text:
    Robert MCEACHEN v. BOSTON HOUSING AUTHORITY & another.
    17-P-1265
    Appeals Court of Massachusetts.
    Entered: August 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Civil Service Commission.

   Robert McEachen appeals from a judgment upholding a decision by the Civil Service Commission (CSC), which determined that the Boston Housing Authority (BHA) had just cause to discharge McEachen from its employ. McEachen maintains that the Superior Court judge erred in upholding the CSC's decision because the CSC failed to provide McEachen with a de novo review, pursuant to G. L. c. 31, § 43. We affirm.

Background. On December 31, 2012, McEachen sustained a work-related injury while in the BHA's employ. He was placed on paid family and medical leave from January 4, 2013, through March 29, 2013. McEachen was then placed on unpaid medical leave. On March 19, 2014, the BHA sent McEachen and his union notice of his termination hearing. After an appointing authority hearing on April 11, 2014, the hearing officer concluded that McEachen "is unable to return to work and cannot perform the essential functions of his job." McEachen did not dispute the evidence, including medical documents, that showed he is unable to perform his job duties and that his ability to return to work as a carpenter remained undetermined. Rather, McEachen asserted that he could return to work but only in a modified duty capacity that would entail being a "carpenter's boss," which would include "supervising others and performing administrative duties." The BHA responded that such a supervisory position does not exist for an employee in McEachen's collective bargaining unit. The hearing officer found that McEachen's request "to be given a completely different job that would allow him to continue working is not reasonable," and that "it is unreasonable to expect that [the BHA] indefinitely keep [McEachen's] position open particularly in light of the [BHA's] current financial condition." The BHA subsequently terminated McEachen's employment.

McEachen appealed to the CSC, arguing that the BHA's decision to terminate him is arbitrary and capricious because it is based on illegal antiunion animus and a desire to cheat him out of his retention bonus and life insurance policy. Both parties moved for summary disposition. Following a hearing on July 24, 2014, the CSC upheld the BHA's decision, concluding that the BHA had just cause to terminate McEachen because the "undisputed facts establish that [McEachen] was incapable of performing the duties of his position as a BHA carpenter." The CSC stated in its decision that

"[t]he BHA correctly points out that an employee is not deemed unfit to perform the duties of the 'position involved' if the employee can perform those duties 'with reasonable accommodation,' this principle of reasonable accommodation does not require an employer to 'fashion a new position' for the employee nor does it require that the employee be allowed to remain on medical leave indefinitely."

The CSC dismissed McEachen's argument that the BHA acted out of antiunion animus and a desire to hurt McEachen financially. The CSC concluded that McEachen failed "to come forward with any facts to support this contention," and that "the BHA's reference to its financial condition cannot be viewed as if it was treating the termination as a 'layoff' but merely that it was going to proceed to fill the position with an employee who could actually begin to perform the job."

McEachen appealed the CSC's decision to the Superior Court, arguing that the CSC erred in entering a summary disposition and in not providing him with a de novo hearing. Both parties filed motions for judgment on the pleadings. The judge granted the BHA's motion for judgment on the pleadings, affirming the CSC's decision. McEachen filed the instant appeal, arguing that the CSC's decision and the judge's affirmance were error because, according to McEachen, the CSC failed to provide him with a de novo hearing as required under G. L. c. 31, § 43.

Discussion. We review the decision of the CSC to ensure that it is supported by substantial evidence and is not otherwise arbitrary, capricious, or an error of law. See Police Dept. of Boston v. Kavaleski, 463 Mass. 680, 689 (2012). The purpose of a de novo hearing is to find the facts anew. See Falmouth v. Civil Serv. Commn., 447 Mass. 814, 823 (2006). In the circumstances of this case, a de novo hearing was not required. When the facts are undisputed, as is the case here, the allowance of a motion for summary disposition is proper. The Standard Adjudicatory Rules of Practice and Procedure, 801 Code Mass. Regs. § 1.01(7)(h) (1998), which are relevant to the CSC, provide in part:

"When a Party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a matter of law, the Party may move, with or without supporting affidavits, for summary decision on the claim or defense. If the motion is granted as to part of a claim or defense that is not dispositive of the case, further proceedings shall be held on the remaining issues."

Here, both the BHA and McEachen filed motions for summary disposition. We see no error in the CSC's decision to enter summary disposition in favor of the BHA. Such decision is supported by substantial undisputed evidence in the record, which showed that McEachen is unable to perform the essential job duties of a BHA carpenter, that such inability is indefinite, and that there is no reasonable accommodation available that would allow McEachen to return to the job in a limited capacity. We, therefore, affirm.

Judgment affirmed.

      From January 1, 2013, through October 16, 2013, McEachen received workers' compensation benefits under G. L. c. 152, § 34, for temporary total incapacity. From October 17, 2013, through February 17, 2014, McEachen received workers' compensation benefits under G. L. c. 152, § 35, for partial incapacity.

      The notice provided McEachen and his union with the essential functions of the job that McEachen had. The notice also informed McEachen and his union that the BHA would consider a recommendation from McEachen's medical provider of "any reasonable accommodation(s) that would allow him to return to work and perform his essential job functions." The essential functions included, but were not limited to installing window frames, fitting and hanging doors, repairing stairways and railings, tack welding and cutting, and making and installing locks, knobs, hinges, and door decks. McEachen's physician wrote a letter dated March 26, 2014, to the BHA stating: "In anticipation of [McEachen's] surgery, he may return to work full-time with restrictions. He may participate in desk or administrative work. He should do no lifting, pushing, pulling or carrying with his right arm greater than [five] pounds."


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Charles A. BROWN.
    16-P-1743
    Appeals Court of Massachusetts.
    Entered: August 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Charles A. Brown, was convicted of assault and battery on a family or household member. The defendant appeals, arguing that the judge erred in admitting a recording of a 911 call made by the victim and challenging the omission of certain jury instructions. We affirm.

Background. In November, 2015, the defendant and the victim were dating. On November 17, 2015, while at the defendant's apartment, the defendant told the victim that he had had an intimate relationship with another woman. The victim began calling the defendant names and he punched her in the eye. The victim began to bleed from above her eye. The defendant grabbed the victim in the hallway, shook her and threw her on the bed in his bedroom, jumped on her back and "claw[ed]" at her, and again grabbed and pinned her to his bed. The defendant took the victim's cellular telephone (cell phone) from her, after which he let her go and she left the apartment. The defendant then went outside and again grabbed the victim. He ultimately threw the victim's cell phone at her; she fled and telephoned 911.

The victim was treated that day for the following injuries: a cut above her eye for which she received six stitches, two fractured ribs, and bruising.

Discussion. 1. 911 call. The Commonwealth moved in limine to admit in evidence a recording of the victim's 911 call, representing that the victim would testify to the necessary foundation. The judge allowed the motion with the exception of a fifteen-second section of the call. At trial, the victim testified that she telephoned 911 while walking quickly away from the defendant. While continuing the 911 call, the victim boarded a bus. Another passenger gave the victim napkins to put on her face and began asking her questions. The victim was recorded as saying that her friend's neighbor, Charles Brown, jumped on the victim and started chasing her down the street. The victim testified at trial that she said this to her fellow passenger, not the 911 operator, because she "really didn't want nobody else in [her] business." On appeal, the defendant challenges the admission of the call, contending that it was not an excited utterance because part of the statement was false.

When the Commonwealth moved to introduce the call in evidence, the judge asked defense counsel if there was an objection; defense counsel replied that there was no objection. We review for error and, if established, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). The failure to object here indicates a strategic decision. The defendant argued at trial that the victim was not credible and that she told multiple versions of what occurred. Defense counsel cross-examined the victim on her versions of what occurred, including what she herself stated on the 911 call. Defense counsel highlighted the inconsistencies in closing argument. In these circumstances, there is no error and therefore no risk of a miscarriage of justice. See id. at 298.

