COMMONWEALTH v. Bartolo HERNANDEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in District Court, the defendant was convicted of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B. He now appeals, making several challenges to the prosecutor's closing argument. We affirm.
Background. We recite the facts as the jury could have found them, reserving certain details for later discussion. The victim, the defendant's niece, was seven years old at the time of the incident. The victim's father lived in an apartment with his sister, her husband (the defendant), and their children. The victim would sometimes stay there with her father and would sleep in his room. On one occasion, the victim slept in her cousins’ bedroom, with the victim and the defendant in one bed and the cousins in the other bed. The defendant put his hand under the victim's clothes and put his finger between her legs into her “private part” where she urinates. After “[a] lot” of time had passed, the victim told her mother what had happened.
Discussion. The defendant asserts that the prosecutor's closing argument prejudiced the jury by (1) shifting the burden of proof to the defendant by discussing motive to lie, (2) impermissibly suggesting that the victim's sexual knowledge could only have come from the defendant, (3) improperly vouching for the victim, (4) misstating testimony, and (5) suggesting that the jurors put themselves in the victim's position. He also asserts that even if no error, individually, was prejudicial, the cumulative effect of those errors requires reversal of his conviction. In reviewing a prosecutor's closing argument for error, we consider “(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions.” Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). We will address each attack on the prosecutor's closing in turn.
1. Motive to lie and burden-shifting. The defendant first argues that the prosecutor's comments on motive to lie unlawfully shifted the burden of proof to the defendant. The prosecutor argued the following:
“But who has the motive to lie here? A 10-year-old girl or the defendant? I would suggest that a 10-year-old has little to benefit or prosper, little motivation. That's what I would suggest to you. And that this defendant has absolutely everything to lose. He has motive to be untruthful, to make something up.”
The defendant objected to these comments, and as a result the judge provided a curative instruction. The defendant did not make any further objection following the curative instruction. Therefore, we review any error for a substantial risk of a miscarriage of justice. Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). That question turns on whether we have “a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
“There is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie.” Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). A prosecutor may argue that a government witness had no motive to lie as a “fair response to an attack on [the witness's] credibility.” Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). Additionally, a prosecutor may comment on the credibility of a defendant during closing argument if the defendant has testified at trial. Commonwealth v. Ayoub, 77 Mass. App. Ct. 563, 567-568 (2010).
Here, where defense counsel argued in closing that the victim had lied and fabricated the incident, the prosecutor's response that the victim had no motive to lie did not shift the burden of proof to the defendant. See Chavis, 415 Mass. at 714, n.15. Additionally, because the defendant took the stand and testified, the prosecutor was permitted in closing to comment based on his testimony about his motive to lie. See Beaudry, 445 Mass. at 587, citing Commonwealth v. Shea, 401 Mass. 731, 738-739 (1988). Therefore, we see no error, let alone one that creates a substantial risk of a miscarriage of justice.
2. Victim's sexual knowledge. The defendant next argues that the prosecutor impermissibly attempted to use the assumption that children lack sexual knowledge to bolster the victim's credibility. The prosecutor argued to the jury, “But I want you to focus on the content of what she's supposedly lying about. Does a 7-year-old or 8-year-old know what this type of behavior is? Are they exposed to hypersexual content to even know enough to make this up?” As the defendant did not object to this portion of the prosecutor's closing argument, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987).
For a prosecutor to “expressly urge[ ]” during closing argument “that a child victim's sexual knowledge was derived from identified acts of abuse,” there must be evidence in the record that supports the argument and “excludes other possible sources of such knowledge.” Beaudry, 445 Mass. at 584, quoting Commonwealth v. Beaudry, 63 Mass. App. Ct. 488, 497-498 (2005), S.C., 445 Mass. 577, 584 (2005). Here, the prosecutor asked the jury to apply their life experience and assume that a child of the victim's age would not possess such sexual knowledge, yet there was no evidence before the jury regarding the sexual knowledge of the victim or the average child of the same age. Assuming without deciding that this comment was made in error, we evaluate whether it created a substantial risk of a miscarriage of justice. See Kozec, 399 Mass. at 518 n.8.
Like in Beaudry, the verdict in this case rested on whether the jury believed the victim. 445 Mass. at 586. However, unlike in Beaudry, the prosecutor did not so “expressly urge” that it was from the defendant that the victim gained knowledge of such graphically-described “identified acts.” Id. at 584. In Beaudry, the prosecutor asked the jury the following:
“[H]ow would a nine year old child know about these numerous and very sexual acts that she testified to?
“Does the average nine year old child know about a man licking a female's vagina? Does the average nine year old little girl know about a man putting his penis in someone's mouth? ․
“[And] not only did [the victim] tell you what her father did, she gave you details․
“[I]f a child doesn't experience sexual things, how do they make up that kind of detail?” Id. at 579-580.
Here, by contrast, the prosecutor made one comment generically suggesting that a young child would not have known enough to fabricate an allegation of sexual behavior. Although the comment certainly went to the critical issue of the victim's credibility, it was substantially less detailed and pointed, and thus less likely to sway the jury, than the comments in Beaudry.
