Commonwealth v. Lopes

92 Mass.App.Ct. 1108

94 N.E.3d 436 (Table)

COMMONWEALTH

v.Walter LOPES, Jr.

15–P–195

Appeals Court of Massachusetts.

Entered: October 13, 2017

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Superior Court, the defendant, Walter Lopes, Jr., was convicted of two counts of indecent assault and battery on an intellectually disabled person, and one count of indecent assault and battery.² On appeal, he contends that (1) the judge abused his discretion in denying his motion for a mental status examination of the victim, (2) the prosecutor's closing argument created prejudicial error, and (3) the judge erred in denying his motion for required findings of not guilty. We affirm.³

Background. At the time of the incident, the victim was a client of the Department of Developmental Services. She had been diagnosed with "mild mental retardation," but was "high functioning." She lived in Brockton with her adult foster care provider, and needed assistance with certain activities of daily living, such as shopping, cooking, finances, and transportation. The victim was her own guardian, had graduated from high school, had children, and was capable of consenting to sexual activity. She attended a program at a day habilitation center (center) in Stoughton where she watched movies, exercised, and worked on daily living skills. The defendant worked in the fitness room at the center. The victim viewed the defendant as a friend.

On the evening at issue, the defendant drove the victim and another intellectually disabled client of the center, "Tom,"⁴ to dinner. Tom thought that he was on a date with the victim. Following dinner, the defendant dropped Tom off at his home, drove to a park near Brockton High School, and parked near some benches. There, he joined the victim in the back seat of the vehicle and said, "[D]o you want to do this." The victim said, "[Y]ou're married.... I don't want to do this. Take me home." Thereafter, the defendant touched the victim's breasts with his hands over her clothes, touched her "between the legs," tried to pull down her pants, put his fingers in her vagina, and touched her with his penis. The victim told him that he was a married man, and he stopped. He asked if she wanted to "go underneath the bleachers." The victim said that she did not. The defendant then told the victim not to say anything about the incident. Following the incident, the defendant returned to Tom's home and told Tom not to tell anyone at the center about the dinner.

Based on the evidence and the reasonable inferences drawn therefrom, the jury could have also found that the defendant wrote and gave the victim some letters that were introduced as exhibits at trial. The letters repeatedly describe the defendant's love for the victim, and contain vivid descriptions of his sexual fantasies and desires toward her. The defendant asked her to destroy the letters, but she kept them. Employees of the center observed the defendant whispering in the victim's ears, holding her hand while she was on the treadmill, and rubbing her shoulders. One employee saw the defendant and victim embracing in a conference room, and jumping apart as the employee entered the room.

Discussion. 1. Motion for mental evaluation. The defendant contends that the judge erred in denying his motion for a mental status examination of the victim pursuant to G. L. c. 123, § 19.⁵ That statute authorizes a judge to "request the department [of mental health] to assign a qualified physician or psychologist" to "make such examinations [of a party or witness] as the judge may deem necessary."⁶ A judge's decision whether to order such a test is discretionary. See G. L. c. 123, § 19 ; Commonwealth v. Hiotes, 58 Mass. App. Ct. 255, 256 (2003). Here, there was no abuse of discretion.

"Whether a witness is competent is first determined by the judge." Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 248 (2001). To determine a witness's competency, a judge will apply a two-pronged test: "(1) whether the witness has the general ability or capacity to observe, remember, and give expression to that which she has seen, heard, or experienced; and (2) whether she has understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment." Ibid. (quotations omitted). We apply this test "regardless of whether the witness is an adult, child, or subject to some disability." Ibid. In the present case, the judge held a pretrial competency hearing six weeks before trial. At the conclusion of the hearing, the judge denied the motion for a mental status examination, and detailed his findings on the record. The defendant claims that although the second prong of the competency test may have been met, the "first prong of the test was effectively ignored," and thus the mental status evaluation should have been allowed. We disagree.