2. Direct and circumstantial evidence instruction. The defendant also argues that the omission of a jury instruction on direct and circumstantial evidence was error. The judge stated in conference with counsel that he would give the instruction, but omitted it when he charged the jury. The defendant contends that, because of the omission, the jury did not understand that they could infer that the victim lied about what occurred.

As there was no objection to the omission of the instruction, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. White, 452 Mass. 133, 139 (2008). We discern no such risk here as "we are not convinced that the error was 'of a type and seriousness which should lead us to reverse in the absence of a proper exception.' " Ibid., quoting from Commonwealth v. Keevan, 400 Mass. 557, 564 (1987). Here, the only evidence at trial was direct evidence. The jury were instructed to analyze the evidence before them and that they were to "determine which witnesses to believe and how much weight to give their testimony," and that they were "the sole judges of the credibility of the witnesses." Such instructions adequately instructed the jury that they were to consider the credibility and truthfulness of each witness.

3. Bowden instruction. The defendant also argues that the omission of an instruction pursuant to Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980), was an abuse of discretion.

" 'Bowden's only requirement' is that 'the judge ... not remove the inadequacy of the police investigation from consideration by the jury." Commonwealth v. Avila, 454 Mass. 744, 767 (2009), quoting from Commonwealth v. Williams, 439 Mass. 678, 687 (2003). A Bowden instruction is never required. Here, the judge explicitly stated that defense counsel could argue to the jury that the police investigation was inadequate. Defense counsel did argue that there was neither corroborating physical evidence nor eyewitness testimony to support the victim's testimony. The judge therefore did not abuse his discretion in declining to give the instruction.

4. Specific unanimity instruction. Lastly, the defendant argues that the judge erred in not providing, sua sponte, an instruction on specific unanimity when there was testimony about separate touchings in the hallway, the bedroom, and outdoors.

"[A] specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Shea, 467 Mass. 788, 798, (2014), quoting from Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995). "An instruction on specific unanimity is warranted 'when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged. There, in order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident.' " Shea, supra, quoting from Commonwealth v. Santos, 440 Mass. 281, 284-285 (2003). "However, '[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required.' " Shea, supra, quoting from Santos, supra at 285. In the circumstances of this case, we discern no error.

Judgment affirmed.

      The jury found the defendant not guilty of strangulation.

      The victim also testified that the defendant "chok[ed]" her.

      An annotated copy of the transcript of the 911 call indicates that the jury heard a portion of the call.

      The defendant was represented at trial by one attorney and two student practitioners. We refer to them collectively to avoid confusion.

      At the close of the jury charge, the judge asked to see counsel at sidebar. The sidebar conversation was not preserved in the transcript. The defendant does not suggest that counsel objected at sidebar and agrees on appeal that any error is reviewed for a substantial risk.


text:
    ADOPTION OF WANDA.
    17-P-1331
    Appeals Court of Massachusetts.
    Entered: August 9, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   After trial, a Juvenile Court judge found the mother unfit to parent the child, terminated her parental rights, and approved the plan of the Department of Children and Families (department) for adoption by the child's paternal grandmother and her husband. See G. L. c. 210, § 3. On appeal, the mother claims that the trial judge erred in terminating her parental rights without clear and convincing evidence of current unfitness. In addition, she claims that the judge erred in declining to order postadoption visitation. We conclude there were no such errors and therefore affirm.

1. Background. The child was born in July, 2013, and tested positive for marijuana at that time. Due to drug withdrawal symptoms, the child was transferred to the special care nursery (SCN). In August, 2013, when the child was nine days old, the department filed an emergency care and protection petition and was granted temporary custody. The next day, the department determined that allegations of neglect by the mother were supported, see G. L. c. 119, § 51B, and opened the case for services. Initially, the mother was allowed daily unsupervised visits with the child at the hospital. At the end of August, 2013, after hospital staff reported concerns about the mother's behavior toward the child and the SCN nurses, the department changed the mother's visitation to weekly supervised visits.

The child remained in the hospital until September, 2013, at which point she was placed in a foster home. In January, 2014, when the child was approximately six months old, she was placed with her paternal grandmother and the grandmother's husband, who are now her preadoptive parents. In August, 2014, the mother stipulated that the child was in need of care and protection and the department obtained permanent custody of the child. Both before and after this stipulation, the mother failed to consistently engage in services to address her mental health and substance abuse issues. Her visits with the child were sporadic due to those and other issues, including homelessness and incarceration. She had a dozen psychiatric hospitalizations after the child's birth and was incarcerated at least three separate times. In November, 2015, the department filed a petition for review and redetermination, indicating its intent to seek decrees terminating parental rights.

By the time of trial in January, 2017, the child was three and one-half years old. She had been living with her paternal grandmother and the grandmother's husband for the past three years. The mother had been incarcerated for the past year, had been released shortly before trial, and had not seen the child for four months. The mother did not appear for trial.

2. Discussion. To terminate parental rights and to dispense with parental consent to adoption of a child, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests. See Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). The judge's decision will remain undisturbed unless "the findings of fact are clearly erroneous or ... there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).

"Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). "Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period." Adoption of Ilona, 459 Mass. at 60. A "faint hope" that the parent will become fit at some point in the future, without more, will not defeat a finding of continuing unfitness. Id. at 59-60. In making this decision, the judge may properly take into account "prognostic evidence derived from an ongoing pattern of parental neglect or misconduct." Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).

a. Parental unfitness. The mother argues that the evidence of unfitness was not clear and convincing because the bulk of it was stale, and evidence that was more current was meager and vague. She contends that the bulk of the judge's findings relate to the first three months of the child's life and that very few findings relate to the time period after she stipulated to unfitness. It is true that the focus of a review and redetermination hearing is on new developments that have occurred since the prior judgment; however, the judge does not start with a blank slate. See Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 570 (2009). Here, the judge properly considered evidence going back to the child's initial placement with the department for its prognostic value. This evidence showed that the mother had long-standing and serious issues with substance abuse, mental health, and criminal involvement which directly interfered with her ability to parent the child. Yet, she refused help that was offered to her and otherwise failed to take steps to remedy these issues.

To the extent that the more current evidence of the mother's fitness was less than comprehensive, it was still sufficient to establish that the mother's condition had not improved. See Adoption of Don, 435 Mass. 158, 165 n.10 (2001) (evidence of "ongoing patterns of parental neglect or misconduct, especially 'where unrebutted by more recent proof of parental capacity, [can] provide[ ] a satisfactory basis for a finding of current unfitness' " [quoting from Custody of a Minor (No. 1), 377 Mass. at 883 ] ). Additionally, the judge was warranted in drawing a negative inference from the mother's failure to appear at trial. See Custody of Two Minors, 396 Mass. 610, 616 (1986). There was no abuse of discretion in the judge's determination that the mother was unfit.

b. Postadoption visitation. The mother also claims that the judge abused her discretion in declining to order postadoption visitation where there was evidence that the adoptive mother was hostile toward the mother.

A trial judge has the equitable authority to order visitation between a child and a parent whose parental rights have been terminated, "where such visitation is in the child's best interest." Adoption of Ilona, 459 Mass. at 63. Here, the judge found that "there is no evidence that further visits between [the mother and the child] would cause harm to [the child] and they may be in her best interests." She nonetheless declined to order postadoption visitation, leaving any such visitation up to the discretion of the adoptive parent. She was not required to order visitation. Rather, even if a judge determines that postadoption visitation is in the best interests of the child, the judge "must balance the benefit to the child of an order of visitation that will provide assurance that the child will be able to maintain contact with the biological parent, with the intrusion that an order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in their child's best interest." Id. at 64-65.

Here, the judge stated that postadoption visitation may be in the best interests of the child, but she made no finding that there was an existing significant bond between the child and the mother, who had never lived together. See Adoption of Vito, 431 Mass. 550, 563 (2000) (primary consideration in determining best interests is whether there is significant existing bond between child and biological parent). On the other hand, the judge did find that the child had lived with the preadoptive parents for three years, that the child had developed a strong nurturing bond with them, and that the child was thriving in their care. See ibid. (where child had strong bond with adoptive family and little evidence of bond with biological parent, order of postadoptive contact was unwarranted). The judge did not abuse her discretion in declining to order postadoption visitation.

