COMMONWEALTH v. DORZIN (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant was convicted of rape, G. L. c. 265, § 22 (b), and other related sexual assault offenses.² On appeal, the defendant alleges errors in the prosecutor's closing argument, and error in the admission of a 911 call made by the victim. We affirm.

Background. We summarize the evidence at trial, reserving certain facts for later discussion. In 2001, the victim, the defendant's daughter, moved from Haiti to live with the defendant, his wife, and their three sons in Leominster. She was sixteen years old at the time and had a “close” relationship with her father. That year, while the other household members were at church, the defendant asked the victim if she had a boyfriend and whether she had prior sexual encounters; she responded that she did. The defendant turned on a pornographic video and began touching the victim's leg, vagina, and breasts with his hands. When the victim attempted to walk away from the defendant, asking him to stop, the defendant “slapped [her] back into the couch.” The defendant then pinned the victim down and raped her; the defendant told her that if she told anyone, he would kill her. The defendant raped the victim several times throughout the next two years, usually while the rest of the household was at church.

Around early 2003, the victim learned she was pregnant with the defendant's child. When the defendant found out, he told her that she could either “go and have [an] abortion, or [she] will die.” Despite the victim not wanting an abortion, the defendant scheduled an appointment for her at Planned Parenthood and brought her to it. At the direction of the defendant, the victim had the abortion procedure and lied about the identity of the father because she was “in fear for [her] life” should she not comply. Medical records from this appointment were introduced at trial.

The defendant was arrested in October 2003; he later fled but was brought to Massachusetts for trial in 2016.³ In addition to the medical records, introduced at trial were, inter alia, the victim's testimony, the testimony of a first complaint witness, and the recording of a 911 call made by the victim in 2003. The defendant's motion for a directed verdict was denied, and the defendant was convicted of all charges.

Discussion. 1. Prosecutor's closing argument. The defendant claims that the prosecutor erred by impermissibly vouching for the victim's credibility in his closing argument by noting the “excruciating detail” of her testimony and her motive in testifying. Defense counsel did not object to the Commonwealth's closing at trial,⁴ and we review any error for a substantial risk of a miscarriage of justice. Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). In doing so, we review the evidence and case as a whole and “determine ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ ” Id., quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C. 444 Mass. 72 (2005).

“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). Here, we discern no error in the prosecutor's suggestion that the jury consider whether the victim, the daughter of the defendant and age thirty-three at trial, possessed a motive to lie, or in the prosecutor's invitation to the jury to consider the victim's “emotional” demeanor.⁵ See Commonwealth v. Pearce, 427 Mass. 642, 644 (1998) (prosecutor's evidence-based comments on “demeanor and motive․ merely invited the jurors to draw a conclusion from their own observations of the victim as she testified”). These remarks were based on the victim's testimony and the corroborating evidence at trial — namely, the victim's medical records, the testimony of a first complaint witness, and the 911 call -- and came on the heels of the defendant's closing argument, which largely focused on whether the victim had testified truthfully.⁶ See Commonwealth v. Chavis, 415 Mass. 703, 713 (1993) (prosecutor permitted to “make a fair response to an attack on the credibility of a government witness”).⁷

Similarly, we discern no error in the prosecutor's comments concerning the “excruciating detail” with which the victim testified.⁸ The prosecutor properly asked the jury to consider logically why the victim's testimony should be believed and responded to defense counsel's attacks on the victim's credibility. Specifically, defense counsel repeatedly pointed out the delays in the victim's reporting of the assaults and her failure to seek help despite many opportunities to do so. See Commonwealth v. Wilkerson, 486 Mass. 159, 181 (2020), quoting Commonwealth v. Rolon, 438 Mass. 808, 816 (2003) (not improper vouching for “the prosecutor to point to reasons why a witness's testimony ․ should logically be believed”); Commonwealth v. Koumaris, 440 Mass. 405, 414 (2003) (same). We are not persuaded that in these remarks the prosecutor suggested to the jury that the victim's testimony should be believed by virtue of her having testified.⁹ See e.g., Commonwealth v. Beaudry, 445 Mass. 577, 587-588 (2005). Reviewing the prosecutor's remarks in context, we conclude that the argument was in response to the attack on the victim's credibility, and there was no error.

Next, we discern no error in the prosecutor's comments regarding the credibility of the testimony of the first complaint witness, Wackly Toussaint. See Commonwealth v. King, 445 Mass. 217, 219 (2005). The defendant did not object at trial, and we review any error for a substantial risk of a miscarriage of justice.¹⁰ Dirgo, 474 Mass. at 1016.

