623 (2018). "Last, the judge's careful and clear instructions concerning the role of the closing arguments and how to determine the credibility of witnesses adequately offset any semblance of impropriety." Commonwealth v. Brewer, 472 Mass. 307, 315 (2015), citing Commonwealth v. Mitchell, 428 Mass. 852, 857-858 (1999).
2. Jury instructions. a. Intent. The instructions included a comparison of general and specific intent using language that was disapproved in Commonwealth v. Sibinich, 33 Mass. App. Ct. 246, 249 n.1 (1992), and Criminal Model Jury Instructions for Use in the District Court 3.120 (2009). In addition, although the judge used the term specific intent, the instruction given by the judge was consistent with the appropriate instruction on general intent. There was no objection at trial. Accordingly, we review to determine whether there was "error and, if so, did it give rise to a substantial risk of a miscarriage of justice." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 182 (2001). "A substantial risk of a miscarriage of justice exists when we have ‘a serious doubt whether the result of the trial might have been different had the error not been made.’ " Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
Assault and battery is a general intent crime. Commonwealth v. Ford, 424 Mass. 709, 711 (1997). Cf. Commonwealth v. Deschaine, 77 Mass. App. Ct. 506, 514 (2010). Thus, the Commonwealth was obligated to "prove beyond a reasonable doubt that the [juvenile] had a general intent to do the act causing the battery, but not that he had a specific intent to injure the victim." Commonwealth v. McNulty, 458 Mass. 305, 325 (2010). See Ford, supra at 711-712. Although the trial judge described the state of mind required as "specific intent," the instruction he gave was that of general intent, that is, the "[juvenile] must have had it in his mind to do a particular act." The error was one of nomenclature, not substance. To the extent the label "specific intent" implied the Commonwealth was required to prove a more exacting level of intent, the label benefitted the juvenile. Id. Furthermore, the judge twice instructed the jury that the Commonwealth "must prove beyond a reasonable doubt what occurred was not an accident." See Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 565 (2006) ("The correct formulation of [general] intent requires a finding that the defendant intended to touch the victim"). The judge also instructed the jury properly when it asked a question about intent.
During deliberations the jury asked, "does intent mean to harm or intent to put the hands on a person?" The judge instructed using the correct definition of general intent: "the Commonwealth must prove that the defendant intended to touch -- to touch the alleged victim in the sense that the defendant consciously and deliberately intended the touching to occur and the touching was not merely accidental or negligent."
Viewing the evidence in the light most favorable to the juvenile, the "critical question ... is whether, viewing the charge in its entirety, there was a reasonable likelihood that the jury could have understood the judge's instructions to allow the [juvenile's] conviction on proof other than that he had engaged in an intentional and unjustified touching of the person of the victim" (quotation and citation omitted). Mitchell, 67 Mass. App. Ct. at 565. We are satisfied that no such likelihood is present here. See Ortiz, 53 Mass. App. Ct. at 182-183.
b. Age. for the first time on appeal the juvenile argues that the instructions should have included a reference to the juvenile's age, experience, and developing brain chemistry. "[O]ur acknowledgement that adolescents are constitutionally different from adults has been precisely limited to our consideration of juvenile sentencing, not whether a juvenile defendant is capable of committing [an offense]." Commonwealth v. Odgren, 483 Mass. 41, 48 (2019), quoting Commonwealth v. Fernandez, 480 Mass. 334, 342 (2018). The instruction was not required.
Adjudication of delinquency affirmed.