Opinion
12-P-0974
04-15-2014
COMMONWEALTH v. EUSEBIO QUINTANA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Eusebio Quintana, was convicted of indecent assault and battery on a child under the age of fourteen. He appeals, arguing that improper statements in the prosecutor's closing argument created a substantial risk of a miscarriage of justice. He also contends that he did not receive adequate notice of the specific date for the alleged offense, also creating a substantial risk of a miscarriage of justice. We affirm.
Prosecutor's closing argument. The defense strategy at trial was to attack the victim's credibility, pointing to her delayed disclosure and also to inconsistencies between her trial testimony and earlier statements she had made to the police. Counsel argued to the jury that the victim remembered 'selective details' about the incident, that is, only 'the details that she wanted to remember, the details that she believed that she testified to (sic), would enhance her testimony.' Counsel also alleged that the victim had a motive to fabricate the assault because she made the allegations at a time when her father, who had not been involved in her life, began spending time with her. The defendant now argues that the prosecutor's closing argument 'appealed to the sympathy of the jury, improperly bolstered the [victim's] credibility, and assumed facts not in evidence.' The prosecutor began her argument, 'I said to you in my opening argument that this was a case about a betrayal of trust. I said it, but [the victim] lived it.' In the view of the defendant, this statement, and what followed, impermissibly was intended to create sympathy for the victim; for support he cites Commonwealth v. Mejia, 463 Mass. 243, 253 (2012). We disagree. The fact that the prosecutor spoke about the victim as a young girl, who had lived with a man she called uncle for most of her life and who had been abused by that family member was, as the Commonwealth argues 'a fair characterization of the evidence.' The argument criticized in Mejia, but found not to 'give rise to prejudicial error requiring reversal,' was very different and much stronger. We are satisfied that this part of the prosecutor's closing argument 'falls within the category of permissible rhetoric and that there was no error.' Id. at 255.
He argued to the jury, 'I submit . . . this young woman - young girl that wanted a relationship with her father, wanted his attention, wanted him to come into her life. And then these accusations surfaced at police interviews was about the same time that he did.'
There was no objection at trial to any part of the prosecutor's closing argument.
Next, the prosecutor agreed with the defendant that the only issue in the case was the victim's credibility. In asking the jury to believe her, the prosecutor argued that the victim had no motive to lie, that her family life had changed, and that people who were important to her likely were no longer close to her after her report of the defendant's abuse. This, too, was a fair inference from the evidence and a fair response to the defendant's closing argument suggesting a motive to fabricate the charges.
'We evaluate remarks made during closing argument in light of the entire argument, the judge's instructions to the jury, and the evidence at trial.' Commonwealth v. Nee, 83 Mass. App. Ct. 441, 448 (2013). It is true that a 'prosecutor may not . . . suggest to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify.' Commonwealth v. Ramos, 73 Mass. App. Ct 824, 826 (2009), quoting from Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). However, '[c]ontrary to the defendant's broadest contention, there is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie.' Helberg, id. at 179. See Commonwealth v. Ramos, supra, quoting from Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) ('A prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses . . . '). Considering the argument as a whole, we discern no error, much less any error that gives rise to a substantial risk of a miscarriage of justice.
Immediately after the closing arguments concluded, the judge instructed the jury to 'consider only the testimony of that witness on that stand' and not 'anything referred to by counsel'; that 'the opening statements of the attorneys and the closing statements of the attorneys, are argument; they're only that. These attorneys were not under oath; they did not testify. So it's your memory and your judgment as to the testimony of the witness who was here that controls and you're not to speculate about anything else.'
Adequate notice of charges. The defendant also argues that, because he was not provided with notice of the specific date of the alleged offense, he was unable properly to prepare a defense and therefore deprived of his right to a fair trial. He contends that, had he been given at least the 'season' in which the victim alleges the one incident of sexual assault occurred, he might have been able to provide an alibi and/or produce a witness to testify in his defense.
The defendant did not file a motion to dismiss for lack of specificity in the complaint.
The complaint alleges that the offense occurred sometime between September 1, 2005, and June 30, 2006; the victim testified that it happened while she was in sixth grade, but she could not recall a specific date. She said the weather 'wasn't cold. It was mild,' and that she and her family stayed living in the defendant's house 'about a month longer' after the assault occurred.
The defendant does not allege that the Commonwealth withheld any information in its possession.
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'The time and place of the commission of the crime need not be alleged [in the complaint] unless it is an essential element thereof.' Commonwealth v. Roby, 462 Mass. 398, 403-404 (2012), quoting from G. L. c. 277, § 20. 'The time of the offense is not an element of indecent assault and battery, so there is no statutory requirement that the Commonwealth allege or prove specific dates or times.' Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 573 (2006). Here, we are persuaded that the time frame provided was sufficient to satisfy due process. 'The claimed lack of precision in the [complaint] did not bear on the central question before the jury concerning the credibility of the victim [].' Commonwealth v. Sineiro, 432 Mass. 735, 738 (2000).
Judgment affirmed.
By the Court (Grasso, Cohen & Hanlon, JJ.),