Commonwealth v. Dec

COMMONWEALTH v. DAVID P. DEC (and nine companion cases¹).

09-P-823

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: August 16, 2011

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

We are presented with yet another case in which a prosecutor, by venturing beyond the boundaries of fair argument in his closing remarks to the jury, has threatened to 'snatch[] defeat from the jaws of victory.' Commonwealth v. West, 44 Mass. App. Ct. 150, 150 (1998). Following a jury trial in the Superior Court, the defendants, David P. Dec and Ramona M. Balicki, were convicted of various larceny and fraud offenses. Their sole contention on appeal is that the prosecutor engaged in misconduct by personally vouching for the integrity of the prosecution in his closing argument. We agree that the prosecutor's remarks were improper. However, because we conclude with fair assurance that the prosecutor's improper comments did not make a difference in the jury's conclusions, we affirm.

Background. The defendants, who are married, worked for many years at Smith Vocational High School (school) located in the Florence section of Northampton (city). Dec was the school's business manager and Balicki worked as an accounts

. They were both outspoken supporters of the school's farm program which the city planned to discontinue. In October, 1995, Dec resigned from the school. He subsequently filed a lawsuit against the city seeking reinstatement and back pay.

In 1996, a criminal investigation was commenced regarding possible wrongdoing in the school's business office. After a lengthy investigation, the defendants were indicted on a number of charges in connection with an alleged scheme to defraud the city through the misuse of public funds and the knowing submission of forged and false invoices to pay for various household items for their personal use. At trial (which lasted twenty-eight days), the defendants did not contest that they had engaged in much of the underlying conduct upon which the charges were based. Rather, they asserted that any 'borrowing' of school property was essentially innocent behavior -- that other employees regularly engaged in similar conduct without suffering any consequences let alone criminal charges. The defendants also sought to discredit the prosecution itself, suggesting that they had been unfairly targeted for prosecution in retaliation for their support for the school's farm program and Dec's pending action for back pay.

In response to the latter of these claims, the prosecutor declared to the jury in his closing that the 'integrity of the investigation was beyond reproach.' In an attempt to illustrate this point, the prosecutor also asserted that, had certain other employees or individuals associated with the case engaged in similar conduct -- including the lead police investigator and the prosecutor's cocounsel -- they would have been prosecuted as well. The defendants' timely objections to these comments were overruled and their request for a curative instruction was denied. The jury returned guilty verdicts on four of the ten charges against Dec and on six of the eight charges against Balicki. They were acquitted of all remaining charges.

Discussion. The comments quoted, supra, clearly exceeded the bounds of a proper argument. The statement that '[t]he integrity of this investigation is beyond reproach' (and the statements bolstering it) forcefully and impermissibly placed the prosecutor's personal opinion before the jury, see Commonwealth v. Torres, 437 Mass. 460, 465 (2002) (improper for prosecutor to make 'statement of personal belief'), and thereby vouched for the integrity of the investigation and prosecution.² The Commonwealth's tepid concession that the remark 'might better have been avoided' understates the violation.³

The salient question is whether these remarks, when viewed in the context of the entire trial record, were prejudicial to the point of requiring a reversal of the defendants' convictions. 'Because the defendant objected to the [] statements, we consider whether the prosecutor's error was limited to collateral issues or went to the 'heart of the case'; whether the judge gave curative instructions that mitigated the error; and whether the error possibly made a difference in the jury's conclusions.' Commonwealth v. Roberts, 433 Mass. 45, 54 (2000).

In arguing for reversal, the defendants contend that the issue of selective prosecution was at the heart of their case, and therefore the prosecutor's comments warrant a new trial. We do not agree with this assertion. When properly raised, the 'defense' of selective prosecution turns on determinations independent of the guilt or innocence of a particular defendant. See Commonwealth v. King, 374 Mass. 5, 20 (1977). These are...