COMMONWEALTH v. CAMPOS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Superior Court, defendant Roberto Campos was convicted of rape of a child in violation of G. L. c. 265, § 23. On appeal, he argues that the judge erroneously limited his ability to cross-examine the victim's mother and that the prosecutor's closing argument was improper. We affirm.

Discussion. 1. Limitation on cross-examination. Through cross-examination of the victim, the victim's brother, and the victim's mother, defense counsel established that the defendant and the victim's mother had a tumultuous relationship. The victim testified that her mother and the defendant “were always fighting” and that her mother “was bruised up” much of the time. The mother testified that the defendant was controlling, jealous, and aggressive, and that they fought frequently, although she believed that her children were not exposed to their arguments. In fact, prompted by defense counsel's questioning, the mother said, “It was not a good relationship but I didn't know how to get out of it.” The defense theory of the case was that the victim fabricated the allegations against the defendant because she had “a lot of reasons to think uncharitably of” him, she “misunderstood” what had happened to her, and she instinctively knew that a claim of improper touching would help her mother extricate herself from the relationship.

In the course of cross-examining the mother, defense counsel asked, “Do you remember saying to someone that there were drugs involved in this relationship?” When the Commonwealth objected, defense counsel offered at sidebar that the defendant and the victim's mother “basically spent their relationship doing drugs together,” that the mother was hospitalized for a drug overdose a few days after the incident, and that this was further evidence of the toxic relationship that the victim sought to end. Skeptical that this evidence was probative of bias or motive to lie, unless defense counsel could establish that the victim was aware of her mother's drug use, the judge precluded further questioning of the mother on this topic, leaving the door open for defense counsel to recall the mother if he could demonstrate the victim's awareness. Counsel did not pursue this line of questioning with the victim, who testified next.

The defendant argues that this restriction on his cross-examination of the mother violated his constitutional right to cross-examine witnesses for bias and prejudice. See Commonwealth v. Chicas, 481 Mass. 316, 320 (2019); Mass. G. Evid. § 611(b)(2) (2019). “A judge may not ‘bar all inquiry into the subject’ if the defendant demonstrates ‘a possibility’ of bias.” Chicas, supra, quoting Commonwealth v. Magadini, 474 Mass. 593, 604 (2016). The right to cross-examine is not absolute, however, and is subject to reasonable limitations “based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant.” Commonwealth v. Johnson, 431 Mass. 535, 540 (2000), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). “Moreover, a judge has discretion to limit questions that involve collateral issues and questions where the connection to the evidence of bias is too speculative.” Chicas, supra. A judge's decision to restrict cross-examination is reviewed for abuse of discretion. See id. See also Commonwealth v. Jones, 478 Mass. 65, 73 (2017).

The judge acted within her discretion to exclude questioning of the victim's mother about her drug involvement with the father. Evidence of the mother's drug use was collateral and prejudicial, and the defendant made no attempt to show that it affected her memory or perceptions. The theory that the mother's drug use gave the family a motive to want the defendant out of the house, and thus influenced the victim to fabricate an allegation of sexual assault (and the family to support her allegation), was remote and speculative. Moreover, such evidence would have been merely cumulative of other evidence before the jury, which more directly established a motive for both the victim and the mother to seek an end to the relationship. The judge acted reasonably in requiring the defendant to establish that the victim had some knowledge that her mother's relationship with the defendant involved drugs, such that it would influence the victim's motivations, before permitting further inquiry. We discern no abuse of discretion.

2. Prosecutor's closing argument. The defendant contends that the prosecutor's closing argument exploited excluded evidence, vouched for the victim's credibility, and impermissibly suggested that the jurors had the duty to convict.

“Counsel may not, in closing, ‘exploit[ ] the absence of evidence that had been excluded at his request.’ ” Commonwealth v. Harris, 443 Mass. 714, 732 (2005), quoting Commonwealth v. Carroll, 439 Mass. 547, 555 (2003). The defendant argues that by describing the defendant as being “uncharitable” to the victim's mother, the prosecutor exploited the excluded evidence of the mother and defendant's drug involvement. This contention distorts the record. During his closing argument, defense counsel twice repeated the phrase “think uncharitably” to describe how the victim and her family members felt about the defendant. The prosecutor's argument was a direct, and completely fair, response.

The defendant also argues that the prosecutor subtly vouched for the Commonwealth's witnesses. “A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs.” Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). “Improper vouching occurs 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. Ortega, 441 Mass. 170, 181 (2004), quoting Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). No vouching occurred here. The prosecutor never stated or implied that she had personal knowledge that the victim was telling the truth. Nor did the prosecutor improperly ask the jurors to put themselves in the witnesses' shoes when arguing that memories of details fade over time. See Mass. G. Evid. § 1113(b)(3)(D) (2019). The prosecutor asked the jurors to use their common sense and personal experience to evaluate the witnesses' memories of events that occurred in 1991; she did not ask them to identify with the victim. Contrast Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011) (prosecutor's closing argument improper because she “urged the jury to place themselves in [the victim's] shoes”).

The prosecutor concluded her closing argument by stating that after the judge's instructions of the law, the jury's “job begins,” that job being to “go back into the jury room and ․ review all of the evidence that was presented in this case.” The prosecutor then said she was “confident” that the jury would return a guilty verdict after “carefully consider[ing] all of the evidence in the case.” This argument was neither a personal opinion nor an impermissible injunction to return a guilty verdict, as the defendant argues. “The prosecutor was simply arguing that the jury should find the defendant guilty.” Commonwealth v. Mamay, 407 Mass. 412, 424 (1990). See Commonwealth v. Cole, 473 Mass. 317, 333 (2015). See also Commonwealth v. Grandison, 433 Mass. 135, 141-143 & n.11 (2001).

Judgment affirmed.