Commonwealth v. Albert Tremblay. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-349
COMMONWEALTH
vs.
ALBERT TREMBLAY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On January 31, 2020, the defendant, Albert Tremblay, was
convicted by a Superior Court jury of three counts of child rape
and three counts of indecent assault and battery on a child
under fourteen. On appeal, the defendant argues that the
prosecutor made multiple statements during closing argument that
were improper and prejudicial, and thus require reversal of the
convictions. We affirm.
Background. We summarize the evidence presented at trial,
reserving certain details for later discussion.
The victim testified that when she was between the ages of
seven and thirteen years old, the defendant, who was her uncle,
repeatedly sexually abused her.1 During this time, the defendant
lived with his mother, the victim's grandmother, in Attleboro.
According to the victim, it was during her visits to her
grandmother's house that the defendant would abuse her.
Beginning when the victim was seven or eight years old, the
defendant began to grope the victim's genital area and force her
to touch his genital area. The abuse escalated over time to
include the defendant forcibly penetrating the victim's vagina
and mouth with his penis.
One day in June 2004, the victim's parents dropped her off
at her grandmother's house while they went on a trip to New
Hampshire. That evening, the victim was playing video games
with the defendant in the defendant's room. At one point, the
defendant began to sexually abuse her. The victim decided she
"wasn't going to take it anymore." She got a knife from the
kitchen and sat with it all night. In the morning, the
defendant followed the victim down the driveway as she left to
go to school. The victim showed him the knife and told him to
stay away from her. On June 23, 2004, the victim, thirteen
years old at that time, disclosed in an interview with the
police that she had been "molested" by a relative at her
1 The victim was twenty-nine years old when she testified at
trial.
2
grandmother's house. The victim did not identify the defendant
as her abuser to the police out of concern that the disclosure
would cause much distress to her grandmother. In 2014, the
victim identified the defendant as the person who abused her.
The defendant did not present a defense after the
Commonwealth rested its case.
Discussion. The defendant argues that the Commonwealth
committed several errors in its closing argument by (1) arguing
the victim had no motive to lie after successfully excluding the
evidence of motive, (2) arguing facts and inferences either
contrary to, or unsupported by, the evidence, and (3) shifting
the burden of proof to the defendant. The defendant preserved
his arguments through timely objections. We therefore review
his claims for prejudicial error. Commonwealth v. Cruz, 445
Mass. 589, 591 (2005). "An error is not prejudicial if it 'did
not influence the jury, or had but very slight effect'; however,
if we cannot find 'with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error,'
then it is prejudicial" (citation omitted). Id.When evaluating a claim of error in a prosecutor's closing
argument, we must consider "(1) whether the defendant seasonably
objected; (2) whether the error was limited to collateral issues
3
or went to the heart of the case; (3) what specific or general
instructions the judge gave the jury which may have mitigated
the mistake; and (4) whether the error, in the circumstances,
possibly made a difference in the jury's conclusions."
Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). "Once a
properly raised objection to a prosecutor's argument is found to
be valid, the entire record, including the balance of the
prosecutor's argument, becomes relevant in determining whether
the error was prejudicial to the point of requiring a reversal
of the conviction." Commonwealth v. Kozec, 399 Mass. 514, 523
(1987). "We consider the cumulative effects of all the errors
in the context of the entire arguments and the case as a whole."
Commonwealth v. Wilson, 427 Mass. 336, 351 (1998).
1. Victim's motive to lie. The defendant contends that
the Commonwealth erred by arguing that the victim had no motive
to lie after successfully excluding evidence of her motive.
Prior to trial, the Commonwealth moved to exclude from evidence
several statements made by the defendant to a detective. These
statements included the defendant's claim that his sister, the
victim's mother, had stated, "If you spend any more of mom's
money, I'll kill you." The judge also sustained the
Commonwealth's objection to the defendant's attempt to elicit
4
statements made by the defendant and victim's mother to the
detective.
