Commonwealth v. Spencer

99 Mass.App.Ct. 1131

170 N.E.3d 370 (Table)

COMMONWEALTH

v.Kyle SPENCER.

20-P-616

Appeals Court of Massachusetts.

Entered: June 30, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of three counts of rape of a child by force, in violation of G. L. c. 265, § 22A, and three counts of indecent assault and battery on a child under fourteen, in violation of G. L. c. 265, § 13B. In this consolidated appeal, he appeals from his convictions and from the partial denial of his motion for a new trial. We affirm.

Background. We recite the facts the jury could have found, reserving certain details for discussion as they become relevant. Between 2007 and 2009, the defendant, then himself a minor, repeatedly sexually assaulted and raped his younger cousin.² In that time, the defendant, then thirteen to fifteen years old, lived with his family in a three-family home that was owned by the defendant's grandmother, who lived on the first floor. The defendant, with his parents and siblings, lived on the second floor. The victim, the defendant's younger cousin, would spend almost every weekend with her grandmother on the first floor, and she would play with her cousins who lived on the second floor as well as other children she knew in the neighborhood. The victim testified that, during that time period, the defendant repeatedly groped her, touched her vagina, and forced her to stroke his penis and to perform oral sex on him.

The defendant filed a motion for a new trial, alleging both trial errors and ineffective assistance of counsel; the Commonwealth opposed the motion. After a hearing, the trial judge allowed the motion for a new trial on two of three counts of rape of a child by force because those charges had been bound over improperly from the Juvenile Court.³ The Commonwealth later moved to dismiss those two indictments. This appeal followed.

Discussion. 1. Direct appeal. a. Prosecutorial misconduct. The defendant first argues that the prosecutor, during his opening statement and closing argument, improperly encouraged the jurors to decide the case based on their feelings, and also that he impermissibly vouched for the victim's credibility. Where, as here, trial counsel did not object to the Commonwealth's opening statement or closing argument, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Muller, 477 Mass. 415, 431 (2017) ; Commonwealth v. Silva, 455 Mass. 503, 514 (2009). The fact that defense counsel did not object, while not dispositive, is "some indication" that the now challenged statements were not unfairly prejudicial (citation omitted). Commonwealth v. Miller, 457 Mass. 69, 79 (2010). "In determining whether an argument was improper, we examine the remarks ‘in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.’ " Id., quoting Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005).

During his opening statement, the prosecutor asked the jurors to remember the "feeling" that each of them had when they spoke to the judge at sidebar during jury selection. Later, in his closing argument, the prosecutor asked the jury to "pull ... out [that feeling] and use it along with your common sense" to reach a verdict. The law is clear that a prosecutor "should not play on the sympathy or emotions of the jury." Commonwealth v. Chukwuezi, 475 Mass. 597, 609 (2016). Further, a prosecutor must take care to argue the Commonwealth's case in a way that "ensure[s] that the verdict was ‘based on the evidence rather than sympathy for the victim.’ " Commonwealth v. Tavares, 471 Mass. 430, 443 (2015), quoting Commonwealth v. Mejia, 463 Mass. 243, 253 (2012).

Here, the prosecutor's argument was not an improper appeal to sympathy or emotions. The trial judge, in his findings on the motion for a new trial, concluded that the comment was a reference to the solemnity of jury duty.⁴ Moreover, the prosecutor did not suggest to the jury "to only use their ‘feelings’ to convict [the defendant]" as the defendant claims; rather, the prosecutor reminded the jury to use their common sense in deciding guilt or innocence, an appropriate statement that was consistent with the judge's subsequent jury instructions. Also, the suggestion "to pull out that feeling" was one comment in a lengthy closing argument that otherwise was based on the evidence. Finally, the judge instructed the jury that the opening statements and the closing arguments were not evidence and that they should not be swayed by "prejudice, bias, or by sympathy, or by personal likes or dislikes towards either side"; these instructions usually are adequate to cure any errors in closing arguments. See Commonwealth v. Camacho, 472 Mass. 587, 609 (2015). We are satisfied that the challenged comments did not give rise to a substantial risk of a miscarriage of justice.

