Opinion
10-P-1503
10-14-2011
COMMONWEALTH v. ROBERT ROSARIO.
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
The defendant, Robert Rosario, was convicted of stalking in violation of a restraining order, G. L. c. 265, § 43(b); breaking and entering a dwelling in nighttime with the intent to commit a felony, G. L. c. 266, § 16; three counts of intimidation of a witness, G. L. c. 268, § 13B; four counts of violation of a restraining order, G. L. c. 209A, § 7; and three counts of assault and battery, G. L. c. 265, § 13A.
The defendant appeals from these convictions, arguing that remarks made by the Commonwealth during its closing argument concerning the absence of testimony from the victim's mother and brother created a substantial risk of a miscarriage of justice. We disagree, and affirm the convictions.
Discussion. In this case, a missing witness instruction was given to the jury by the trial judge. The instruction allowed the jury to draw an adverse inference against the noncalling party, in this case the Commonwealth, based on the absence of testimony at trial from the victim's mother and brother. Defense counsel later referred to the absence of the family's testimony in his closing argument: 'You . . . didn't hear from people that you should've expected to hear from . . . . You would expect the Commonwealth to call those people closest to [the victim]. You would expect them because they all in one way witnessed something, but none of them are here.'
The Commonwealth responded to these statements in its own closing argument by posing the following questions regarding the mother and brother of the victim: 'Where are they? Well, ask yourself these questions. What did they know about [the victim's] and the defendant's relationship? . . . Did they know about the history between the defendant and [the victim]? Did they know how fearful [the victim] was of the defendant? [The victim] testified and she told you that she was not only in fear of her own life but she was in fear of her own family's life.'
The defense did not object to this argument, and we therefore review to determine whether the statements, if improper, created a substantial risk of a miscarriage of justice. Commonwealth v. Bonds, 445 Mass. 821, 836 (2006). We conclude that there was no such risk.
'In determining whether an argument was improper, we examine the remarks 'in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Miller, 457 Mass. 69, 79 (2010), quoting from Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005). A prosecutor's closing may properly contain 'inference[s] drawn from the evidence.' Commonwealth v. Smith, 450 Mass. 395, 408 (2008). In this case the evidence permitted the inferences made by the prosecutor. The victim testified in reference to herself and her brother that 'we were afraid of him,' and also that she was 'afraid for her life and for her family.' These statements together provided an appropriate basis for the prosecutor's closing remarks.
Further, the prosecutor's closing 'fairly responded to defense counsel's argument.' Smith, 450 Mass. at 408. In this case defense counsel suggested to the jury that they draw an adverse inference from the absence of the two witnesses, just as the earlier jury instruction had permitted them to do. A prosecutor is entitled to respond to an argument made by defense counsel in his closing argument. See Miller, 457 Mass. at 79. The Commonwealth did so by suggesting in closing that the jury infer alternative reasons for the absence of the victim's family members, and such a suggestion was warranted based on the evidence at trial.
Judgments affirmed.
By the Court (Trainor, Brown & Carhart, JJ.),