COMMONWEALTH v. LYNN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant, Kristopher E. Lynn, was convicted of two counts of indecent assault and battery on a child under the age of fourteen. He appeals, contending that the judge erred in failing to allow his request for additional peremptory challenges, and that the prosecutor's closing argument was improper. We affirm.

Discussion. 1. Peremptory challenges. During jury empanelment the defendant used his last peremptory challenge on juror number five after the judge denied the defendant's challenge for cause as to that juror. Following the selection of the last juror, juror thirty, the defendant requested additional peremptory challenges. The judge denied the request by saying: “I'm not at liberty to give extras, so I'm going to deny your request.” The defendant did not challenge juror thirty for cause nor did he object to the judge's denial of his request for additional challenges.

The defendant argues that the judge's response to his request for additional peremptory challenges indicated that the judge was unaware that he had discretion to allow additional challenges and the failure to exercise that discretion is an error of law, which requires reversal of the defendant's convictions.²

“The right to peremptory challenges in the Commonwealth has deep roots in both the common law and statute; it remains, however, merely a tool and not an end in itself. As Justice Blackmun, writing for the majority, so aptly noted in Georgia v. McCollum, 505 U.S. 42, 57 (1992): ‘[P]eremptory challenges are not constitutionally protected fundamental rights; rather they are but one state-created means to the constitutional end of an impartial jury and a fair trial.’ ” Commonwealth v. Jordan, 439 Mass. 47, 61 (2003). Peremptory challenges are currently provided for in Mass. R. Crim. P. 20 (c), 378 Mass. 889 (1979). Rule 20 does not specifically authorize the judge to grant additional challenges; however, we recognize that a “judge may, as a matter of discretion, allow motions for additional [peremptory] challenges.” Commonwealth v. McCoy, 456 Mass. 838, 841 (2010).

Based on the record before us, we will assume, without deciding, that the judge's response indicated that he did not have discretion to allow for additional challenges.³ Failing to recognize a discretionary right to make a ruling and, therefore, not exercising that right is error as matter of law. See Commonwealth v. Knight, 392 Mass. 192, 193 (1984).

The defendant claims that the judge's failure to recognize his discretion deprived him of his constitutional right to an impartial jury since he was denied “that which state law provides.” Commonwealth v. Crayton, 93 Mass. App. Ct. 251, 255 (2018). The defendant's claim that he was denied what State law provides is governed by statutory language: “[a]ny irregularity in ․ [e]mpanelling ․ jurors ․ shall not be sufficient to cause a mistrial or to set aside a verdict unless objection to such irregularity or defect has been made as soon as possible after its discovery or after it should have been discovered and unless the objecting party has been specially injured or prejudiced thereby.” G. L. c. 234A, § 74. See Crayton, supra at 255 n.11. Here, the defendant was allowed the full number of peremptory challenges permitted by rule 20 and makes no claim that his exercise of a peremptory challenge was erroneously denied. The defendant voiced no objection to the denial of his request for additional peremptory challenges before the verdict, nor did he claim any special injury or prejudice, as such, he would not be entitled to any relief.

In the alternative, the defendant argues that he was forced to use his last peremptory challenge on juror five after the judge erroneously refused to excuse that juror for cause, and as a result, the defendant was forced to accept juror thirty, whom he claims for the first time on appeal, he would have challenged peremptorily. Compare Commonwealth v. Kennedy, 478 Mass. 804, 815 (2018).⁴ Contrary to the defendant's argument, juror five unequivocally stated, and demonstrated, to the judge's satisfaction that she could be a fair and impartial juror. “A trial judge is accorded considerable discretion in the jury selection process and his finding that a juror stands indifferent will not be disturbed except where juror prejudice is manifest.” Commonwealth v. Clark, 446 Mass. 620, 629-630 (2006).

During the individual voir dire of juror five she indicated that her brother was a level three sex offender. When asked if there was anything about her brother being a sex offender that would affect her ability to decide the case fairly and impartially, juror five responded: “No, I don't believe so. I believe I can make a clear decision.” The defendant maintains that the judge's follow-up questions were inadequate because the judge failed fully to explore the jurors' conflicting responses on questions of potential bias and he failed to obtain an unequivocal response. We do not agree. Here, it is reasonably clear, that after the disclosures by the juror, the judge conducted a full examination of the prospective juror before the judge made a determination she could be fair and impartial. In response to further inquiry by the judge, juror five indicated that she knew nothing about the nature of her brother's case. Juror five told the judge that there was nothing about the experience of her brother being a sex offender that would affect her ability to be a fair and impartial juror.