In his closing argument, the prosecutor also asked the jury, "Why would [the victim] put herself in this situation? Why would she choose to talk about these things with a group of strangers, on the record, in this formal setting? ... I'm not sure there's any motivation that's been offered."⁵ A prosecutor may not argue that a witness is credible simply because the witness testified at trial. Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). However, "[a] prosecutor may marshal the evidence in closing argument, and ... urge the jury to believe the government witnesses and disbelieve those testifying for the defendant." Id. Also, where, as here, the defense had specifically attacked the credibility of the witness, the prosecutor "may address the witness's lack of motive to lie and do so by asking rhetorical questions." Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018).

The defense theory of the case was that the victim fabricated the allegations of sexual assault because of a longstanding feud between her parents and the defendant's parents. The prosecutor was entitled to cast doubt on that theory, especially given that the victim had testified that she was not aware of any family discord during the period when she was being sexually assaulted and also that she first reported the sexual assaults years after the alleged feud. We note that, in his closing argument, defense counsel referred to the victim's credibility and believability over thirty-five times. The Supreme Judicial Court in Commonwealth v. Shanley, 455 Mass. 752 (2010), addressed this precise scenario, finding no error: "[T]he substance of the prosecutor's closing argument properly touched on the victim's motivation in appearing to testify because it was a primary issue in the case.... [T]he defense strategy was to assail the credibility of the victim by suggesting that he had a motive to fabricate the allegations of abuse .... Therefore, the prosecutor was warranted in ‘mak[ing] a fair response to an attack on the credibility of a government witness.’ Commonwealth v. Senior, 454 Mass. 12, 17 (2009), citing Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008) (noting that prosecutor's comment regarding government witnesses[’] motives to lie ‘was a legitimate attempt to defend the credibility of these two witnesses’)." Id. at 777-778. See also Commonwealth v. Polk, 462 Mass. 23, 39-40 (2012) ("Where, as here, defense counsel in his closing argument challenged the credibility of the alleged victim, a prosecutor acts properly in inviting the jury to consider whether the victim has a motive to lie, and identifying evidence that demonstrates that the victim's testimony is accurate and reliable").

As we have noted, a prosecutor may not argue that a witness is credible simply because she testified in court. See Beaudry, 445 Mass. at 587. However, to the extent the prosecutor's comments here crossed that line, they did not result in a substantial risk of a miscarriage of justice. Commonwealth v. Riberio, 49 Mass. App. Ct. 7 (2000), on which the defendant relies, is distinguishable. The principal issue in Riberio was whether the judge properly denied the defendant's motion for a mistrial after a prosecutor's opening that arguably contained a number of argumentative and problematic statements. In response to defense counsel's objection after the opening, the judge struck "only the ill-advised comment that a[n] [alleged victim] had no reason to lie." Id. at 9. This court, while affirming the convictions on the ground that the judge had responded appropriately, reiterated that "[t]elling the jury that the victims have no reason to lie is over the line of permissible advocacy." Id. at 10. In the present case, the prosecutor's rhetorical questions came in the closing argument and after the victim's credibility had been attacked repeatedly. Especially in light of the judge's instruction that closing arguments are not evidence, we see no substantial risk of a miscarriage of justice.

b. Multiple first complaint witnesses. A first complaint witness may testify to the fact of the first complaint and the circumstances surrounding the first complaint. Commonwealth v. King, 445 Mass. 217, 218-219 (2005), cert. denied, 546 U.S. 1216 (2006). "Testimony from additional complaint witnesses is not admissible." Id. at 219. Nor may the victim testify about reporting the assault to anyone other than the first complaint witness. Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 493 (2009). Where a defendant does not object to the testimony of multiple first complaint witnesses, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Aviles, 461 Mass. 60, 72 (2011).

On direct examination, the victim testified that, after she disclosed the assaults to the first complaint witness, she also told some other friends on the same day. On cross-examination, she testified that she told three friends. Finally, in response to a specific question posed by defense counsel,⁶ the victim...