Commonwealth v. Dirgo

474 Mass. 1012

52 N.E.3d 160

COMMONWEALTH

v.Aaron DIRGO.

SJC–11992.

Supreme Judicial Court of Massachusetts.

June 21, 2016.

Merritt Schnipper for the defendant.

Katherine E. McMahon, Assistant District Attorney (Eileen M. Sears, Assistant District Attorney, with her) for the Commonwealth.

RESCRIPT.

After a jury trial, the defendant, Aaron Dirgo, was convicted of aggravated rape and abuse of a child (four counts), G.L. c. 265, § 23A, and indecent assault and battery on a child under fourteen years of age (two counts), G.L. c. 265, § 13B. He appealed from the convictions and from the denial of his motion for a new trial. He argued, among other things, that the prosecutor's improper closing argument, to which he did not object at trial, created a substantial risk of a miscarriage of justice. The Appeals Court affirmed. Commonwealth v. Dirgo, 87 Mass.App.Ct. 1115, 2015 WL 1637205 (2015). We granted further appellate review limited to the issues concerning the closing argument. Because we conclude that the cumulative effect of various improper statements in the prosecutor's argument created a substantial risk of a miscarriage of justice, we reverse.

1. Facts. The complainant in the case, whom the parties refer to as H.R., met the defendant when she was twelve years old. Her mother and brother were friendly with the defendant and his son, and their families socialized together.

The complainant testified that the defendant began to sexually assault her after she volunteered to babysit for the defendant's son. When she babysat in the evenings, she would sometimes stay overnight at his house. At first the defendant touched her under a blanket as they sat on the couch and watched television. She described that over time the touching became more “intimate.” After the complainant turned thirteen years old, the defendant “progressed ... [to] sexual intercourse.” She testified that they had sexual relations frequently between 2010 and May, 2011, although she could not identify specific dates. She also testified that, at the time, she developed strong feelings for the defendant and wanted to be in a relationship with him.

Although the complainant told a friend at school about the relationship, she kept it from her mother. She also wrote notes to the defendant about her feelings and their relationship, although she did not deliver them. When her mother discovered one of her notes and confronted her, the complainant denied that she and the defendant had an inappropriate relationship. She described her account in the note as a “dream” of hers. Some months later, a family member saw the complainant smoking a cigarette at the defendant's automobile repair shop and reported this to her mother. Her mother went through her purse and discovered cigarettes, a marijuana pipe, and another note. This time, when she was confronted by her mother, the complainant revealed that she and the defendant did in fact have a sexual relationship. She also repeated those allegations to the police.

When she testified at trial, the complainant was fifteen years of age. She stated that she probably had been in love with the defendant. She maintained that she initially lied to her mother about their relationship in order to protect him. When their relationship was discovered, she continued to be protective toward him. She also acknowledged that she sometimes “escap[ed] [her] reality” by pretending or imagining alternate realities. She further acknowledged that sometimes she was “delusional.”

2. Closing argument. Although 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. Kozec, 399 Mass. 514, 516–517, 505 N.E.2d 519 (1987). In the present case, the defendant claims that the prosecutor's closing argument was improper in three main respects: first, that the prosecutor improperly asked the jury to find the complainant credible because she was willing to testify in court; second, that the prosecutor stated, without evidentiary support, that the complainant's knowledge of age-inappropriate terminology, and hence her ability to give sexually explicit testimony, was attributable to her alleged sexual experiences with the defendant; and third, that the prosecutor improperly suggested that multiple other witnesses who had not been called to testify were available to corroborate the complainant's version of the events.

a. Comments on complainant's credibility. On appeal, the Commonwealth concedes that the prosecutor improperly argued that the complainant was credible because of her willingness to testify in court. See Commonwealth v. Beaudry, 445 Mass. 577, 586–588, 839 N.E.2d 298 (2005). See Commonwealth v. Ramos, 73 Mass.App.Ct. 824, 826, 902 N.E.2d 948 (2009) (recognizing that it was error when prosecutor, “[b]y alluding to conjectured embarrassment experienced by a young woman in coming before a group of strangers to describe a sexual assault, ... sought to bolster the credibility of the complainant by virtue of her willingness, despite such a burden, to come into court and testify”). As in the Beaudry case, and as is often the case in matters like this, the prosecution depended heavily on the credibility of the complainant's testimony. Beaudry, supra at 585, 839 N.E.2d 298. There was no physical evidence or other eyewitness testimony. Id. Simply put, the crux of the case was whether the jurors believed the complainant's account of the events.

