Opinion
16-P-102
05-08-2017
COMMONWEALTH v. Michael STEWART.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his conviction of a single count of assault and battery, asserting that various trial errors entitle him to a new trial. We affirm.
A New Bedford police officer was patrolling in his cruiser at night when, from approximately thirty feet away, he observed the defendant, who was standing on the sidewalk, "smack" his girl friend, the victim, on the side of her face with an open palm. The officer exited his cruiser and spoke to both parties; the victim "appeared very upset." The defendant told the officer that the victim had hit him first, although the officer had not seen the victim do so in the five to ten seconds he had observed the couple before seeing the defendant strike the victim.
The defendant was arrested, charged, and tried before a District Court jury. After the Commonwealth presented its case, the defense called the victim as a witness, and she testified that the two had "squared off" during an argument and that she had struck the defendant before he hit her. Defense counsel argued that the defendant had acted in self-defense, and the judge instructed on that issue.
Refreshing recollection of victim. The defendant first claims that the prosecutor's attempt to refresh the victim's memory on the witness stand was improper, creating a substantial risk of a miscarriage of justice. During cross-examination, the prosecutor questioned the victim about a conversation with an assistant district attorney (ADA) at a pretrial conference, inquiring whether the victim remembered the specific reason for which she had at that point sought a dismissal of the case. The victim answered that she did not recall the precise reason, so the prosecutor sought to refresh her recollection using notes taken by the ADA at that meeting. The prosecutor then elicited from the victim that she had told the ADA that she wanted the case dismissed because she did not want the defendant to go to jail.
The defendant contends that the prosecutor was required to elicit from the victim testimony that she had previously examined the notes "while the facts stated therein were fresh in [her] memory," and then confirmed that her own statements were correctly transcribed. He also posits that she was required to affirmatively state that she relied on her memory in testifying to the statement and not to the writing itself or the ADA's narration therein. No such procedure is required in refreshing the recollection of a witness. "The only prerequisite to refreshing recollection is a showing that the witness's memory is clearly exhausted." Commonwealth v. O'Brien, 419 Mass. 470, 478 (1995). See Mass. G. Evid. § 612(a)(1) (2017). This was established when the prosecutor asked the victim, "[D]o you remember what you told [the ADA] the reason why you wanted the case dismissed?" and the victim responded, "No I don't to be honest with you." No more was required.
Prosecutor's closing argument. The defendant next asserts various errors in the prosecutor's closing. In reviewing a prosecutor's closing argument for error, we consider "(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). See Mass. G. Evid. § 1113(b) & note (2017).
The defendant claims that the prosecutor inappropriately posed rhetorical questions to the jury, including, "When is it ever okay to slap a woman in the face?" According to the defendant, this and subsequent questions shifted the Commonwealth's burden of proof to the defendant. Certainly, the justification (or lack thereof) for the defendant's conduct was a central issue in the case. And it is true that rhetorical questions during closing argument are disfavored when they could be perceived as shifting the burden of proof. See Commonwealth v. Habarek, 402 Mass. 105, 110-111 (1988). Yet upon the defendant's objection, the judge appropriately and immediately gave a curative instruction to the jury, emphasizing that the Commonwealth bears the burden of proof. The judge reiterated the substance of that instruction in his jury charge. In this context, there was little possibility that the jury would interpret the prosecutor's statements as shifting the burden of proof to the defendant.
The portion of the prosecutor's closing with which the defendant takes specific issue is the following: "And naturally I would ask—I would submit this to you. Pose this question to you. When is it ever okay to slap a woman in the face? When? When she's arguing with you because she wants to go to the bar and you don't want to go to the bar? Yes, it was a silly fight, a silly argument, but that does give rise [sic], does that give legal justification for the Defendant to simply snap and slap her across the face?"
The defendant's remaining claims of improper closing argument were not preserved by timely objections and are therefore reviewed for whether any error created a substantial risk of a miscarriage of justice. The defendant first asserts that the prosecutor misstated the evidence when he characterized the defendant as "slap[ping]" instead of "hit[ting]" the victim. We disagree. The word "slap" was used multiple times during the officer's testimony without objection. Furthermore, we see no meaningful difference in this context between the various terms used, e.g., "smack," "strike," "slap," and "hit." We think it unlikely that the use of the word "slap" instead of "hit," as the defendant contends, "worsen[ed] the act and reache[d] to the emotions of the jurors." The evidence as a whole supported the prosecutor's statements, and we see no error and no prejudice, let alone a substantial risk of a miscarriage of justice.
