Opinion
10-P-1909
03-07-2012
COMMONWEALTH v. SLOAN WARE.
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
Discerning no merit in the defendant's claims of error, we affirm his conviction on four counts of indecent assault and battery on a child under the age of fourteen. We address the defendant's claims in turn.
By letter filed in this court on September 19, 2011, the defendant withdrew the bulk of the argument made in the first section of his brief. Even if error, we discern no substantial risk of a miscarriage of justice arising from the issue raised in the remainder of his argument in that section, for substantially the reasons in the Commonwealth's brief at pages fourteen to sixteen. Simply put, the victim's note is at best ambiguous in its possible reference to previous assaults by the defendant against others, and seems more likely to be intended to refer to the delay between the defendant's assaults against the victim and her disclosure of them to her mother.
There is no merit to the defendant's claim of a violation to his right to a speedy trial, for substantially the reasons explained in the Commonwealth's brief at pages eighteen to thirty-three. As the Commonwealth observes, significant portions of the delay were attributable to the defendant's efforts to obtain discovery, including his efforts to obtain copies of records from the then-denominated Department of Social Services and his efforts to subpoena records from third parties, pursuant to Commonwealth v. Lampron, 441 Mass. 265 (2004). Moreover, the defendant has shown no prejudice resulting from any delay.
Now named the Department of Children and Families.
At oral argument, the defendant suggested (without supporting authority) that the time consumed by his unsuccessful appeal from the denial of his Lampron motion to the Supreme Judicial Court should be attributable to the Commonwealth. The argument lacks not only authority, but logic.
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Similarly, there is no merit in the defendant's claim that the prosecutor improperly bolstered the victim's credibility by commenting in his closing argument on the absence of any motive to lie. As we have observed, '[t]here is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie.' Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009), quoting from Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). Read in context, the prosecutor's argument made no suggestion that the victim's testimony deserved greater credence by reason of her willingness to come into court and face the rigors of public testimony. Compare Commonwealth v. Beaudry, 445 Mass. 577, 586-587 (2005). Contrast Commonwealth v. Ramos, supra at 826-827. Instead, the prosecutor merely responded to attacks by the defendant's trial counsel on the victim's credibility, arguing from the trial evidence why her testimony should be believed. There was nothing improper about the argument, so the defendant's criticism of the trial judge's failure to administer a curative instruction is misplaced.
Judgments affirmed.
By the Court (Green, Brown & Agnes, JJ.),