Decree affirmed.

      The child's father stipulated to his unfitness and entered into an open adoption agreement at the time of trial. Accordingly, he is not a party to this appeal.

      The allegations were supported on the basis of substance abuse, possible domestic violence between the mother and father, the mother's refusal to engage in therapy to address her mental health issues, and the mother's refusal to accept offers of shelter placements and assistance to help her retain custody of the child.

      The mother also challenges the validity of two specific findings. She disputes finding 39, that she was discharged from a halfway house prior to trial, as unsupported by the evidence. She disputes finding 83, that she relapsed in 2015 and was hospitalized after being found unconscious, as a reference to stricken material. As neither finding was "critical to the overall conclusion of parental unfitness," any error in this regard does not warrant reversal. Adoption of Helen, 429 Mass. 856, 860 n.7 (1999).

      The mother contends that only seventeen of the judge's 103 factual findings concern the more recent time period, after the August, 2014, stipulation of unfitness. Among those seventeen findings are that, in May, 2015, the mother advised her social worker that she was hospitalized after attempting suicide by jumping off the Merrimack bridge; the mother did not take her medications as prescribed; the mother did not maintain suitable housing -- when she was not incarcerated or hospitalized, she stayed with friends and also traded sex for housing; the mother's visits with the child were sporadic due to the mother's various issues; the mother was incarcerated from February, 2016, to December, 2016; and the mother did not appear for trial in January, 2017. These few, but significant, findings amply demonstrate that the mother's fitness had not improved.

      We decline the mother's request to adopt a rule that would require trial judges to give special scrutiny to kinship adoptions. The issue was not raised before the trial judge. In any event, the trial judge presumably already took into consideration the relationships among all the parties in exercising her discretion regarding postadoption visitation.


text:
    COMMONWEALTH v. Jimmy DIAZ.
    17-P-1002
    Appeals Court of Massachusetts.
    Entered: August 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of resisting arrest, see G. L. c. 268, § 32B. On appeal, he argues that (1) the judge's instruction to the jury on the elements of resisting arrest were inadequate, (2) trial counsel was ineffective for soliciting allegedly prejudicial testimony during his cross-examination of a police officer, and (3) the evidence was insufficient to support the conviction. We affirm.

Background. We summarize the relevant facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On the afternoon of July 21, 2015, Sergeant Julio Toledo was driving an unmarked police vehicle on Chestnut Street in Springfield with two other officers, Thomas Hervieux and Robert Gayle, when he observed a vehicle with a broken tail light. All three officers were in uniform. Toledo activated his vehicle's lights and siren upon which the driver of the car, the defendant, pulled over and stopped. When Toledo approached the driver's side of the car, the defendant had slumped down in his seat and was "scrambling" around brushing "stuff" off of his chest. Toledo instructed the defendant to place his hands on the steering wheel, and when he did not do so, Toledo opened the car door. He noticed a small (twelve-inch) baseball bat between the seat and the door. Upon seeing the bat, Toledo held the defendant's arms and ordered him out of the car. The defendant did not comply, telling Toledo to "Get the fuck off me."

Toledo and Hervieux removed the defendant from the car and placed his hands on the hood. Ignoring an order not to move his hands, the defendant put his hands in his pockets and clenched his fists. At this point, a bystander yelled that the defendant had something in his hands. The officers attempted to open the defendant's hands, whereupon the defendant began to flail his arms, kicked Toledo's leg, and then kneed him in the torso. Hervieux intervened and forced the defendant to the ground, where a struggle ensued. The officers eventually managed to handcuff the defendant, who was then transported to the police station. During the ride to the station, the defendant apologized for his behavior.

The defendant testified at trial and provided a different version of events. According to the defendant, he had fully complied with all instructions given by the arresting officers and had not struggled against them. In particular, the defendant denied flailing his arms or kicking his legs. The defendant also presented evidence from which the jury could conclude that his brake light was not broken. Earlier that same day, the defendant had taken his car for an oil change at a local Jiffy Lube. The manager of the Jiffy Lube testified that based on the defendant's receipt from the oil change, all indicator lights on the car were working. The receipt was admitted in evidence.

Discussion. 1. Jury instructions. The judge instructed the jury on the offense of resisting arrest and included supplemental instructions on police use of unreasonable or excessive force and unlawful arrest not being a defense, in accordance with the Criminal Model Jury Instructions for Use in the District Court. See Instruction 7.460 of the Criminal Model Jury Instructions for Use in the District Court (2009). During the course of the deliberations, the jury asked to be reinstructed on the offenses of assault and battery on a police officer and resisting arrest. However, when the jury were brought into the court room to be reinstructed, the foreperson informed the judge that the jury no longer needed to be reinstructed on resisting arrest. The judge then repeated his earlier instruction on the elements of assault and battery on a police officer, including the supplemental instruction on the defendant's right to act in self-defense in circumstances where the police use unreasonable or excessive force. Although the defendant did not object to the instructions as given, he now claims that the judge's original supplemental instructions on resisting arrest were confusing, and that the judge erred by not reinstructing the jury on resisting arrest, even though the jury withdrew their request to be reinstructed.

In the absence of an objection, our review is limited to determining whether there was error, and if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013). There was no error here. The judge properly instructed the jury as to the elements of resisting arrest and self-defense, including the use of unreasonable police force. The judge had "considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration," Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444 (2018) (quotation omitted), and we discern no abuse of that discretion in the judge's clarification of his supplemental instructions. Further, as the jury withdrew their request for reinstruction on resisting arrest, the judge properly limited his reinstruction to the elements of assault and battery on a police officer. Cf. Commonwealth v. Leahy, 445 Mass. 481, 500 (2005) ("A judge is not automatically required to repeat the whole or any part of his original instructions to the jury," even when faced with a jury request for reinstruction [quotation omitted] ).

2. Ineffective assistance of counsel. During his cross-examination of Toledo, defense counsel elicited testimony about the twelve-inch bat in the defendant's car. After first establishing through his questions that the defendant never grabbed or reached for the bat, defense counsel asked whether, "in the craziest world, he [the defendant] could have taken the bat and started beating you [Toledo] with it, right?" Toledo responded "Heaven forbid, but yes, he could have." For the first time on appeal, the defendant argues that defense counsel had no reasonable strategic basis for soliciting this testimony, which, he alleges, undercut his defense by emphasizing the officers' concern for their safety.

We generally do not review claims of ineffective assistance of counsel without the benefit of a motion for a new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). We address such claims on direct appeal only "when the factual basis of the claim appears indisputably on the trial record." Id. at 811 (quotation omitted). Where, as here, the claim of ineffectiveness is based on a tactical decision, a "challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Ibid., quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). However, even in the absence of a new trial motion, we are confident that the defendant was not deprived of his constitutional right to the effective assistance of counsel.

"In order to prevail ... the defendant must demonstrate that (1) defense counsel's conduct fell 'measurably below that ... [of] an ordinary fallible lawyer' (performance prong), and (2) he was prejudiced by counsel's conduct ... (prejudice prong)." Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The conduct "[a]t issue here is a strategic choice, and the question is whether that strategic choice was ... 'manifestly unreasonable.' " Commonwealth v. Hudson, 446 Mass. 709, 715-716 (2006). There was nothing unreasonable about asking Toledo whether the bat was within the defendant's reach where (1) evidence of the bat's presence had already been introduced, and (2) the evidence was uncontroverted that the defendant did not use the bat. To the contrary, it was reasonable to point out to the jury that the defendant could have escalated the fight by using the bat, but did not do so. There was no ineffective assistance of counsel.

3. Sufficiency of the evidence. The defendant moved for required findings of not guilty at the close of the Commonwealth's case as well as at the close of all the evidence. Both motions were denied. In these circumstances, "[w]e [first] consider the state of the evidence at the close of the Commonwealth's case to determine ... whether the Commonwealth [had] presented sufficient evidence of the defendant's guilt to submit the case to the jury." Alden, 93 Mass. App. Ct. at 444 (quotations omitted). We evaluate the sufficiency of the Commonwealth's evidence presented in its case-in-chief in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 676-677, and conclude that the Commonwealth met its burden of proof.

