COMMONWEALTH v. Keiara S. MOORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from her conviction of assault and battery on a family or household member, G. L. c. 265, § 13M (a). She contends that an investigating police officer's testimony about the decision to arrest stamped the alleged victim's testimony with the government's imprimatur of belief in his version of events, and that the prosecutor's opening statement and closing argument compounded the error. We agree, and reverse the conviction.
Background. The charges arose out of an encounter between the defendant and Francis Soriano, the father of her two children. The incident occurred when he went to her sister's house to pick up the children. At some point a bag of children's clothing that he brought at Moore's request fell to the floor. Soriano testified that the bag “accidentally fell on the floor.” The defendant testified that he “threw the bag” at her and it hit her.
The parties had words, and a physical confrontation ensued. Soriano testified that the defendant yelled at him and “mushed” her finger against his forehead. He asked her to stop and she did not. He walked away; she hit him in the back of the head. As he spun around he “accidentally” knocked the defendant's cell phone out of her hand. The defendant struck him repeatedly with a closed fist and broke the chain around his neck as she attempted to choke him with it. As he picked up the pieces, she hit him in the eye, giving him a black eye. The Commonwealth introduced photographs of his injuries.
The defendant testified that Soriano was upset when he arrived, hit her with the bag of clothes, and repeatedly called her a bitch. She said he intentionally “slapped” her cell phone out of her hand, and “charged” at her. He put his hands around her neck, and gasping for breath, she “did everything [she] could to get him off [her].” The defense also introduced photographs of her injuries.
Soriano and Moore each went to the police station separately to report the incident. The police interviewed both of them and photographed their injuries. At the conclusion of the interviews Moore was charged and Soriano was not.
The fact that the police interviewed both parties but charged only the defendant was a theme of the Commonwealth's case at trial. During the Commonwealth's opening statement, the prosecutor stated, “You won't just hear from Mr. Soriano. You'll hear from a police officer as well, Mr. Curtis Jones, who was involved in the situation, and who dealt with the situation, interacted with the parties involved.”
At trial, Officer Jones testified without objection as follows:
Q.: “Now did you and your partner speak to both Mr. Soriano and Ms. Moore?”
Q.: “After speaking to both of them, did you and your partner arrest one of them?”
Q.: “Who did you arrest?”
A.: “Mrs. Moore.”
During the Commonwealth's closing argument, the prosecutor told the jury:
“Now this morning the defendant told you that everything that she said to you today, she told the police. That's what she told you. But there is only one person here on trial today. And guess what, it's not Francis Soriano. It's Keiara Moore.
“She is the person on trial today charged with assault and battery on a family or household member.
“Now credibility is big in this case, so you essentially have Francis Soriano's testimony and the defendant's testimony. They can't both be telling the truth, that's pretty clear from what they said. So the question is, who do you believe? Well who has the motive to lie? Who has a motive for their testimony here today? Think about who's here charged with the crime?”
The defendant's objection was overruled.
Discussion. As there was no objection to the officer's testimony, we review to determine if there was error, and if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 108 (2014).
The testimony regarding the decision to arrest was elicited in error because evidence of the charging decision created an imprimatur of official belief in the legitimacy of the government's case. “[S]pecial care must be taken to avoid putting the imprimatur of the State on the decision to arrest or to charge.” Commonwealth v. DaSilva, 471 Mass. 71, 81 (2015). The evidence is “unnecessary and irrelevant to the issue of the defendant's guilt, and is extremely prejudicial” because it “establishes nothing other than an impermissible inference that [the witness] believed the complainant. It has no relevance to whether the defendant in fact committed the acts charged, and the jury did not need to know how the complaint ․ evolved into the case before them.” Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The evidence of the charging decision represented an improper expression of the officers' belief in Soriano rather than the defendant. Cf. Commonwealth v. Bior, 88 Mass. App. Ct. 150, 156 (2015) (“[T]he testimony about the clerk-magistrate process signaled to the jury that, after hearing from both parties, a judicial official already had determined that [the] allegations were at least potentially credible, while the defendant's apparently were not”). Contrast Commonwealth v. Ahart, 464 Mass. 437, 442, 443 (2013) (officer testified to “solid police work” producing corroborating evidence, “not the officer's belief”).
The error created a substantial risk of a miscarriage of justice. Cf. Reddy, 85 Mass. App. Ct. at 108-110 (failure to object to entry of unredacted abuse prevention order, coupled with prosecutor's focus on it created substantial risk of miscarriage of justice). This was a classic battle of credibility in which the jury were asked to determine who assaulted whom. There were no third party witnesses. Both Soriano and Moore testified to diametrically opposed versions of events. Each offered photographs of injuries that were arguably consistent with his or her testimony. “The evidence of the assault and battery was therefore sufficient but not overwhelming, and was completely tied to the credibility of the victim.” Reddy, supra at 110-111.
The prosecutor's opening statement and closing argument exacerbated the prejudice. The prosecutor told the jury at the outset of the trial to pay attention to the testimony of the officer. The officer was not a witness to the events -- his only utility as a witness was to say that both parties had been interviewed and the defendant alone was charged. In closing argument, the prosecutor told the jury that “credibility is big in this case,” shortly after pointing out that only the defendant, not Soriano, was on trial. She explicitly told the jury to “[t]hink about who's here charged with the crime.” See Commonwealth v. Akara, 465 Mass. 245, 262 (2013) (“It is well established that a prosecutor may not suggest that the existence of an indictment is evidence of guilt”). Cf. Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 296-297 (2003) (prosecutor's closing argument implicitly vouching for police witnesses created substantial risk of miscarriage of justice).
The opening statement and closing argument focused the jury's attention on the officer's testimony, which showed that law enforcement validated and adopted Soriano's version of events.2 “Thus, this error went to the very heart of the case.” Commonwealth v. Beaudry, 445 Mass. 577, 585–586 (2005), quoting Commonwealth v. Shelley, 374 Mass. 466, 471 (1978), S.C., 381 Mass. 340 (1980). In a credibility case such as this, “we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
Verdict set aside.
2. In this respect the closing argument here may be distinguished from those in which there was no error in a prosecutor's argument that the defendant had a “motive to lie.” Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005), quoting Commonwealth v. Shea, 401 Mass. 731, 738 (1988).
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