In his testimony, the officer used the term "smack" four times and used the word "strike" five times. While posing questions on direct examination, the prosecutor said "strike" twice and "slap" five times, and the officer did not dispute either characterization. A second officer, who responded as backup, testified that the first officer told him he had seen a male "strike" a female in the face. The victim, for her part, described the defendant's action as "pushing" her face with his open hand. On cross-examination, she initially did not dispute the prosecutor's statement that she had told the officers that the defendant "slapped" her. Later, when the prosecutor asked for clarification, the victim stated that it was a push and not a slap. When called by the Commonwealth as a rebuttal witness, the first officer used both "slap" and "hit" to describe both what he saw and what the victim said to him immediately thereafter.
The defendant next contends that the prosecutor misstated the evidence by suggesting to the jury that the victim was "most believable by the officers" at the moment just after the incident, as opposed to any later point in time. We agree with the Commonwealth that the prosecutor was fairly arguing that the victim was more credible in the excitement of the immediate aftermath of the incident, as opposed to months later, when she had developed the motive to keep the defendant out of jail. This was a fair inference from the evidence that the victim changed her story to support the defendant's self-defense theory. See Commonwealth v. Raymond, 424 Mass. 382, 391 (1997), quoting from Commonwealth v. Thomas, 401 Mass. 109, 116 (1987) (prosecutor may argue to jury, based on evidence, about why witness should be believed).
As for the prosecutor's remark that the defendant "slap[ped the victim] across the street," it is difficult to imagine that the jury would interpret this as exaggerating the degree of the battery, i.e., that the defendant literally pushed the victim such a distance. Whether the prosecutor was referencing the testimony that the defendant and victim had just crossed the street before the slap occurred, or the prosecutor simply made a slip of the tongue in saying "street" where he meant "cheek" or "face," we do not think the jury would have understood the remark as referring to the force of the blow the defendant delivered. Furthermore, the judge was clear in his instructions that closing arguments are not evidence, and the testimony presented painted a clear picture of the conduct at issue, such that the jury were unlikely to be confused by the prosecutor's remark. There was no substantial risk of a miscarriage of justice.
Finally, the defendant argues that the prosecutor improperly vouched for police testimony by telling the jury, "there's no motivation for [the officer] to make up a story about what he saw." The defendant also claims it was improper for the prosecutor to state that the officer was an eleven-year veteran of the police department who had been promoted from sergeant to lieutenant (facts that were in evidence), and that he had witnessed the events at issue while in the course of performing an unrelated "good deed" of giving a ride home to an intoxicated woman. Those statements, the defendant submits, improperly bolstered the officer's credibility and invited the jury to rely on the prestige of the government and the police instead of their own evaluation of the evidence.
The Commonwealth contends that those statements were a fair response to the defendant's attempt to undermine the officer's credibility by telling the jury that the officer "saw what he thought he saw" but "only saw part of the story." We agree, as to the statement that the officer had no motivation to make up his account. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015) (statement that jury had been given "no reason to doubt" witness testimony properly responded to defense counsel's attack on witness credibility). There was no improper suggestion that the prosecutor had independent knowledge of the officer's credibility. See Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). And the judge properly instructed that the jury were the sole judges of witness credibility.
While it was unnecessary to label as a "good deed" the officer's transporting an intoxicated woman home, it was part of a fair response to the defendant's suggestion in his closing argument that the officer, in transporting the woman, was "certainly doing other things at [the] time" he observed the defendant and victim and therefore "only saw part of the story." The prosecutor's comments regarding the officer's "good deed" and his history and promotion within the department would have been better left unsaid. But the lack of objections from defense counsel suggests that, taken in context, the remarks would not likely have misled the jury or prejudiced the defendant. See Commonwealth v. Raymond, 424 Mass. 382, 392 (1997). We conclude that the remarks created no substantial risk of a miscarriage of justice.
We note that even if the jury believed the victim's testimony that she had hit the defendant first, the jury could still have found beyond a reasonable doubt that the defendant was not entitled to hit her in self-defense—that is, as stated in the judge's instructions, that the defendant "ha[d not] exhausted all other reasonable alternatives before resorting to force."
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Judgment affirmed.