The prosecutor's argument in this regard was not a single, offhanded remark. Rather, the prosecutor established throughout the argument an overarching theme that the complainant was credible because of her willingness to testify. After marshalling the evidence, the prosecutor said:

“His Honor is going to give you some instructions about assessing credibility in witnesses. And when he gives you that instruction, he's going to ask you, what does that witness stand to gain or to lose by testifying the way they do? What is their motive? ...

“What did [the complainant] gain by coming forward on this case? What did she gain? Did she gain anything at all?

“And think about—think to yourselves, when she sat on the witness stand yesterday and today and was telling you—relaying all of the facts of her relationship with the defendant, relaying different sexual acts that they would engage in, do you think that was easy for her to do that?

“She subjected herself to your scrutiny in telling you—even still as a teenager, she's not yet [sixteen], she told you about what they did together. She told you about all the sexual things that they did together. Did she seem embarrassed at times? Maybe a little uncomfortable in using terms that for the most part were foreign to her before she engaged in all of these things with the defendant. Think about that.

“She subjected herself—she answered all of [defense counsel's] questions. You had an opportunity to see her. And despite all of the interaction and talk about how delusional and how she made up a lie to cover up the note to protect the defendant, think about what she gained when she sat here yesterday and today and told you about what happened. I would suggest to you that she gained nothing.”

The prosecutor also reminded jurors of this theme at the end of her argument:

“I urge you again to consider the whys. Why would she subject herself?”

Where, as here, defense counsel in closing argument challenges the credibility of the complainant, it is proper for the prosecutor to invite the jury to consider whether the complainant had a motive to lie and to identify evidence that demonstrates that the complainant's testimony is reliable. Commonwealth v. Polk, 462 Mass. 23, 40, 965 N.E.2d 815 (2012). The prosecutor could have argued the implausibility of the defendant's theory that the complainant was lying to divert her mother's attention from her cigarette and marijuana use. There was evidentiary support for such argument, unlike the argument that the complainant was credible because of her willingness to testify. The prosecutor's repeated suggestions that the complainant was credible because of her willingness to testify and to subject herself to the scrutiny of the jury were not collateral errors, but went straight to the heart of the case, the believability of her allegations that she was sexually assaulted by the defendant.

b. Complainant's knowledge of sexual terminology. This court has repeatedly cautioned prosecutors to restrict their “closing argument to the evidence and fair inferences that might be drawn therefrom.” Commonwealth v. Arroyo, 442 Mass. 135, 146–147, 810 N.E.2d 1201 (2004). In Beaudry, 445 Mass. at 579–584, 839 N.E.2d 298, we considered whether a prosecutor could properly argue that a child demonstrated knowledge of sexual acts and terms not typically possessed by a child her age, and ask the jury to infer that such knowledge was attributable to the alleged sexual abuse by the defendant. Recognizing that such knowledge might be attributable to any number of other sources, especially given the many other possible sources available to children today for acquiring sexual knowledge, see id. at 582–583, 839 N.E.2d 298, we held that it was permissible to argue that a child's knowledge of sexual terminology was the result of a defendant's alleged assaults, but only if there is “an adequate and specific basis in the record ... that excludes other possible sources of such knowledge” (citation omitted). Id. at 584, 839 N.E.2d 298.

At trial, the jury heard the fifteen year old complainant use terminology that was sexually explicit.¹ In her closing argument, the prosecutor repeatedly suggested that the complainant's knowledge of sexual terminology was attributable to being assaulted by the defendant. She argued that the complainant “us[ed] terms that for the most part were foreign to her before she...