"A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor ... by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another."

G. L. c. 268, § 32B(a ), inserted by St. 1995, c. 276. "[T]he crime is committed, if at all, at the time of the 'effecting' of an arrest." Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). An arrest occurs when there is (1) "an actual or constructive seizure or detention of the person," (2) "performed with the intent to effect an arrest," (3) that is "so understood by the person detained." Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008), quoting from Grandison, supra. "The standard for determining whether a defendant understood that he was being arrested is objective -- whether a reasonable person in the defendant's circumstances would have so understood."Grant, supra.

Here, the Commonwealth's evidence established that after the defendant was pulled from his car by two uniformed police officers for, among other reasons, failing to put his hands on the steering wheel, he refused a command to keep his hands on the hood of the car. Instead, he kept his hands clenched in his pockets and kicked (and kneed) the officer (Toledo) who removed his hands and attempted to pry open his fist. The defendant was then placed on the ground where he continued to struggle "violent[ly]" before he was placed in handcuffs. We conclude that, viewing this evidence in the light most favorable to the Commonwealth, a reasonable person in the defendant's circumstances would have understood that he was being arrested by the time he was placed on the ground. See Grant, supra. The defendant's continued struggle constituted an effort to prevent that arrest. Accordingly, the evidence was sufficient to satisfy a rational trier of fact of the elements of the crime beyond a reasonable doubt and the defendant's motion for a required finding of not guilty filed at the close of the Commonwealth's case was properly denied. See Commonwealth v. Sylvia, 87 Mass. App. Ct. 340, 343 (2015). See also Commonwealth v. Dobbins, 79 Mass. App. Ct. 555, 556 (2011).

We next consider the defendant's motion at the close of all the evidence, "to determine whether the Commonwealth's position as to proof deteriorated after it closed its case." Alden, 93 Mass. App. Ct. at 445. Deterioration occurs only where the defendant has presented "contrary evidence ... so overwhelming that no rational jury could conclude that the defendant was guilty." Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381 (2017) (quotation omitted). Where, as here, the Commonwealth's otherwise sufficient evidence has been contradicted only by the defendant's uncorroborated testimony, there has been no deterioration. See Alden, supra. The judge properly denied the defendant's second motion for a required finding of not guilty.

Judgment affirmed.

      The jury acquitted the defendant of two additional charges arising from the same incident: disorderly conduct, see G. L. c. 272, § 53, and assault and battery on a police officer, see G. L. c. 265, § 13D.

      Prior to trial the defendant filed a successful motion in limine to exclude evidence that he was brushing off marijuana from his shirt and the front seat.

      Specifically, the defendant claims error in the judge's specification that the first portion of his supplemental instructions -- those on excessive force and self-defense -- applied to both the assault and battery on a police officer and resisting arrest charges, whereas the instruction on unlawful arrest pertained only to resisting arrest.

      "Other points, relied on by the defendant[ ] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Kenneth WARD.
    17-P-440
    Appeals Court of Massachusetts.
    Entered: August 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Kenneth Ward, was convicted of five counts of rape of a child and six counts of indecent assault and battery on a child. On appeal, the defendant claims that the judge improperly denied him several peremptory challenges of prospective jurors, that various statements were introduced in evidence in violation of the first complaint doctrine, and that the prosecutor made impermissible and prejudicial statements in her closing argument. We affirm.

1. Factual background. The offenses arise from the defendant's relationship with two young girls in his girl friend's extended family: Amy and Barbara. , Amy is the defendant's girl friend's niece and Barbara is Amy's younger half-sister.

When she was a child, Amy would visit her father, who lived in a house with a number of family members, including Amy's aunt, the defendant's girl friend (aunt). Amy testified that beginning when she was "a little girl in elementary school," the defendant would sexually abuse her.

The first time this happened, she was five or six years old, and was watching cartoons on a bed at the house shared by her father and aunt. The defendant put a pillow over her eyes, pulled down her pants and underwear, and put his tongue and hands on her vagina. When he did this, she urinated on herself. The incident ended when the defendant heard someone approach and quickly put her clothes back on.

The abuse continued over time, and when Amy was eight or nine, the defendant moved into a separate apartment with Amy's aunt and their infant son. Amy visited her aunt's apartment frequently on the weekends and after school, and the defendant would sexually abuse her every time she stayed at their apartment. The majority of the abuse happened in her cousin's room, where she would sleep when she stayed with them.

After everyone was asleep, the defendant would come into the room and pull Amy's pants down. He would put his tongue on and in her vagina, and touch her vagina and chest with his hands. He also sometimes put her hand on his penis and used it to masturbate himself. He would not speak to her during the assaults, a number of which occurred while Barbara was sleeping in the same room.

As Amy continued to grow older, the offenses continued, but she "gained a little bit of courage" and began to push the defendant away physically. As she became stronger, she noticed that he attempted abuse less and less frequently, and eventually stopped altogether when Amy was in high school. Ultimately, during a period of time in high school after the assaults had ended, Amy first disclosed the abuse to a boy friend, and made him promise not to tell anyone about what she had told him.

Barbara testified that because of her relationship with Amy, she was very close to Amy's aunt while growing up, and stayed at the apartment the aunt shared with the defendant approximately every other week. The defendant began to sexually abuse Barbara when she was six years old, waking her up by touching her chest under her shirt. While she pretended that she was asleep, he pulled down her pants, touched and penetrated her vagina with his fingers, and put her hand on his penis. When he was done, he pulled her pants back up.

After this, the defendant would sexually abuse Barbara each time she stayed at his home, always touching her chest and digitally penetrating her vagina, and sometimes using her hand to touch his penis. When she was eight or nine years old, the defendant also began putting his tongue on and in her vagina. When she was nine, he began to penetrate her vagina with his penis. He did not speak during these assaults, which continued until Barbara was fourteen or fifteen years old.

Barbara first disclosed the abuse to a close friend when she was in high school. Shortly after this, she and Amy disclosed the abuse to each other.

2. Discussion. a. Juror bias. The defendant challenges the judge's refusal to excuse for cause a member of the venire who, through "therapy or 12-step groups," had been acquainted with both perpetrators and victims of sexual violence. The defendant used a peremptory challenge to remove that juror, juror number (no.) 112, and later stated for the record his intent to use peremptory challenges to remove other jurors had his challenges not already been exhausted. Accordingly, the defendant's challenge of juror no. 112 for cause is preserved for review. See Commonwealth v. Clark, 446 Mass. 620, 629 (2006).

When conducting voir dire, a judge is required only to "determine whether jurors [are able to] set aside their own opinions, weigh the evidence (excluding matters not properly before them), and follow the instructions of the judge." Commonwealth v. Leahy, 445 Mass. 481, 495 (2005), quoting from Commonwealth v. Stroyny, 435 Mass. 635, 639 (2002). "A finding that a juror is impartial will not be overturned on appeal unless the defendant makes a clear showing of abuse of discretion or that the finding was clearly erroneous." Commonwealth v. Emerson, 430 Mass. 378, 384 (1999).

Here, during individual voir dire, the trial judge gave juror no. 112 a short summary of the case, indicating that it involved allegations of repeated incidents of sexual abuse of children. The judge then asked if there was anything about the allegations that would affect the juror's ability to afford the defendant a fair trial, and the juror answered, "I don't think so." When asked whether he or anybody he knew was a victim of sexual assault, the juror stated that he had participated as a member of therapeutic groups that included adults who had been sexually assaulted as children. When the judge asked if, in light of those connections, he could render a fair, just, and impartial verdict based on the evidence, the juror responded, "I think it would certainly make me alive to the realities of the consequences for someone who is a victim." The judge then refocused the juror on the original question, asking if he thought he "could do it," and the juror responded in the affirmative. Later in the voir dire, the juror indicated that he had also been acquainted with people "through those same circles" who had perpetrated sexual assaults. When asked if, given this, he would be able to render a fair, just, and impartial verdict in the case, he responded, "Yes. My sense is that it would be a wash. Yes."