The defendant argues that this statement constituted
evidence of the victim's motive to lie, because it showed a
conflict between the victim's mother and the defendant over the
use of the grandmother's money. Because the Commonwealth
successfully moved to exclude this evidence, the defendant
argues, it was improper for the Commonwealth to then argue in
closing that there was no evidence that the victim had a motive
to lie.
Notably, the Commonwealth did not seek to exclude
admissible evidence regarding the possible financial motive to
lie. Rather, the Commonwealth's pretrial motion and the
prosecutor's objection at trial explicitly sought to exclude a
statement allegedly made by the victim's mother to the
defendant, as relayed by the defendant to the detective, as
inadmissible hearsay evidence. This line of questioning was
therefore properly restricted by the judge. See Commonwealth v.
Markvart, 437 Mass. 331, 335 (2002) ("hearsay not otherwise
admissible under the rules of evidence is inadmissible at the
trial . . . unless specifically made admissible by statute);
Mass. G. Evid. § 802 (2024) (same).
5
However, the defendant argues that because the Commonwealth
successfully excluded evidence regarding the victim's possible
motive to lie, it was impermissible for the Commonwealth to then
rely on that lack of evidence during its closing argument. See
Commonwealth v. Harris, 443 Mass. 714, 732 (2005) ("Counsel may
not, in closing, 'exploit[] the absence of evidence that had
been excluded at his request'"). We disagree that any such
exploitation occurred. The Commonwealth did not argue (knowing
it to be untrue) that the defendant had not suggested any motive
for the victim to lie. Instead, the Commonwealth argued that a
separate motive the defendant did argue to the jury was
implausible.2 As noted above, even if the judge had allowed the
Commonwealth's motion to exclude the defendant's statements
regarding the financial dispute between him and the victim's
mother, the defendant could have pursued this theory by calling
the witness to testify at trial, thus avoiding the hearsay
2 The prosecutor's objected-to statements included the
following:
"And this is a good place to talk about [the victim's]
motive. What motive is there to lie? If these allegations
aren't true, then what on earth could be her motivation for
making up these disgusting facts?
"Well, the defense told you what her motive was, right, in
his opening statement, that [the victim] wanted to go on a
fun vacation to New Hampshire. You remember that, right?
I mean really?"
6
objection. Instead, defense counsel notified the judge of his
decision not to call the victim's mother to testify. There is
no indication this decision represented anything other than a
strategic choice, and there was no suggestion the mother was
either unwilling or unavailable to testify. The defendant also
refrained from questioning the victim about any financial
dispute between her mother and the defendant.
The Commonwealth is permitted to argue that a witness has
no motive to lie where the defendant has attacked the witness's
credibility. Commonwealth v. Shanley, 455 Mass. 752, 777
(2010). This was the case here, where defense counsel, in his
opening statement, ascribed the victim's motive to lie as being
upset she had to stay at her grandmother's house while her
parents vacationed in New Hampshire. Counsel then argued the
victim was not a credible witness in his closing argument. The
prosecutor's responsive argument concerning the victim's lack of
motive was grounded in the evidence admitted at trial, and
represented a fair response to the closing argument made by the
defendant's counsel. See Commonwealth v. Benoit, 452 Mass. 212,
229 (2008).
2. Reference to struck testimony. The Commonwealth called
the defendant's cousin to recount her observations of the victim
on one occasion when the victim was visiting her grandmother's
7
house. The cousin testified that while she was studying the
bible with the victim's grandmother, she saw the victim exit the
defendant's bedroom and pass by her to go to the bathroom. When
she exited the bathroom, the victim again walked past the
cousin. The cousin testified that the victim did not respond to
her greetings and also failed to make eye contact with her. The
cousin described the victim as appearing distracted and
"detached." This behavior was unusual to the cousin when
compared to her previous interactions with the victim. When the
cousin testified she left the grandmother's house soon
thereafter because she felt "uncomfortable," the defendant
objected to this characterization. The judge sustained the
defendant's objection, and struck the cousin's response that she
was "uncomfortable."
