Commonwealth v. Santos

90 Mass.App.Ct. 1109

60 N.E.3d 1197 (Table)

COMMONWEALTH

v.Paulo DOS SANTOS.

No. 13–P–1984.

Appeals Court of Massachusetts.

October 6, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury in the Superior Court convicted the defendant of three counts of rape and one count of assault and battery. The charges stemmed from the defendant's digital, vaginal, and anal rape of the victim, his then girl friend, following a night out drinking. The defendant appeals, alleging errors in the prosecutor's opening statement and closing argument and in the trial judge's failure to give a jury instruction on separate and distinct acts. We affirm the judgments on the defendant's convictions of rape, but vacate the assault and battery conviction and set aside the verdict.

Opening statement and closing argument. The defendant argues that the opening statement and closing argument were improper in many respects. For example, he claims that the prosecutor erred by vouching for the credibility of the victim referencing the jurors' “oath” or “commitment,” using rhetorical questions, appealing to the jurors' emotions, and by speculating and attempting to fill gaps in the Commonwealth's case against the defendant.² Defense counsel did not object at trial, so we review only to determine whether any errors create a substantial risk of a miscarriage of justice. See Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 56 (2009).

As the Commonwealth correctly acknowledged during oral argument before this panel, the prosecutor at times at least approached the boundary of permissible advocacy, for example by repeatedly suggesting that the victim had no motive to lie and that her appearance in court added to her credibility. See Commonwealth v. Beaudry, 445 Mass. 577, 586–587 (2005). At least where, as here, defense counsel attacked the victim's credibility in closing argument, a prosecutor may invite the jury to consider whether the victim had any reason to lie. Commonwealth v. Polk, 462 Mass. 23, 39–40 (2012). Even if the prosecutor here crossed the line by referencing the victim's testifying in court as a potential indication of her credibility, we discern no substantial risk of a miscarriage of justice. In this regard, we note that the judge sua sponte issued a curative instruction immediately following the prosecutor's references to the victim voluntarily testifying.³ See Commonwealth v. Cohen, 412 Mass. 375, 382 (1992).

Similarly, although the prosecutor unnecessarily and somewhat confusingly repeatedly urged the jurors to obey their “oath[s]” and “commitment[s]” and not to compromise, see Commonwealth v. Awad, 47 Mass.App.Ct. 139, 145–146 (1999), we discern no reversible error in such statements. The prosecutor did not say or suggest that the jury had a duty to convict the defendant. Instead, he emphasized their responsibility to “follow the evidence” without preconceptions and encouraged them not to compromise in rendering their verdict. See Commonwealth v. Carriere, 470 Mass. 1, 20 (2014). Viewed in the context of the argument as a whole and the judge's instructions, these remarks do not amount to error, much less give rise to a substantial risk of a miscarriage of justice.⁴ See Oliveira, supra.

The defendant's remaining arguments are without merit. The prosecutor did not speculate or allude to extrajudicial facts in an effort to fill gaps. His opening statement was limited to a discussion of facts that he could have expected to be able to prove by the evidence and that were, ultimately, supported by the trial testimony.⁵ See Commonwealth v. Morgan, 449 Mass. 343, 360 (2007). Furthermore, the prosecutor committed no error by using strong or charged language in describing the facts of the case. There is a distinction between “dramatic description” and appeals to emotion, and using powerful words or imagery does not necessarily carry the prosecutor over that line. See Commonwealth v. Young, 461 Mass. 198, 204 (2012).

Similarly, the prosecutor's rhetorical questions in closing were not improper because they addressed the motives and reasoning of the victim rather than the defendant. Especially in light of the judge's instructions to the jury and the prosecutor's own reminders that the Commonwealth, not the defendant, bore the burden of proof, there was no risk that the jury might perceive these questions as shifting the burden of proof to the defense. See Commonwealth v. Halstrom, 84 Mass.App.Ct. 372, 385 (2013).

Separate and distinct acts instruction. With respect to the assault and battery charge, the parties agree that the jury should have received a separate and distinct acts instruction.⁶ The Commonwealth concedes that there is a significant possibility that the...