Opinion
19-P-78
12-03-2019
COMMONWEALTH v. Craig A. SCOTT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of two counts of assault by means of a dangerous weapon. He appeals, claiming that the prosecutor's use of the word "baseless" in closing argument was impermissible. We affirm.
The jury acquitted the defendant of the charges of assault and battery and assault and battery by means of a dangerous weapon. The defendant had also been charged with carrying a firearm without a license. The Commonwealth filed a nolle prosequi on this charge.
Background. The jury could have found the following facts. On March 1, 2016, an employee of Cape Auto Repair (shop), saw the defendant walk out of the woods located behind the shop. After a brief discussion with the defendant, the shop employee led the defendant into the office to speak with the shop owner. Once in the shop, the defendant pointed a gun at the shop owner and told him he was there to collect $1,500. Thereafter, the defendant pulled out a bat and struck the shop employee in the chest with it. A struggle ensued, and the defendant hit the shop owner in the head with the bat. The shop employee and owner contained the defendant until the police arrived.
As is relevant to the issue here, the defendant testified that he had been sexually assaulted by the shop owner a week prior to the incident. He said that he went to the shop with the intention of approaching the shop owner about the alleged sexual assault and brought a gun with him. The shop owner testified that he had never met the defendant prior to the day of the assault, and that there was no "validity" to the allegation. During closing argument, the prosecutor said that "the notion that [the defendant] was sexually assaulted a week prior is completely baseless" and the defendant "made up that story ... in a self-serving manner to try to mitigate his circumstances and explain or rationalize his conduct in this case, for the crimes he committed."
Discussion. Because there was no objection at trial, we review the challenged statement to determine if error, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 9 (2019).
The defendant contends that the use of the word "baseless," in describing the defendant's testimony of the alleged sexual assault, suggested that the prosecutor was privy to facts not in evidence. He argues that the characterization of the defendant's testimony as "baseless" was not a fair inference from the evidence, and as such, created a substantial risk of a miscarriage of justice. We are not persuaded.
Closing arguments "must be limited to discussion of the evidence presented and the reasonable inferences that can be drawn from that evidence." Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). Statements "made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). "[P]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it," Commonwealth v. Drayton, 386 Mass. 39, 52 (1982), and those inferences need only be reasonable and possible, Commonwealth v. Casale, 381 Mass. 167, 173 (1980).
The prosecutor did not improperly vouch for the witnesses by implying he had knowledge independent of the evidence presented at trial. The issue of the alleged sexual assault was introduced by the defendant to justify his actions. The prosecutor's use of the word "baseless" was an attempt to argue that the jury should credit the witnesses for the Commonwealth. See Commonwealth v. Gaudette, 441 Mass. 762, 767 (2004) (prosecutor may "impugn the defendant's credibility and argue that his testimony was a fabrication" [quotation and citation omitted] ). Considering the closing argument as a whole, the judge's instructions to the jury that closing arguments are not evidence, and the evidence at trial, there was no error. Moreover, the jury acquitted the defendant on some charges, indicating that the jury understood and followed their charge.
Improper vouching "occurs when a prosecutor expresses his or her own belief in the credibility of witnesses or implies that he or she has knowledge independent of the evidence presented at trial." Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009). See Mass. G. Evid. § 1113(b)(3) (2019). "It is not considered improper vouching if a prosecutor draws inferences about a witness's credibility from the evidence." Sanchez, 96 Mass. App. Ct. at 10.
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Judgments affirmed.