"As a general principle, it is an abuse of discretion to empanel a juror who will not state unequivocally that he or she will be impartial." Commonwealth v. Colton, 477 Mass. 1, 17 (2017), citing Commonwealth v. Long, 419 Mass. 798, 804 (1995). Nonetheless, "[a] potential juror's use of seemingly equivocal language, such as the word 'probably,' is not determinative of the juror's ability to be impartial" (emphasis added). Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 274 (2002), citing Commonwealth v. Wilborne, 382 Mass. 241, 254 (1981) (permissible to empanel juror who "did not think" her friend's experience as a rape victim would affect her ability to be impartial); Commonwealth v. Ascolillo, 405 Mass. 456, 459-460 (1989) (permissible to empanel juror whose final answer was "[n]o, I don't think so," as to whether certain experiences would make him partial).

Here, juror no. 112 repeatedly stated that despite knowing individuals who had had experiences with sexual assault, he could nonetheless be impartial in evaluating the case. The juror's responses could reasonably be interpreted as unequivocal, and the judge implicitly found them so. The "trial judge was in the best position to evaluate [the juror's] credibility," and based on his observations of the juror's demeanor during questioning, he "was entitled to accept [the juror's] representation of impartiality." Commonwealth v. Ayoub, 77 Mass. App. Ct. 563, 566 (2010). There was no error.

b. Peremptory challenges. The defendant argues that the judge erroneously denied his request for two additional peremptory challenges when, after he had exhausted his sixteen initial challenges, two seated jurors were excused for hardship. He contends that had he known that the jury had three seats left to fill (rather than a single seat), he would have chosen to use his challenges differently. The defendant cites no authority, nor is this panel aware of any authority, in support of the proposition that a judge who unexpectedly excuses a sitting juror during empanelment is mandated to offer additional peremptory challenges to the parties. The defendant received and exercised the sixteen peremptory challenges to which he was entitled, pursuant to Mass.R.Crim.P. 20, 378 Mass. 889 (1979). "[T]here is no support in this record that additional challenges were required in order to obtain an impartial jury." Leahy, 445 Mass. at 499, quoting from Commonwealth v. Lattimore, 396 Mass. 446, 450 (1985).

c. First complaint. The defendant claims that evidence presented by the Commonwealth at trial gave rise to multiple violations of the first complaint doctrine, and created reversible error. Specifically, the defendant challenges testimony regarding a conversation between Amy and Barbara about the defendant's abuse, and testimony regarding the content of Barbara's sexual abuse intervention network (SAIN) interview. We review for abuse of discretion. See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 583 (2013).

i. Conversation between Amy and Barbara On direct examination, the prosecutor elicited from Amy only that she had decided to talk with Barbara at some point about "what had happened," and that she did so in August of 2010. Of the short series of questions eliciting this information, the defendant objected only to the question "do you remember when that was?"

On cross-examination of Amy, defense counsel revisited this conversation repeatedly. He asked whether Barbara had indicated during the conversation that she had told a friend before telling Amy about the abuse. He asked as well whether during the conversation Amy had told Barbara about a dream she had had about the defendant. He also extensively questioned Amy about her and Barbara's life circumstances and family relationships at the time of the conversation.

Defense counsel continued to explore the conversation on cross-examination of Barbara, inquiring about similar topics, and additionally asking whether the conversation included discussion of their mother. He then cross-examined Barbara extensively about prior statements she had made identifying the August, 2010, conversation with Amy as the first time she had disclosed the abuse, in contrast to her trial testimony.

On redirect, the prosecutor asked Barbara if her "whole conversation in August of 2010 [with Amy was] about the dream." Barbara responded in the negative, and over repeated objections, the prosecutor elicited a description of the conversation:

"She called me and said that she had a dream that Kenny was out to get her. And I said, what do you mean. And she said that he was trying to kill her. And I said, why are you having dreams like that.... She asked me did Kenny ever do anything to me. I said, what do you mean. She said, did he ever touch you. And I told her, yes."

Barbara then testified that Amy had told her "what had happened to her" as well. On recross, defense counsel again examined Barbara as to her inconsistent statements regarding her first disclosure of abuse.

We discern no prejudice from any error in the Commonwealth's introduction of evidence regarding the conversation between Barbara and Amy, as the conversation formed an essential part of the defense at trial. See Commonwealth v. McCoy, 456 Mass. 838, 851 (2010) ("Where the inconsistencies contained in the cumulative first complaint testimony were more important to the defense than the Commonwealth, there is no harm to the defendant"). That Amy and Barbara discussed the abuse in August of 2010 was essentially part and parcel of the defense case. Throughout the trial, the defendant forcefully argued that in the summer of 2010, the two collaborated in fabricating the allegations in order to gain sympathy from family members while managing difficult personal circumstances. He also argued that one of the sisters (Barbara) was not credible because she was inconsistent in who she claimed she had first disclosed the abuse to.

Testimony elicited by the prosecutor about the content of the conversation "contained no repetition of the horrific details of the abuse" and was fairly brief. Commonwealth v. Revells, 78 Mass. App. Ct. 492, 499 (2010). Because the challenged testimony was not unduly inflammatory and, most importantly, because the defendant expansively capitalized on it throughout the trial, its admission did not prejudice the defendant.

ii. SAIN interview. Defense counsel cross-examined Barbara extensively about her SAIN interview, inquiring about the procedure and setting of the interview, and playing a small portion of it for the jury. He then highlighted the contradiction between Barbara's trial testimony and statements made in her SAIN interview as to the identity of the first person she had told of the abuse, and the age at which the abuse began.

Defense counsel inquired of Barbara whether she had said during the SAIN interview that she "didn't have a good memory of what happened," and that she did not recall what the defendant did to her at one of his residences. He elicited that she had said during the SAIN interview that she thought Amy would be present during the interview, that she wanted her present, and that she had a "better recollection" of what happened when Amy talked about it. He additionally asked whether she had "rehearse[d]" her testimony with people at the district attorney's office prior to trial.

On redirect, the prosecutor elicited a brief summary of Barbara's SAIN interview. Over the defendant's objection, Barbara testified that she had told the SAIN interviewer that the defendant "made [her] touch him," touched her breasts and vagina, "performed oral sex" on her, kissed her, and put his penis "inside of [her]." At the conclusion of this series of questions, the prosecutor asked, "And all those details you told the interviewer, are those the same things that you've testified about?" Barbara responded in the affirmative.

The brief summary of Barbara's SAIN interview was proper. The defendant's cross-examination of Barbara insinuated that she was, at the time of the SAIN interview, unable to recall the abuse in any meaningful way without contemporaneous coaching from Amy. It was proper to allow the Commonwealth to elicit evidence in summary form demonstrating that Barbara's memory of the assaults at the time of the SAIN included the pertinent details of the offenses.

The first complaint doctrine "does not exclude testimony that 'is otherwise independently admissible' and serves a purpose 'other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations.' " McCoy, 456 Mass. at 845, quoting from Commonwealth v. Arana, 453 Mass. 214, 220-221, 229 (2009). Here, admission of subsequent complaint testimony was proper because it "was received for the independent purpose of rebutting the inferences raised by the defendant's inquiries ... and was necessary for a fair understanding of the Commonwealth's case." Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009). There was no error in Barbara's summary.

We note, however, that Barbara's testimony affirming that the details she had told the SAIN interviewer were "the same things that [she had] testified about," was not admissible. See Revells, 78 Mass. App. Ct. at 499 (improper for victim to testify that she told police "everything that [she] told the jury here today"). Such a statement amounts to improper self-corroboration. Regardless, as the erroneously admitted statement was fleeting and insignificant in the context of Barbara's testimony, the evidence had " 'but very slight effect,' if any." Commonwealth v. Place, 81 Mass. App. Ct. 229, 233 (2012), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

d. Opening statement. The defendant argues that in her opening statement, the prosecutor improperly appealed to the jurors' emotions by referring to him as a "child molester" and to the offenses as "disgusting criminal acts that he perpetrated on [Barbara's and Amy's] young bodies."

