Opinion
17-P-1108
03-19-2019
COMMONWEALTH v. DAOVILAT SISOMPHOU.
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
In this direct appeal of his conviction, after a jury trial, of aggravated rape of a child, G. L. c. 265, § 23A, the defendant argues that impermissible remarks during the prosecutor's closing argument created a substantial risk of a miscarriage of justice such that his conviction must be reversed. We affirm.
In brief summary, the evidence showed that the thirteen year old victim was raped by the defendant (the victim's aunt's boyfriend) during a sleepover with her cousins at the aunt's house. The victim awoke to find the defendant behind her in bed with his penis in her vagina. The victim disclosed the events to an adult female relative. A few weeks later, after experiencing pain in her abdomen, the victim tested positive for chlamydia, a disease that is transmitted only during childbirth or sexual contact. Around this time, the victim's aunt -- whose only sexual partner during this period was the defendant -- also tested positive for chlamydia. The defendant was also treated for chlamydia. It was reasonable to infer that the young victim contracted chlamydia from the defendant when he raped her.
The defendant argues that the prosecutor's rhetorical questions during closing argument were inflammatory and burden-shifting. He specifically points to the following statements: "What possible motive would [the victim] have to make this up? . . . What possible motive could she have to get on the stand and tell you that it happened?"
"[A] prosecutor may address the witness's lack of motive to lie and do so by asking rhetorical questions relying on the evidence presented." Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). This is "[i]n keeping with the prosecutor's ability to point out the weaknesses of the defendant's case and make a fair reply to his closing argument." Id. Rhetorical questions "may permissibly suggest that the defendant's defense is implausible based on the evidence and the reasonable inferences that can be drawn therefrom." Id. at 742. However, the questions must not "shift the burden of proof or argue that the defendant has any affirmative duty to prove his innocence," or "vouch for the credibility of witnesses." Id. at 741, 743.
Here, defense counsel focused his closing argument on the victim's lack of credibility, highlighting her failure to remember certain details, inconsistencies in her testimony, contradictions with other witnesses' testimony, and her supposedly inapposite behavior after the alleged incident. Defense counsel also pointed to the fact that no physical evidence had been collected from the scene of the crime, and to the absence of any prior relationship between the victim and the defendant. The prosecutor in her closing countered these specific points by referring to specific pieces of evidence. She then stated,
"What possible motive would [the victim] have to make this up? Why would she come in here and say it? She didn't know [the defendant]. She liked going to [her aunt's] house. She went because she liked the kids. What possible motive could she have to get on the stand and tell you that it happened? There was no connection between them before this. There was none.
"Believing what [the victim] told you is enough. That is all you need to convict him. Believing what she came in here and told you, that is it."
We consider the prosecutor's remarks "in light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial'" (citation omitted). Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). Taken in context, the prosecutor's rhetorical questions did not vouch for the witness's credibility, see Commonwealth v. Halstrom, 84 Mass. App. Ct. 372, 385 (2013), express personal opinion, see Commonwealth v. Flint, 81 Mass. App. Ct. 794, 807 (2012), shift the burden to the defendant, see Halstrom, supra, or appeal to juror sympathy. Rather, the prosecutor made an evidence-based argument that was directed at refuting the defendant's closing assertion that the victim was lying. See Commonwealth v. Polk, 462 Mass. 23, 40 (2012). We thus perceive no error in the prosecutor's use of rhetorical questions.
That said, the prosecutor's comments pointing to the victim coming to court and her motivation in "taking the stand" strayed perilously close to inviting the jury to credit the victim's testimony because she was willing to testify, and we again caution against such commentary. See Commonwealth v. Beaudry, 445 Mass. 577, 587-588 (2005); Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009). Nonetheless, even if those comments crossed the line, no substantial risk of a miscarriage of justice resulted from them. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011) (unpreserved error in closing is reviewed for substantial risk of miscarriage of justice). The evidence was very strong, and the judge gave clear and proper instructions -- both before and after closing argument -- on the Commonwealth's burden, the function of argument, and the requirement that the verdict be based on the evidence and not on emotion, sympathy, or prejudice. The judge also stressed the jury's duty to determine for themselves the credibility of witnesses.
Judgment affirmed.
By the Court (Green, C.J., Wolohojian & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 19, 2019.