Opinion
No. 11–P–1488.
2013-03-12
COMMONWEALTH v. Aaron L. PARKER.
By the Court (CYPHER, KANTROWITZ, FECTEAU JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions for accosting or annoying a person of the opposite sex and for indecent exposure. He complains of improper statements by the prosecutor in his closing argument on behalf of the Commonwealth. We affirm.
A third offense, indecent assault and battery, was also charged, but before trial was reduced to an assault and battery; the defendant was acquitted of that offense.
We turn first to the defendant's contention that his claims of error were preserved, notwithstanding that there was no objection lodged to the prosecutor's comments, on the ground that the judge is alleged to have barred objection during opening and closing statements. We are unpersuaded. The judge stated to the lawyers that they should not interrupt each other. We fail to view such a statement as the equivalent of a judge's order barring all objections. Even if we were to view the statement as a prohibition of contemporaneous objection during closings, the defendant has failed to show that an objection would have been likewise barred if made at the conclusion of the argument. Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (“Objection made at the conclusion of the prosecutor's argument normally preserves the defendant's right of appeal”). Therefore, we consider this claim under the standard for unpreserved claims of error. The defendant contends that the prosecutor made two improper statements to the jury during his closing argument, the first saying: “I submit to you that the testimony Mr. Parker provided you today was not the entire truth.” He contends that such a statement amounts to impermissible vouching. Contrary to the defendant, we instead view this statement, in the context of the entire argument, as permissible comment on the credibility of the defendant's testimony. See Commonwealth v. Polk, 462 Mass. 23, 39 (2012), and Commonwealth v. Szczuka, 391 Mass. 666, 673 (1984), S.C., 413 Mass. 1004 (1992).
The defendant's challenge to a second statement of the prosecutor, on the grounds of impermissible burden shifting, is similarly without merit. The prosecutor stated: “I don't think he even provided us a reason that you could perhaps infer from his testimony that it was because she wanted to engage in a relationship with him.” When viewed in isolation, the statement certainly appears inartful; however, when considered in the context of the entire argument and the evidence in the case, it was fair comment on the credibility of the defendant's version of the events in question. See Commonwealth v. Szczuka, supra. Implicit in the defendant's testimony was a thinly veiled suggestion that the victim's accusations were fabricated, and that she was in effect retaliating against him for rejecting her romantic invitations. In context, the prosecutor was not calling upon the defendant for an explanation but instead stated, rhetorically, that the defendant's explanation for the victim's accusation was entirely unworthy of belief.
Consequently, in the circumstances of this case, as we fail to view the prosecutor's statements as improper, there is no basis to disturb the judgment under the standard of review for either preserved or unpreserved claims of error.
Judgments affirmed.