COMMONWEALTH v. MICHEL (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant was convicted of assault and battery and sentenced to a one year term of probation.² On appeal, the defendant contends that the prosecutor exceeded the bounds of proper argument by vouching for the credibility of a witness in her closing remarks to the jury. We affirm.

The charges stemmed from a physical altercation between the defendant and Christine Michel.³ At trial there was no dispute that the two had a fight; the question before the jury was whether the defendant acted in self-defense. The incident occurred in the front yard of Christine's mother, Brenda Wilks. Wilks testified that she saw the defendant “pull” and “pound[ ]” Christine in the head. She also stated that the defendant hit her on the hand when she opened the porch door to let Christine inside. See note 1, supra. Both Christine and the defendant were charged with criminal offenses as a result of the incident.

During her closing argument, the prosecutor urged the jury to conclude that Wilks was a credible witness. Specifically, at various points, the prosecutor commented as follows: “Ms. Wilks testified credibly”; “[t]he witness is obligated to tell you the truth and that is what Ms. Wilks has done”; “[s]he was nothing but credible on that stand”; and “Brenda Wilks is a credible witness.” The record is unclear whether trial counsel objected to the remarks quoted above, but we are not hampered by a lack of clarity in this regard because, even if we were to assume that there was an objection, we discern no error.

It is true that a prosecutor may not vouch for the credibility of a witness. Commonwealth v. Trinh, 458 Mass. 776, 786 (2011). “Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.” Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Here, although the wiser course would have been to preface the challenged remarks with “I suggest,” it is clear that, when the remarks are viewed in context, the prosecutor was arguing that Wilks should be believed for reasons other than the prosecutor's personal belief in Wilks's credibility. Furthermore, the prosecutor did not suggest that she had knowledge independent of the evidence presented in the case.

Judgment affirmed.

FOOTNOTES

2.   The defendant was acquitted of assault and battery on a person over the age of sixty, arising from the same incident but involving a different alleged victim, Brenda Wilks. A second charge of assault and battery was dismissed by the Commonwealth.

3.   Given that the victim has the same surname as the defendant, we use the victim's first name.