COMMONWEALTH v. MENDEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of two counts of indecent assault and battery on a child under fourteen years of age. The convictions were based, in large part, on the testimony of the defendant's nine year old niece, who testified that on two occasions the defendant sexually assaulted her in his car while transporting her to school.² On appeal, the defendant claims that the convictions should be reversed because the prosecutor's closing argument was improper. While we agree that the prosecutor exceeded the scope of proper argument, we discern no substantial risk of a miscarriage of justice. Accordingly, we affirm.

The defense at trial was that the victim's testimony was not credible and the assaults never happened. In her summation, defense counsel argued to the jury that “[w]e're here because of this thing that [the victim] started and couldn't take back,” and that the “things that she told you make no sense.” The prosecutor responded to this attack on the victim's credibility by arguing in her closing, “[Y]ou heard absolutely no evidence of a reason for [the victim] to lie about this, nothing. You heard absolutely no evidence that her mother would have lied about this and coached [the victim] to come in here and lie about this.” This comment drew an objection from defense counsel. The prosecutor repeated at the end of her argument that “[t]heir theory has absolutely no evidence.” The judge gave a curative instruction following the prosecutor's summation reminding the jurors that arguments of counsel are not evidence, and that the defendant was not required to produce any evidence. Defense counsel voiced no further objection, including at the close of all of the judge's instructions.

On appeal, the defendant contends that the prosecutor's closing argument was improper because she (1) told the jury that the victim had no reason to lie, and (2) shifted the burden of proof to the defendant by commenting on the absence of evidence to support the defense theory. In light of defense counsel's acquiescence to the judge's particularized curative instruction, we review these claims for a substantial risk of a miscarriage of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).

While “a prosecutor may argue forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence, and may respond to the defense's closing argument, she must do so within established parameters.” Commonwealth v. Dirgo, 474 Mass. 1012, 1013 (2016). It is well settled that “[t]elling the jury that the victim[ ] [has] no reason to lie is over the line of permissible advocacy.” Beaudry, 445 Mass. at 587, quoting Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 10 (2000). Further, a prosecutor “may not shift the burden of proof or argue that the defendant has any affirmative duty to prove his innocence.” Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018). We agree with the defendant that the prosecutor's comments in this case violated these rules.³

We consider the remarks “in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Here, the offending comments were directly related to the victim's credibility and therefore went to the heart of the case. However, they were also isolated, consisting of three sentences in an argument that spanned eleven pages of transcript. The statements were not part of an overarching theme. Rather, the prosecutor's closing was, in large part, a summary of the evidence against the defendant, which included the victim's description of the assaults, her first complaint to her mother, and the defendant's statement to the police. The prosecutor also offered an explanation for the victim's delayed disclosure of the abuse and asked the jury to consider the victim's courtroom demeanor in assessing her credibility. There was nothing improper in these aspects of the prosecutor's closing argument.

The judge gave the following curative instruction immediately following the prosecutor's closing: “No matter what, and I emphasize this, it's the Commonwealth's burden to prove beyond a reasonable doubt each and every element of each charge, and the defendant has no burden whatsoever and the defendant is not required to testify, nor is the defendant required to put any evidence on in its case because it's entirely the Commonwealth's burden.” This instruction echoed the judge's instructions to the jury at the beginning of the trial and during the first part of the final charge, which the jury heard just prior to the closing arguments. The judge also instructed the jury three times that closing arguments of counsel are not evidence. The jury are presumed to have followed these instructions. See Commonwealth v. Gonzalez, 465 Mass. 672, 681 (2013).

In sum, considering the prosecutor's isolated statements in the context of an otherwise proper argument, and the judge's instructions to the jury at the beginning and end of the trial, including his forceful curative instruction, we discern no substantial risk of a miscarriage of justice.⁴ See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 235-237 (2013).

Judgments affirmed.

FOOTNOTES

2.   The victim was nine years old at the time of trial. The sexual assaults she described occurred when she was between five and seven years old.

3.   During a side-bar conference regarding the challenged comments, the prosecutor told the judge that a reason for the victim to lie “could have been brought out on cross, but it didn't happen.” This explanation confirmed that the prosecutor's comments were intended to call attention to the defendant's failure to produce evidence, an improper purpose.

4.   Even were we to treat the error as preserved based on defense counsel's objection during argument, we would still conclude that the error was not prejudicial.