Contrary to the defendant's argument, the judge observed the witness testify and undergo thorough cross-examination at the hearing, and comprehensively addressed the first prong of the competency test in his findings.⁷ Indeed, the judge reiterated the appropriate legal standard, and found that the victim "has the general ability and capacity to observe events, process the information, remember the information and give a coherent description of events that she has observed." He found that she "speaks well," is "articulate," and has a "respectful, polite manner of testifying." The judge elaborated that "[s]he ... was trying to listen to the questions and understand the questions and trying to answer them truthfully." The judge concluded his findings as follows:

"I've observed this witness carefully. I've listened to counsels' questions. I've observed the records submitted by counsel and the arguments and the case law. And I find that under the governing standards cited in the cases by the parties, the witness is competent, able to present testimony to the trial and has allowed the fact finder to make determinations of how reliable, how accurate, how honest, as well as whether her testimony is mistaken."

The judge's findings were comprehensive, clear, and supported by the record. Although there were considerable inconsistencies in the witness's testimony, and in the story she told over time, the jury were in the best position to observe and evaluate her credibility. See Hiotes, supra at 256.⁸ Furthermore, the victim's trial testimony similarly demonstrated her ability to recall and convey what she had seen and experienced.⁹ See Commonwealth v. Thibeault, 77 Mass. App. Ct. 419, 424 (2010) ("In reviewing a trial judge's ruling on the competency of a witness, we will examine both the preliminary hearing and the witness's trial testimony"). There was no abuse of discretion. See Commonwealth v. LeFave, 407 Mass. 927, 942 (1990), quoting from Commonwealth v. Tatisos, 238 Mass. 322, 325 (1921) ("It is seldom that the discretion of the trial judge can be revised; its exercise must have been clearly erroneous to justify such action"); Monzon, supra at 248, 249 (noting that judge's determination of witness's competency will usually survive appellate scrutiny).¹⁰

2. Prosecutor's closing argument. The defendant contends that the prosecutor erred in (1) asking the jury to "please find [the defendant] guilty," and (2) vouching for the credibility of the victim. We disagree.

The defendant objected to the prosecutor asking the jury to "please" find the defendant guilty. We thus review for prejudicial error. Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015). Viewing the closing argument "in its entirety," as we must, we are not persuaded that a single request to find a defendant guilty constituted prejudicial error. Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 473 (2014). The statement did not amount to an appeal to sympathy or bias, and we attribute a certain amount of sophistication to a jury. See Commonwealth v. Kozec, 399 Mass. 514, 516–517 (1987). Moreover, at defense counsel's request for an instruction on this topic, the judge instructed the jury as follows:

"If an attorney is trying to summarize the evidence and urge a conclusion, that's not an attorney giving his or her belief about what must be done or what should be done. Assessing the evidence and deciding, in a fair way, based only on the evidence, is for the jury to decide. And it's not for the attorneys to give a personal belief. So if it sounded like that, you must disregard it. They're trying to do their job professionally, but, sometimes, it may sound like a personal belief. If it sounded like that, it must be disregarded. You decide the case based only on the evidence and the jury's collective reasoning powers applied to the evidence in a fair way."

The defendant did not object to this curative instruction. Furthermore, the judge twice instructed that closing arguments are not evidence. The instructions were thorough and accurate, and we presume the jury followed them. See Commonwealth v. Cortez, 438 Mass. 123, 130 (2002).

The defendant next contends that the prosecutor improperly vouched for the victim's credibility by asking the jury not to hold any memory lapses against the victim "because of her disability," and by suggesting that the victim was "trying her best, but her cognitive abilities sometimes limit her from communicating things the way you and I may be able to." As there was no objection to these statements at trial, review is limited to whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978). Viewed in the context of her entire closing, the prosecutor was arguing from the evidence that the victim should be believed. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015) ("[W]e consistently have held that, where the credibility of a...