Opinion
16-P-430
05-17-2017
COMMONWEALTH v. EDUARDO VARANDA.
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
On appeal after his conviction of rape of a child, the defendant claims that improprieties in the prosecutor's closing argument created a substantial risk of a miscarriage of justice, entitling him to a new trial. We discern no cause to disturb the judgment, and affirm.
Comment on weakness of defense case. Defense counsel did not object at trial when the prosecutor commented, during closing argument, that there was no evidence to support the defense attorney's suggestion that the presence of the defendant's sperm on the victim's bed comforter could have resulted from consensual sexual intercourse between the defendant and the victim's stepsister on the victim's bed. Because the defendant did not object at trial, we consider whether the comment, if error, created a substantial risk of a miscarriage of justice. See Commonwealth v. Shanley, 455 Mass. 752, 773 (2010). Viewed in context, and in light of the defendant's argument made without supporting evidence, we consider the comment to be "a proper reflection on the weakness of the defendant's case." Commonwealth v. Cassidy, 470 Mass. 201, 225 (2014). See Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 871 (2007). Moreover, the judge's instructions to the jury made clear that the defendant bore no burden of production or proof, and that the burden of proof never shifts from the Commonwealth. There was no error, and accordingly no substantial risk of a miscarriage of justice.
The stepsister's bed was in a different bedroom.
We note that the defendant also received the benefit of a so-called Bowden instruction regarding his claim that the police investigation was deficient. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).
Comment on first complaint testimony. There was likewise no error in the prosecutor's comment, during closing argument, that the jury should consider the first complaint testimony as supportive of the victim's credibility. The core purpose of first complaint testimony, and rationale for its admissibility, is "to help counterbalance the continuing inaccurate assumptions about delayed reporting by victims of sexual assaults, which may lead juries to view skeptically statements by rape victims if the assault is not reported contemporaneously." Commonwealth v. Kebreau, 454 Mass. 287, 292 (2009). In addition, the trial judge correctly instructed the jury on the proper use of the first complaint testimony in assessing the credibility of the victim, both at the time it was admitted and at the close of the evidence.
As with the defendant's first claim of error, defense counsel did not object at trial, so we consider whether any error gave rise to a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Green, Wolohojian & Sacks, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 17, 2017.