"The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence." Commonwealth v. Staines, 441 Mass. 521, 535 (2004), quoting from Commonwealth v. Croken, 432 Mass. 266, 268 (2000). Use of the phrase "child molester" was descriptive, and not improper. We note that our courts have used the phrase "child molester" to describe an individual who has committed contact sexual offenses against children. See, e.g., Bisazza's Case, 452 Mass. 593, 594 (2008) ; Commonwealth v. Medina, 64 Mass. App. Ct. 708, 717 (2005). That the defendant committed such sexual offenses against Amy and Barbara when they were minors was precisely what the Commonwealth was attempting to prove at trial. To the extent that the phrase "was inflammatory, that was inherent in the odious ... nature of the crime[s] committed." Commonwealth v. Johnson, 429 Mass 745, 749 (1999), quoting from Commonwealth v. Sanchez, 405 Mass. 369, 376 (1989).

The prosecutor's characterization of the offenses as "disgusting" was better left unsaid, but ultimately falls into the category of "merely 'enthusiastic rhetoric.' " Commonwealth v. Barbosa, 477 Mass. 658, 669 (2017), quoting from Commonwealth v. Simpson, 434 Mass. 570, 586 (2001). Any impropriety in the characterization was ameliorated by the judge's clear instructions that opening statements are not evidence.

e. Closing argument. During and after the prosecutor's closing argument, the defendant made several objections, and moved for a mistrial. His objections were overruled, and his motion was denied. On appeal, the defendant raises various claims of error in these rulings, arguing that the errors were prejudicial and require reversal.

Where a defendant objects to statements in the Commonwealth's closing argument, "the standard for determining whether a conviction must be reversed ... is whether [any] improper statements made by the prosecutor 'constituted prejudicial error.' " Commonwealth v. Rosario, 430 Mass. 505, 515 (1999), quoting from Commonwealth v. Daggett, 416 Mass. 347, 352 n.5 (1996). We evaluate statements made during closing argument "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). We note that during the trial, the judge instructed the jury multiple times that the statements of the lawyers are not evidence.

i. Reasonable doubt. The defendant argues that the prosecutor made two remarks during her closing that improperly minimized the Commonwealth's burden to prove the defendant's guilt beyond a reasonable doubt. He objected to each contemporaneously. The first of these remarks was as follows:

"[T]he Court is going to instruct you on reasonable doubt. Reasonable doubt is not some metaphysical standard set high in the sky.... It is a standard used by juries in this Commonwealth and grounded in common sense."

"[I]t was not good practice for the prosecutor to discuss the definition of 'reasonable doubt' in the closing argument." Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 53 (2003). When viewed as a whole and in the context of the entire closing argument, however, "it is apparent that the prosecutor was attempting ... merely to suggest that the jury rely on common experience and common sense in reaching their verdicts." Commonwealth v. Cook, 419 Mass. 192, 203 (1994).

To the extent that the statement improperly minimized the Commonwealth's burden, the judge fully and properly instructed the jurors on reasonable doubt, reminding them that they must accept the law as he instructed them. He addressed the prosecutor's argument, noting that though "[c]ounsel made comment of the burden of proof ... this is the charge on it, and I ask you to be guided by this charge on the issue of burden of proof." "That was the last word the jury heard on the subject and cured any misimpression the prosecutor's misstatements might have caused." Commonwealth v. Snow, 30 Mass. App. Ct. 443, 447 (1991). Accord Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 385 (2003) (any prejudice resulting from prosecutor's statements in closing, which "tended to trivialize the concept of reasonable doubt," was cured by judge's instructions).

The defendant also challenges the final line of the prosecutor's argument: "Yours is not the search for doubt but ... the search for truth." Though it was not appropriate for the prosecutor to define the jury's role, the remark was ultimately harmless. See Commonwealth v. Lanoue, 392 Mass. 583, 590-591 (1984). See also Commonwealth v. Randolph, 415 Mass 364, 367 (1993. Cf. Commonwealth v. Hubbard, 69 Mass. App. Ct. 232, 241 n.5 (2007).

ii. Impermissible vouching. The defendant contends that the prosecutor made three comments during her closing argument that improperly suggested to the jury that Amy and Barbara should be believed because they were willing to testify at trial and had no motive to lie.

"[T]here is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie." Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). A prosecutor may argue that a witness had no motive to lie as a "fair response to an attack on the credibility of a government witness." Commonwealth v. Smith, 450 Mass. 395, 408 (2008), quoting from Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). A prosecutor may not, however, "suggest the jury should believe a witness merely because the witness testified." Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 234 (2013).

We review each of the three challenged statements in turn, in light of those principles. The first is as follows:

"[The defendant] didn't think of the fact that those two girls were going to come into this courtroom and tell us their secret. The older girls now had strength who found the words, to confront him in this room, and tell a room full of strangers exactly what he did to their bodies."

The prosecutor made this statement in the course of an introduction to her argument suggesting that the defendant believed he had committed "the perfect crime." After pointing out that at the time of the offenses, Amy and Barbara were "two little well behaved girls," in a "loving family ... who want[ed] to trust each other," she suggested that the defendant did not account for the fact that the girls would grow up and ultimately disclose the offenses.

The challenged statement is somewhat overwrought in tone, and "crept perilously close to the line" by alluding to the potential embarrassment of testifying. Deloney, 59 Mass. App. Ct. at 53. Nevertheless, the statement was introductory in nature, and did not advance the impermissible inference that the jury should find the victims credible by virtue of their testifying. Contrast Olmande, 84 Mass. App. Ct. at 234 (prosecutor's remark improper where she suggested "there is only one thing that would motivate" victim to come to court and "talk about events that are extremely humiliating in front of a room of strangers ... and that's the truth, because she's telling the truth"). In context, the statement was permissible rhetoric. See Commonwealth v. Anderson, 411 Mass. 279, 287 (1991) (jury had capacity to "discount hyperbole" in prosecutor's remarks made with "dramatic flourish").

The second statement the defendant challenges is:

"What did they gain? [The cousin], the beloved cousin. What did they gain? Think about [Barbara] talking about how hard it is to lose [that cousin]. They have gained nothing."

The prosecutor made this statement while discussing the rifts arising in Amy and Barbara's family after the disclosure of abuse, arguing that they gained nothing from the disclosure because the family was "torn apart by [it]." The argument was a permissible response to the defendant's suggestion that the victims fabricated the story specifically in order to get their family to "rally behind [them]," and to get "sympathy out of people, to get love and care and affection out of people."

Third, the defendant challenges the prosecutor's statement, "[Barbara] and [Amy], no motive. No way. Painful details, painful consequences of telling." Though inartful, the statement did not constitute error. The prosecutor was entitled to argue that Amy and Barbara had no motive to lie as a response to the defendant's forceful argument that the two had fabricated the abuse together to gain family support. Though the phrase "[p]ainful details" is unfortunate, it appears in context to have been a reference to the level of detail in the witnesses' testimony, rather than to any subjective discomfort the testimony may have caused Amy and Barbara.

To the extent that the jury may have misunderstood this reference, the remark was brief and fleeting, and gave rise to no prejudice in the context of a closing argument spanning approximately twenty pages of transcript. See Deloney, 59 Mass. App. Ct. at 53 (no prejudice in "brief error at the conclusion of a closing argument that spanned eleven pages").

iii. Disparagement of defense. The defendant argues that a number of statements in the prosecutor's closing argument constituted unfair disparagement of the defense and burden-shifting. In particular, he challenges statements in which the prosecutor suggested that defense counsel was making an "illogical, unfounded accusation" against Amy, and that he "want[ed the jury] to think this is all one big lie for some unclear motive." He also challenges the prosecutor's exhortation not to "let him blame [Amy] for what this guy did to [Barbara]."