We conclude that the judge did not abuse his discretion in denying the challenge of juror five for cause. A judge who observes the prospective juror is in the best position to determine whether follow-up questions are warranted. Commonwealth v. Lattimore, 396 Mass. 446, 450 n.6 (1985). Whether or not to accept juror five's declaration that she could be fair and impartial was in the broad discretion of the judge, as he was able to see juror five's demeanor and assess her credibility. See Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 272 (2002).

Since, the defendant has not shown that he was deprived of a fair and impartial jury, and he has not shown any injury or prejudice, we regard the judge's failure to recognize he had discretion to allow additional peremptory challenges as harmless error. See Commonwealth v. Coviello, 378 Mass. 530, 534 (1979).

2. Closing argument. The defendant argues that there were several prosecutorial errors during closing argument. We disagree. Since the defendant did not preserve these objections at trial, we review under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Pickering, 479 Mass. 589, 596 (2018).

First, the defendant asserts that the prosecutor improperly bolstered the victim's credibility by pointing out the embarrassing personal details of her testimony and asking what reason the victim would have to lie. Where, as here, defense counsel in his closing argument challenged the credibility of the alleged victim, the prosecutor acted properly in asking the jury to consider whether the victim had a motive to lie, and identified evidence that demonstrated that the victim's testimony was accurate and reliable. Asking rhetorical questions to suggest that a witness has no motive to lie is permissible where based on the evidence and made in response to defense counsel's argument concerning the witness's credibility. See Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). See also Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). It was proper for the prosecutor to address the issues of the case including the need for the victim to discuss how she contracted sexually transmitted diseases. Taken in context, the prosecutor's rhetorical questions did not vouch for the witness's credibility, see Commonwealth v. Halstrom, 84 Mass. App. Ct. 372, 385 (2013), or appeal to juror sympathy. Rather, the prosecutor made an evidence-based argument that was directed at rebutting the defendant's claims that the victim was lying. See Commonwealth v. Polk, 462 Mass. 23, 40 (2012). We discern no error.

Next, the defendant argues that the prosecutor mischaracterized defense counsel's closing argument and disparaged defense counsel. We consider the closing argument as a whole, noting that the defendant's failure to object to the prosecutor's argument as some indication that the portions of the argument he now challenges were not unfairly prejudicial. See Commonwealth v. Degro, 432 Mass. 319, 325-326 (2000). Moreover, the judge in this case directly instructed the jurors not to credit statements made by counsel if such statements did not coincide with the jurors' recollection of the evidence, and that closing arguments were not evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987).

Here, the prosecutor's argument did not go beyond the bounds of appropriate advocacy. The prosecutor was entitled to respond to the suggestion that the victim had fabricated a story about being sexually assaulted by the defendant. To the extent that the prosecutor mischaracterized the defendant's argument, that mischaracterization was one that the jury were fully equipped to assess. “Closing argument is argument, not evidence, and jurors are presumed to be capable of discounting excessive claims.” Rakes, 478 Mass. at 47. We conclude that there was no error, let alone a substantial risk of a miscarriage of justice.

Lastly, the defendant contends that the prosecutor's comment on the defendant's interest in the outcome of the case was improper. The challenged comment was made following the defense counsel's argument concerning the victim's credibility. “A prosecutor may argue that a testifying defendant has an interest in the outcome of a case” based on the fact that he is the defendant, “but the argument must be understated and approached cautiously.” Commonwealth v. Niemic, 472 Mass. 665, 674, 675 (2015). Accord Commonwealth v. Ortega, 441 Mass. 170, 181 n.19 (2004). Here the prosecutor did just that. The prosecutor's single comment on the defendant's motive was made early in his closing argument. The remainder of the prosecutor's argument discussed the evidence and the reasons to find the Commonwealth's witnesses credible. Accordingly, there was no error.

Judgments affirmed.

FOOTNOTES

2.   “The mistaken denial of peremptory challenges is not per se structural error under the Federal Constitution. Nor have [Massachusetts courts] held that it is structural error under art. 12 [of the Declaration of Rights of the Massachusetts Constitution]” (citation omitted). Commonwealth v. Berardi, 88 Mass. App. Ct. 466, 472 (2015).

3.   The Commonwealth concedes that the response is “somewhat ambiguous.”

4.   The defendant did not challenge juror number thirty for cause. See McCoy, 456 Mass. at 842 (question of impartiality of juror is waived if no challenge for cause).