As noted supra, “a prosecutor may address the witness's lack of motive to lie and do so by asking rhetorical questions relying on the evidence presented.” Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). The prosecutor in this case properly posed rhetorical questions to the jury pertaining to Toussaint's motive (or lack thereof) in testifying about what the victim had confided in him over a decade before,¹¹ and was a fair reply to defense counsel's characterization of the testimony at trial. See id. There was no error.

2. Admission of the 911 call. The defendant next challenges the admission, over objection, of a thirty-one-second 911 call made by the victim in which muffled noises and a voice exclaiming “help” twice can be heard. The call was admitted under the “ongoing emergency” hearsay exception. See Davis v. Washington, 547 U.S. 813, 822 (2006); Commonwealth v. Smith, 460 Mass. 385, 390 (2011). For the first time on appeal, however, the defendant argues that the call was not relevant, and its prejudicial effect substantially outweighed its probative value. See Commonwealth v. Darby, 37 Mass. App. Ct. 650, 654 (1994). Because the defendant did not preserve his objection on this ground, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Fowler, 431 Mass. 30, 41 n.19 (2000), citing Commonwealth v. Lyons, 426 Mass. 466, 473 & n.12 (1998).

“Whether evidence is relevant and whether its probative value is substantially outweighed by the prejudicial effect is in the ‘trial judge's broad discretion and [is] not disturbed absent palpable error.’ ” Commonwealth v. Khan, 92 Mass. App. Ct. 487, 495 (2017), quoting Commonwealth v. Simpson, 434 Mass. 570, 579 (2001). To be admissible, evidence must be relevant, “that is, it must have a ‘rational tendency to prove an issue in the case.’ ” Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 24 (1990), quoting Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989). Even where evidence is relevant, it must be determined whether its probative value is substantially outweighed by the unfairly prejudicial effect it might have on the jury. Id.

Here, the 911 call was properly admitted. At the time the victim placed the call, she believed she was in danger of assault at the hands of the defendant; the record of this call and the cries for “help” are probative of the victim's state of mind, and not an improper appeal to the jurors' sympathies. This accords with the victim's testimony at trial, and makes more probable that the victim believed, at that time, that the defendant was going to assault her.

We discern no error in the admission of the 911 call.

Judgments affirmed.

FOOTNOTES

2.   Assault with intent to rape, G. L. c. 265, § 24; incest, G. L. c. 272, § 17; three counts of indecent assault and battery on a person over fourteen, G. L. c. 265, § 13H; dissemination of obscene matter to a minor, G. L. c. 272, § 28 (later dismissed at the request of the Commonwealth); two counts of assault and battery, G. L. c. 265, § 13A; and threat to commit a crime, G. L. c. 275, § 2.

3.   The defendant's flight is not relevant to this appeal.

4.   In passing, the defendant argues counsel was ineffective for failing to object to the prosecutor's comments. See Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). Because we determine the prosecutor's remarks were not error, defense counsel was not ineffective.

5.   During closing, the prosecutor remarked, “So I ask you this: where is [the victim's] motive to lie? Where was it then, and where is it now?” and “why would [the victim] fabricate [her demeanor]? What is her motive to lie?”

6.   Counsel for the defendant stated: “while the contents of what [the victim] told you is certainly very disturbing, I ask that you consider certain facts that came out in trial that show why you should not believe what she told you.”

7.   We note that the judge instructed the jury that closing arguments are not evidence and that they alone were tasked with determining credibility. See Pearce, 427 Mass. at 645-646 (1998); Commonwealth v. Kozec, 399 Mass. 514, 517 (1987).

8.   The prosecutor stated: “[the victim] described to you in excruciating detail what the [d]efendant did to her, despite the fact that he called her after he was charged and told her that if she testified against him, she was going to die.”

9.   The defendant points to the prosecutor's comment that “[the victim] was reliving that rape in front of you as she described those details to you.” The defendant also argues that this comment was impermissibly inflammatory and an attempt to garner sympathy for the victim. See Commonwealth v. McLeod, 30 Mass. App. Ct. 536, 538-539 (1991). As defense counsel noted, the victim's testimony was “disturbing,” and we are not compelled by the argument that the prosecutor's summary or characterization of the victim's testimony was in any way inflammatory.

10.   While not dispositive, the absence of objection is “some indication that the tone [and] manner ․ of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial.” Commonwealth v. Springer, 49 Mass. App. Ct. 469, 476 (2000), quoting Commonwealth v. Mello, 420 Mass. 375, 380 (1995).

11.   In closing, defense counsel suggested that Toussaint's testimony “[was] not a credible basis to convict [the defendant],” commenting that “if [the victim] lied to the police, she could've lied to Mr. Toussaint.”