Opinion
15-P-109
02-12-2016
COMMONWEALTH v. NELSON BROOKS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with one count of rape of a child, G. L. c. 265, § 23, and two counts of indecent assault and battery on a child under fourteen, both as subsequent offenses, G. L. c. 265, §§ 13B & 13B 3/4. After a jury trial the defendant was found not guilty on the rape count, and guilty on the two counts of indecent assault and battery on a child under fourteen. The defendant waived his right to a jury trial on the subsequent offense portion of the latter two counts. After a bench trial, the defendant was found guilty on each of the counts.
In this direct appeal the defendant argues that the prosecutor improperly vouched for the credibility of the victim in closing argument. In particular, the defendant points to portions of the closing in which the prosecutor said, referring to the victim, the defendant's daughter, "she was uncomfortable having to come in here and talk to you about it but she did . . .," as well as statements in closing that asserted there was no reason the victim would come to court and make up her story, and that there was no benefit to her in doing so.
We need not decide whether there was any error in the Commonwealth's closing. Because there was no contemporaneous objection we review the claimed error only to see if it created a substantial risk of a miscarriage of justice. Cf. Commonwealth v. Felder, 455 Mass. 359, 368 (2009). Assuming without deciding that there was error, we cannot conclude that it created a substantial risk of a miscarriage of justice. Most significantly, although the defendant in a statement to the police during interrogation denied raping his daughter, he confessed to the indecent assault and battery that formed the basis of the two charges of which he was convicted. Cf. Commonwealth v. Maynard, 436 Mass. 558, 570 (2002) (quotation omitted) (holding that in determining whether an error in closing created a substantial likelihood of a miscarriage of justice, the court may consider "whether the Commonwealth's case was so overwhelming that the errors did not prejudice the defendant"). Moreover, it is clear the jury did not unhesitatingly credit the victim's testimony as a result of anything the prosecutor said, as they acquitted the defendant of the rape to which she testified. Indeed, the jury acquitted the defendant of the charge he denied to the police and convicted him of the charges to which he confessed.
Judgments affirmed.
By the Court (Rubin, Maldonado & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 12, 2016.