Prosecutors are permitted to forcefully argue the "inherent implausibility or unreliability" of a defendant's claim or theory of defense. Commonwealth v. Gerhartsreiter, 82 Mass. App. Ct. 500, 513, 514 (2012) (prosecutor properly characterized insanity defense as "the culminating manipulation in a lifetime of lies" and exhorted the jury not to "let him get away with that"). "[D]efense trial tactics are not immune from comment in a prosecutor's final argument provided the comment is based on evidence heard by the jury." Commonwealth v. Bradshaw, 385 Mass. 244, 272 (1982). Accordingly, it is not improper for a prosecutor to suggest that the defendant attempted to confuse, distract, or "fool" a jury. Commonwealth v. Shea, 401 Mass. 731, 739 (1988).

Contrary to the defendant's argument, the challenged statements neither constituted burden-shifting, nor did they unfairly criticize proper trial tactics. Contrast Commonwealth v. Grandison, 433 Mass. 135, 143 (2001) (prosecutor improperly suggested that it was "impermissible for defense counsel to question the veracity of the police officers"). Defense counsel sought to convince the jury that Amy and Barbara fabricated the allegations to gain sympathy and support from their family, and that they seemed emotional at trial because they regretted their fabrication. The prosecutor was proper in arguing that this theory was unfounded, and urging the jury to reject it. See Chavis, 415 Mass. at 713 ("prosecutor may make a fair response to an attack on the credibility of a government witness").

Judgments affirmed.

      The defendant was indicted as a subsequent offender as to four of the rape charges and four of the indecent assault and battery charges. After the defendant was convicted of the underlying offenses, the Commonwealth entered a nolle prosequi as to the subsequent offender portions of the indictments.

      A pseudonym.

      A pseudonym.

      At the time of trial, Amy was twenty-four years old and Barbara was nineteen years old.

      A judge may, of course, choose in his discretion to offer additional challenges to the parties in such a situation. See Commonwealth v. Barbosa, 457 Mass. 773, 804 n.28 (2010) (judge offered each party one additional peremptory challenge where juror was dismissed due to illness).

      The prosecutor did not introduce information about the conversation at issue during her direct examination of Barbara.

      Indeed, the defendant's opening statement suggests that he intended at the outset to elicit information about the conversation at issue, asking the jury to focus on "the people that these two sisters will say they first told about the sexual abuse, and [that] one case has flip-flopped. First it was this person, then it was that person."

      At trial, Barbara testified in detail that multiple assaults took place at that residence.

      We note as well that in describing the charged offenses, both Amy and Barbara testified multiple times, without objection, that the defendant had "molested" them.

      The prosecutor repeated the phrase twice, each time interrupted by defense counsel's objection.

      At the outset of her argument, the prosecutor indicated that she would be asking the jury to focus on three categories of evidence: "First of all, the testimony of [Barbara] and [Amy] who came into this courtroom, painful detail, unwavering testimony." Immediately after beginning this section of the argument, she remarked that Amy had testified "in excruciating detail about the abuse." The challenged statement concluded this first section of the argument, and appears to have referred back to these similar phrases.


text:
    COMMONWEALTH v. David PROULX.
    17-P-1205
    Appeals Court of Massachusetts.
    Entered: August 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, David Proulx, was convicted of the forcible rape of a child, G. L. c. 265, § 22A, by a Superior Court judge after a jury-waived trial on July 2, 1980. The defendant now appeals from the order denying his second motion for a new trial, filed thirty-seven years after his conviction. Concluding the defendant's arguments are either waived or without merit, we affirm.

1. Background. At approximately 1:00 A.M. on June 8, 1979, the fifteen year old victim was walking alone on a street in Lawrence when she encountered the defendant, with whom she was familiar. The defendant grabbed the victim and dragged her into a nearby house. He slapped the victim, pushed her into an empty room and tore off her clothes, then pulled down his pants and penetrated her vaginally as she kicked and screamed. As soon as the defendant let her go, she reported the incident to a friend and telephoned the police.

The defendant was convicted of forcible rape of a child. The trial judge imposed a fifteen-year sentence at the Massachusetts Correctional Institution at Concord, and the defendant did not appeal. The defendant was released on parole and, in December, 1982, murdered his girl friend's two year old daughter and was sentenced to life in prison, with the possibility of parole, for murder in the second degree. See Commonwealth v. Proulx, 23 Mass. App. Ct. 985, 985 (1987) ; Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 455 (2004). Almost fourteen years after his rape conviction and while incarcerated on the murder conviction, the defendant filed a motion for a new trial in the rape case on June 15, 1994. It was denied, and twenty-three years later the defendant filed a second motion for postconviction relief on July 31, 2017. A different judge likewise denied the motion, and this appeal followed.

2. Waiver. "A defendant generally may not raise any ground in a motion for a new trial that could have been, but was not, raised at trial or on direct appeal." Commonwealth v. Chase, 433 Mass. 293, 297 (2001). Such grounds are waived and may be considered only in "those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Roberts, 472 Mass. 355, 359 (2015), quoting from Commonwealth v. Watson, 409 Mass. 110, 112 (1991). Accord Commonwealth v. Watkins, 433 Mass. 539, 547-548 (2001) (defendant's failure to bring constitutional claim available on direct appeal waived argument on motion for new trial). This is not such an extraordinary case.

The defendant here could have asserted his claims of inadequate jury waiver colloquy, ineffective assistance of counsel, absence from a pretrial conference, improper witness testimony, and improper questioning by the trial judge on direct appeal from his conviction or in his first motion for a new trial, but he did not do so. The claims, therefore, are waived. See Commonwealth v. Balliro, 437 Mass. 163, 166 (2002).

Moreover, we discern no miscarriage of justice. The record suggests that the defendant likely saw no benefit to a direct appeal of his forcible child rape conviction given the nature of the case and the lenient sentence he received. It was only after he was convicted of murdering a child -- and faced the remainder of his fifteen-year sentence should he be paroled from the murder sentence -- that the defendant raised any complaint about his trial. Without any explanation and punctuated by the defendant's subsequent murder conviction, the fourteen-year and thirty-seven-year delays between his rape conviction and the motions for a new trial rebut his claims of injustice. Accord Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 552 (2002) ("The defendant's almost decade-long -- and entirely unexplained -- delay in bringing his motion was a circumstance particularly engendering disbelief" on claim defendant believed he had pleaded guilty to serve only two years despite waiting over nine years in prison to move for new trial). Accordingly, the motion judge properly denied the defendant's claim on the basis of waiver.

3. Perfunctory review. The motion judge could properly deny the motion based solely on the defendant's affidavit. See Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015) ("The primary purpose of Mass.R.Crim.P. 30 [c][3][, as appearing in 435 Mass. 1501 (2009),] is to encourage the disposition of motions for postconviction relief on the basis of affidavits alone"). Moreover, the judge was not required to credit the defendant's self-serving affidavit, see Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016), nor did the defendant's waived arguments raise a substantial issue to merit a hearing. See Vaughn, supra at 404-405. There was no error.

4. Parole eligibility. The defendant's complaints about the calculation of his parole eligibility date are not properly brought in a motion for a new trial. Such questions may be adjudicated only as a petition for writ of habeas corpus or as a declaratory judgment action against the Department of Correction (DOC) or the Parole Board, filed in a civil session with service to those parties. See Commonwealth v. Melo, 65 Mass. App. Ct. 674, 676 (2006) (defendant must "use either habeas corpus or declaratory judgment procedures to challenge the DOC's calculation of a sentence"). Accord Durham v. Massachusetts Parole Bd., 382 Mass. 494, 494-495 (1981) (prisoner challenged parole eligibility nonaggregation policy in civil suit against Parole Board); Hamm v. Commissioner of Correction, 29 Mass. App. Ct. 1011, 1011 & n.1 (1991) (prisoner challenged parole eligibility aggregation policy in civil suit against Parole Board and Commissioner). Because the defendant took no such action, and the prosecutor is not in a position to defend the actions of the Parole Board and the DOC, the defendant is not entitled to relief in this forum. Accord Melo, supra at 677 (reversing allowance of motion to correct sentence where defendant "should have sought a declaratory judgment to challenge the DOC's calculation of his sentence").

