Opinion
14-P-412
09-08-2015
COMMONWEALTH v. CARLOS QUINONES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from his convictions after a jury trial on three counts of rape of a child, G. L. c. 265, § 23, and three counts of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. He brings two challenges. First, he asserts the trial judge erred when she failed to grant a mistrial after the victim testified to prior bad act evidence that the judge previously excluded when acting upon the defendant's pretrial motion in limine. Second, the defendant contends the prosecutor improperly bolstered the victim's credibility during his closing argument. We affirm.
1. Motion for mistrial. At the time of trial in April, 2013, the defendant was thirty-eight years old and the victim -- his niece -- was just shy of thirty-one years old. The rape indictments concerned events alleged to have occurred years earlier between March 26, 1992 (when the defendant had turned seventeen) and before May 11, 1998 (when the victim had turned sixteen). The indecent assault and battery indictments charged events alleged to have occurred between the defendant's seventeenth birthday and the victim's fourteenth birthday, May 11, 1996. In his motion in limine, the defendant sought, in part, to exclude evidence of prior bad acts, including sexual acts, that occurred before the defendant's seventeenth birthday, and the judge allowed that portion of the motion.
During his direct examination, the prosecutor asked the victim about a conversation she had in 2010 about the abuse with an investigator from the Department of Children and Families (DCF). Specifically, the prosecutor asked, "Did you tell her [(the DCF investigator)] approximately how old you were at the time?" The victim answered, "Yes," and the prosecutor next asked, "Do you remember what you told her?" to which the victim responded, "I told her about eight or nine." The defendant did not object to the prosecutor's question, but requested a sidebar conference. At that time, the defendant moved for a mistrial, but did not move to strike the answer. The defendant also opposed the judge's proposal of a curative instruction, and the judge gave no curative instruction. The trial ensued. After the jury returned their verdicts, the defendant renewed his request for a mistrial. Again, the judge denied his request.
We review the judge's orders denying the motions to declare a mistrial for abuse of discretion, and see none. See Commonwealth v. Garrey, 436 Mass. 422, 435 (2002) (standard of review). First, since the defendant did not move to strike the testimony and opposed the judge's offer to give a curative instruction, he "cannot complain of the judge's failure to take these actions." Commonwealth v. Simmonds, 386 Mass. 234, 242 (1982). Second, the judge could also have reasonably concluded that the statement supported the defense theory that the victim could not be believed given that the victim's claim that she told the DCF investigator the abuse started at eight or nine contradicted her later testimony that the abuse commenced when she was twelve. Lastly, the statement was brief, and neither party referenced it again; therefore, the judge could aptly conclude it had limited prejudicial effect. See, e.g., Commonwealth v. Martinez, 437 Mass. 84, 90 (2002) (trial judge "in the best position to determine likely prejudice"). Therefore, we perceive no abuse of discretion.
We see no merit in the defendant's unpreserved claims that the prosecutor implicitly referred to the challenged statement in his opening and closing statements to the jury, as we see no such reference.
2. Closing argument. The defendant contends the prosecutor improperly suggested to the jury that the victim should be believed simply because she testified in court, and further inappropriately vouched for the victim's credibility when he argued to the jury: "She answered [the DCF investigator] honestly. 'Yeah, I have [been sexually assaulted].'" (Emphasis added.) The Commonwealth concedes, and we agree, that part of the closing argument, particularly the prosecutor's suggestion that the victim should be believed "simply because she testified in court" was improper. Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). Nevertheless, we perceive no substantial risk of a miscarriage of justice flowing these remarks. See Commonwealth v. Jones, 471 Mass. 138, 148 (2015). "[C]onsidering [them] in context, as we must, we observe that they occurred in the course of an otherwise unobjectionable closing" and largely in response to defense counsel's attack of the victim's credibility. Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013) (citation omitted). See Commonwealth v. Cohen, 412 Mass. 375, 383 (1992) ("fleeting" comment in otherwise proper argument not likely to cause prejudice).
The prosecutor argued: "I ask you that in assessing [the victim's] credibility, . . . ask yourself why . . . would she make this up? Because of DCF? . . . Do you think it was easy for her to come in and talk to this group of . . . 14 strangers . . . ? You think that was easy for her? So why would she do it?"
The defendant did not object to the prosecutor's closing argument at trial.
In addition, the prosecutor urged the jury to pay close attention to the judge's jury charge concerning credibility. "Here, the judge informed the jury that it was their job to determine the facts based only on the evidence, told them that closing arguments were not evidence, instructed the jury that they were to determine whether the Commonwealth had proved its case against [the] defendant based solely on the testimony of the witnesses and the exhibits, and charged the jury regarding what they could consider in determining the credibility of the witnesses." Commonwealth v. Leach, 73 Mass. App. Ct. 758, 767 (2009). Contrast Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826-827 n. 3 (2009) (where, unlike here, the error was preserved and "the judge's standard instruction, to the effect that 'arguments are not evidence,' was inadequate to neutralize the prejudicial effects of the prosecutor's improper remarks"). Moreover, the Commonwealth's evidence included testimony that the defendant told the victim's father (the defendant's brother), after being confronted with the allegations, that "if [the defendant's brother] wanted to kill him, [he] could kill him." "[T]he case against the defendant was quite strong." Commonwealth v. Rock, 429 Mass. 609, 616 (1999).
Judgments affirmed.
By the Court (Green, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 8, 2015.