Also, unlike in Beaudry, there is no evidence here that the prosecutor had knowledge that the victim could have gained the knowledge from another source. See id. at 583 (prosecutor's suggestion particularly troubling where record showed prosecutor was aware that victim knew of her own sister's sexual assault). Another distinction between this case and Beaudry is that in Beaudry there was an objection, id. at 580; here, there was none. Although not dispositive, defense counsel's lack of objection is a further indication that the prosecutor's comments were not unfairly prejudicial. See Commonwealth v. Toro, 395 Mass. 354, 360 (1985). Especially because they were part of the response to the defense's argument that the victim fabricated the story, the prosecutor's comments do not leave us with “a serious doubt whether the result of the trial might have been different had the error not been made.” LeFave, 430 Mass. at 174. Therefore, even if error, the comments did not create a substantial risk of a miscarriage of justice.
3. Improper vouching. The defendant next argues that the prosecutor's suggestion (quoted above) that the victim had no motive to lie also improperly vouched for the victim's credibility. The record is unclear as to whether the defendant objected on that basis, but we need not decide what standard of review applies, because we conclude that there was no error.
A prosecutor may not argue that a victim is presumed credible simply because the victim testifies in court. Beaudry, 445 Mass. at 587. A prosecutor is also prohibited from vouching for a witness by expressing “a personal belief in the credibility of a witness” or indicating that the prosecutor possesses “knowledge independent of the evidence before the jury.” Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Here, however, the prosecutor did not express any personal belief or hint at any independent knowledge regarding the victim's credibility. The statements were “within the prosecutor's right of retaliatory reply” because they were made in response to the defendant's argument that the victim should not be believed. Commonwealth v. LeFave, 407 Mass. 927, 939 (1990), quoting Commonwealth v. Prendergast, 385 Mass. 624, 633 (1982). See Helberg, 73 Mass. App. Ct. at 179-180 (prosecutor's argument that child rape victim had no motive to lie not improper vouching). Therefore, we see no error.
4. Misstatement of evidence. Next, the defendant argues that the prosecutor misstated the evidence when recounting the victim's mother's testimony to the jury. While testifying as to what the victim told her about the incident, the victim's mother said, “She said buttocks and then touched her -- her behind and then that he put his finger up and that it was hurting.” During closing arguments, the prosecutor asked the jury, “Didn't she tell her mom that ․ it was a private part of her body and pointed down towards her butt?” The defendant objected to this comment and thus we review for prejudicial error. See Commonwealth v. Johnson, 463 Mass. 95, 112 (2012). An error is not prejudicial if it “did not influence the jury, or had but very slight effect ․” Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
A prosecutor should not “misstate the evidence or refer to facts not in evidence” in a closing argument. Kozec, 399 Mass. at 516. Here, the prosecutor's characterization of the victim's mother testimony was inaccurate. However, the prosecutor immediately followed the above remark to the jury with, “And your memory is correct. So if I'm remembering something the witness said differently, it's your memory that you should trust and rely on.” Additionally, the judge gave an unusually detailed and forceful instruction to the jury that their recollection of the evidence controlled, repeating that concept three times, and reminding the jury that he had given them the same instruction earlier in the trial. Therefore, even if there was error, we are confident that it had no or “ ‘but very slight effect’ ” (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
5. Suggesting that jurors identify with victim. Lastly, the defendant argues that the prosecutor improperly used an analogy about traumatic experiences to ask the jurors to put themselves in the position of the victim. The prosecutor stated:
“I don't know if any of you have ever broken a bone before or had any sort of traumatic experience, but if you have, you would know that you knew right then and there that your arm was broken, or your leg was broken. But if I were to ask you four years after you were to break that arm or that leg, could you tell me what you were wearing that day?”
The defendant objected to this comment, so we review for prejudicial error. See Johnson, 463 Mass. at 112.
In closing arguments, a prosecutor should refrain from asking the jurors to identify with the victim, as it distracts from the actual issues of the case and invites the jurors to use sympathy to determine guilt. See Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011). Here, the prosecutor did not attempt to tug on the jury's heartstrings. Instead, the prosecutor merely tried to suggest to the jury, based on their own common sense, that it was reasonable that the victim did not remember all the details surrounding the incident. See Commonwealth v. Brea, 488 Mass. 150, 168 (2021) (prosecutor's remarks not prejudicial where they “did nothing more than illustrate a noncontroversial, commonsense principle about human memory”). Therefore, we see no error in the prosecutor's analogy.
6. Cumulative effect of errors. The defendant argues that even if no individual error in the prosecutor's closing was prejudicial, the cumulative effect of those errors requires reversal of his conviction. We are unpersuaded. After considering the prosecutor's comments “in the context of the entire argument[ ]” and considering “whether the judge's instructions mitigated [any] error,” Commonwealth v. Santiago, 425 Mass. 491, 500 (1997), we conclude that the challenged comments, even taken together, caused no unfair prejudice or substantial risk of a miscarriage of justice.
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