Order dated August 3, 2017, affirmed.


text:
    COMMONWEALTH v. Vannara OUK.
    17-P-540
    Appeals Court of Massachusetts.
    Entered: August 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant of rape of a child and indecent assault and battery on a child under the age of fourteen. On appeal the defendant argues that he was deprived of a fair trial because of misconduct committed by the prosecutor in her opening statement, direct examination of certain witnesses, and closing argument. We affirm.

1. Opening statement. The defendant challenges the prosecutor's opening statement on two grounds: that she engaged in argument that appealed to the jury's sympathy, and that she misstated the evidence. Because the defendant did not object, we review any errors in the prosecutor's remarks only to determine whether they resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Sylvia, 456 Mass. 182, 188 (2010).

"The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence." Commonwealth v. Croken, 432 Mass. 266, 268 (2000), quoting from Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). "It is not an opportunity for argument." Croken, 432 Mass. at 268. In this case we agree with the defendant that the prosecutor's opening lapsed into argument. The prosecutor began her remarks by using emotionally provocative language to describe how the defendant made the victims feel unsafe in their own home. This was improper. See Commonwealth v. Silva, 455 Mass. 503, 514-515 (2009). She then went on to state that the defendant "[got] away with this crime for many years, until today ... no more" and concluded by commenting that the victims would be testifying in front of "perfect strangers in this strange courtroom" about "memories that they have attempted to forget and to bury." This was also improper. See Commonwealth v. Martinez, 476 Mass. 186, 197-198 (2017) ; Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 10 (2000).

Despite these missteps, however, we conclude that the opening statement did not result in a substantial risk of a miscarriage of justice. "[A] claim of improper [opening statement] by the prosecutor must be judged in light of the entire [statement], the judge's instructions to the jury, and the evidence actually introduced at trial." Commonwealth v. Jones, 439 Mass. 249, 260-261 (2003), quoting from Commonwealth v. Thomas, 429 Mass. 146, 158 (1999). Here, the judge instructed the jury four times -- in his preliminary charge, immediately following the prosecutor's opening statement, before summations, and in his final charge -- that opening statements and closing arguments are not evidence. We presume that the jury followed these instructions, which mitigated the effect of the prosecutor's improper argument. See Thomas, 429 Mass. at 158 ; Martinez, 476 Mass. at 198 ; Riberio, 49 Mass. App. Ct. at 10. Indeed, though the defendant was charged with aggravated rape of Bridget, the jury convicted the defendant of the lesser included offense of indecent assault and battery on a child under fourteen, "demonstrat[ing] their lack of prejudice in weighing the evidence." Commonwealth v. Munafo, 45 Mass. App. Ct. 597, 603 (1998). See Commonwealth v. Grandison, 433 Mass. 135, 143 (2001).

We turn to the defendant's second argument, which is that the prosecutor misstated the evidence by suggesting -- through the use of words such as "constantly," "any chance," and "every time" -- that more incidents of sexual abuse occurred than what the evidence showed. A prosecutor may "state in her opening statement anything she reasonably, and in good faith, expected to prove." Commonwealth v. Qualls, 440 Mass. 576, 586 (2003). "Absent a showing of bad faith or prejudice ... the fact that certain evidence fails to materialize is not a ground for reversal." Ibid. The defendant here has made no showing of bad faith or prejudice. As the prosecutor stated at a sidebar conference, she anticipated that Mary would testify to additional attempts by the defendant to touch her, but was having trouble eliciting the testimony. And Mary did eventually testify that she had told the prosecutor during an interview that the defendant would try to touch her "[e]very chance he could get." Similarly, Bridget testified that she had told the prosecutor that the defendant tried to touch her "every time" he came to the house. While the witnesses' language was plainly hyperbolic, the record establishes that the prosecutor reasonably expected the evidence to support her opening remarks. Any prejudice, moreover, was mitigated by the judge's repeated instructions that opening statements are not evidence. See Sylvia, 456 Mass. at 188-189.

2. Direct examination. The defendant next contends that the prosecutor neglected to lay a foundation for certain questions and asked leading questions during her direct examination of the victims and their brother. He claims that these questions prejudiced him because they implied that he assaulted the victims as part of an ongoing pattern of conduct. We agree with the Commonwealth's characterization, however, that the prosecutor's questioning -- while more suggestive than what is common on direct examination -- was an inartful but good faith attempt to elicit admissible testimony. Her questions did not "imply the truth of a proposition which [she] knew to be false," Commonwealth v. Fitzgerald, 376 Mass. 402, 415 (1978), nor did they serve to put forth the Commonwealth's "version of the events without competent evidence." Commonwealth v. Stewart, 454 Mass. 527, 532 (2009). To the extent that any prejudice resulted from the questions, it was neutralized by the judge's instructions in his preliminary and final charge that questions asked by the attorneys are not evidence. See Commonwealth v. Allen, 379 Mass. 564, 583-584 (1980).

3. Closing argument. The defendant challenges the prosecutor's closing argument on several grounds. He first argues that the prosecutor appealed to the jury's sympathy when she began her summation with a "dramatization" of how Mary reacted when she found out that the defendant was also abusing Bridget. Because the defendant objected, we review for prejudicial error. See Commonwealth v. Cole, 473 Mass. 317, 333 (2015). We discern none. Although the prosecutor's statements were vivid and dramatic, they "were grounded on the evidence and were within the range of rhetoric and 'excusable hyperbole' available to either side in closing argument." Commonwealth v. Odware, 429 Mass. 231, 239 (1999), quoting from Commonwealth v. Sanna, 424 Mass. 92, 107 (1997). For the same reason, we conclude that no substantial risk of a miscarriage of justice resulted from the prosecutor's unobjected-to references to the victims as "two smart beautiful" girls who were testifying about something "painful."

Finally, we reject the defendant's contention, raised for the first time on appeal, that the prosecutor vouched for the credibility of the victims and their brother and engaged in improper burden-shifting. No vouching occurred because the prosecutor did not "express[ ] a personal belief in the credibility of a witness, or indicate[ ] that ... she ha[d] knowledge independent of the evidence before the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Instead, the prosecutor argued from the evidence why the witnesses should be believed. This constituted neither vouching nor burden-shifting, but was instead a proper response to defense counsel's closing, in which he forcefully argued that the victims fabricated the allegations. See Commonwealth v. Polk, 462 Mass. 23, 39-40 (2012).

Judgments affirmed.

      The victims of the offenses are sisters, whom we shall refer to as Mary and Bridget. Both names are pseudonyms.

      While acknowledging that the transcript reflects no objection, the defendant claims that his counsel "appears to have objected." In support of this proposition, he points to the judge's immediate instruction after the prosecutor's opening that "[the opening] wasn't evidence" and defense counsel's comment at sentencing that "[he] objected" to the prosecutor's "opening and closing." The transcript, however, does not reflect a sidebar conference or any inaudible statements before the judge gave the instruction, and the prosecutor did not accede to defense counsel's representation that he objected. If the defendant believed that there was an error in the transcription, it was his burden to move to reconstruct the record. See Commonwealth v. Woods, 419 Mass. 366, 371 (1995). In these circumstances we conclude that no objection was preserved.

      For example, the prosecutor stated that the victims' "home should have been a refuge" but, after the defendant assaulted Mary, "her home was no longer a home that she deserved."

      The defendant also challenges the prosecutor's statement that the victims' brother saw the defendant sitting by Bridget's bed "in the middle of the night at times." This statement was borne out by the brother's testimony that "[m]ore than once" he woke up and saw the defendant in the room that the brother shared with Bridget.

      With regard to some of these questions, the parties disagree as to whether our review is for prejudicial error or a substantial risk of a miscarriage of justice. We need not resolve this conflict, as under either standard our conclusion is the same.