Opinion
No. 15–P–1120.
11-18-2016
COMMONWEALTH v. Kevin TAVARES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, as a youthful offender, on two indictments for rape of a child by force, G.L. c. 265, § 22A. In this, his direct appeal, he raises two arguments: first, that he was entitled to be physically present at sidebar during voir dire of certain members of the venire; and second, that the prosecutor argued facts not in evidence during her closing argument. Neither of the alleged errors was accompanied by an objection at trial, so we review for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002). "A substantial risk of a miscarriage of justice exists when we have a serious doubt whether the result of the trial might have been different had the error not been made. Errors of this magnitude are extraordinary events and relief is seldom granted." Id. at 297 (quotation omitted).
1. Jury selection. The defendant argues that it was error to "exclude" him from the sidebar questioning of certain members of the venire. "A defendant has a constitutional right, Federal and State, to be present at all critical stages of a criminal proceeding, including the jury empanelment stage in which jurors are examined and peremptory challenges are exercised." Commonwealth v. White, 37 Mass.App.Ct. 757, 759 (1994). "It is ‘improper to deny to a defendant the privilege of being present at a voir dire, if an appropriate request for his presence is made ’ " (emphasis added). Commonwealth v. Owens, 414 Mass. 595, 602 (1993), quoting from Amado v. Commonwealth, 349 Mass. 716, 721 (1965).
Here, neither the defendant himself nor his counsel made a request that the defendant be present at the sidebar inquiries. Where, as here, a defendant "makes no request to be present [at sidebar], the judge takes no steps to exclude him, and counsel never objects to his absence, the issue is waived and this court will not address it on appeal." Commonwealth v. Dyer, 460 Mass. 728, 738 (2011). See Commonwealth v. Fritz, 472 Mass. 341, 347 (2015) ("The defendant's additional claim, concerning his absence from certain off-the-record conversations between the judge and several prospective jurors, is waived as he made no request to be present, the judge did not take steps to exclude him, and defense counsel never objected to his absence"). But even if we were to take up the issue and assume there were error in the judge's failure sua sponte to invite the defendant to sidebar, the defendant has made no argument—let alone showing—of prejudice. See Owens, supra at 605 (error to deny defendant's request to be present during voir dire sidebar discussions was harmless beyond reasonable doubt where "defense counsel conferred with the defendant on at least two occasions during the voir dire and before the exercise of peremptory challenges ... [and] defendant through his counsel failed to exercise all of his peremptory challenges and expressed satisfaction with the jury selected"). Indeed, the record here refutes any claim of prejudice. Only one person questioned at sidebar ended up on the jury. No objection was made to that juror below, and no concern has been raised about him or her now. In addition, defense counsel did not exercise a peremptory challenge to remove the potential juror even though the defendant had at least eight remaining peremptory challenges at his disposal. Finally, defense counsel announced the defense was content with the jury as seated, including the one juror who had been questioned at sidebar.
2. Prosecutor's closing argument. The defendant argues that the prosecutor argued facts not in evidence during her closing argument. Specifically, the defendant takes issue with the prosecutor's statement that the victim stated the defendant "was 15 years old," arguing that the victim testified only that the defendant was "like 15" and, therefore, there was insufficient evidence of the defendant's age to support a conviction as a youthful offender, G.L. c. 119, § 54. In fact, however, the victim testified that she thought the defendant was fifteen years old when she moved in with him, and she grounded that testimony against her own age at the time. Moreover, the testimony upon which the defendant relies pertained to the victim's brother, not to him. Therefore, the defendant's argument fails because it is not supported by the record.
Similarly, contrary to the defendant's contention, the prosecutor's argument summarizing the nurse's testimony was grounded in the evidence. See Commonwealth v. Mitchell, 89 Mass.App.Ct. 13, 30 (2016) ("A prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom" [quotations omitted] ). The nurse stated that the injury to the victim's hymen could have been "much older" than two to five days old.
Finally, the defendant argues that the prosecutor improperly vouched for the victim. This argument fails because the prosecutor was allowed to respond to the defendant's attack on the victim's credibility, and to argue that the victim should be believed. See Commonwealth v. Chavis, 415 Mass. 703, 713 (1993) ("[T]he prosecutor may make a fair response to an attack on the credibility of a government witness"); Mitchell, supra at 28 ("When credibility is an issue before the jury, it is certainly proper for counsel to argue from the evidence why a witness should be believed" [quotations omitted] ).
Judgments affirmed.