In her closing, the prosecutor referenced the cousin's
testimony, arguing that "there was something about that
interaction that made her decide to end her bible study early."
On appeal, the defendant argues that the Commonwealth
impermissibly referenced evidence that was struck from the
record. However, the Commonwealth did not reference the portion
of the cousin's testimony that was struck, which was her
"discomfort" after witnessing the victim's behavior. Rather, we
construe the argument as asking the jury to make a reasonable
8
inference that the cousin decided to leave the house early
because of the unusual manner in which the victim had presented.
This line of argument did not constitute error. See
Commonwealth v. Samia, 492 Mass. 135, 156 (2023) ("counsel may
argue the evidence and the fair inferences which can be drawn
from the evidence" [citation omitted]).
Even if the prosecutor's remark had been predicated on the
struck testimony, no prejudice resulted from the error
considering the judge's instructions to the jury. Notably, the
judge instructed the jury before opening statements, before
closing arguments, and after closing arguments that closing
arguments are not evidence. The judge also instructed the jury
multiple times that the jury's function is to determine the
facts of the case, a role that includes assessing credibility,
resolving any discrepancies in the evidence, and drawing
reasonable inferences from facts proven to them. Considering
the judge's thorough instructions as to the jury's role, we
conclude they were not meaningfully influenced by any attempt on
the prosecutor's part to reference the cousin's struck testimony
about her discomfort.
3. Burden shifting. The defendant claims that the
following statements made by the prosecutor misstated the
9
standard of proof and shifted the burden of proof onto the
defendant:
"[I]t's your job . . . to determine what evidence you think
is credible, throw out what you don't find credible, and
see what you have left, and ask yourself, is there any
reasonable explanation for the evidence you've heard other
than guilt.
"[W]hen you take this evidence as a whole, it points
clearly to guilt. There's no other reasonable explanation
for all of the evidence that you've heard, except that [the
defendant] is guilty."
We are not persuaded. Determining the credibility of the
evidence is solely within the jury's province. Commonwealth v.
Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and
460 Mass. 12 (2011). It was proper for the prosecutor to ask
the jury to evaluate the evidence as a whole before basing their
verdict on credible evidence, especially when considering the
defendant asked the jury to dismiss the Commonwealth's evidence
as unbelievable. See Commonwealth v. Platt, 440 Mass. 396, 401
(2003) ("If the evidence lends itself to several conflicting
interpretations, it is the province of the jury to resolve the
discrepancy and 'determine where the truth lies'" [citation
omitted]). Moreover, we are confident the jury understood their
role in determining what evidence was credible. As mentioned,
the judge advised the jury of their role as fact finder numerous
times.
10
The defendant also argues that the Commonwealth improperly
shifted the burden of proof onto him because it suggested to the
jury that he had some burden of offering a "reasonable
explanation" for the evidence aside from his guilt. We
disagree.
A closing argument "must be viewed 'in the context of the
entire argument, and in light of the judge's instruction to the
jury, and the evidence at trial'" (citation omitted).
Commonwealth v. Barbosa, 477 Mass. 658, 670 (2017). "[A]
prosecutor may properly 'emphasize the strong points of the
Commonwealth's case and the weaknesses of the defendant's case,'
even if he or she may thereby 'prompt some collateral or passing
reflection' on the fact that the defendant has not produced
certain evidence" (citation omitted). Commonwealth v. Grier,
490 Mass. 455, 473 (2022). Here the prosecutor's contested
statements, by their explicit terms and taken in the context of
the entire closing argument, permissibly conveyed the point that
the weight of the credible evidence pointed toward guilt, not
that the defendant had to prove his innocence. Cf. id. at 472-
473 (prosecutor's statement that "[t]here isn't a shred of
evidence" as to defendant's third-party culprit defense was
permissible comment as to strength of Commonwealth's case and
weakness of defendant's).
11
Even if we were to assume arguendo that the prosecutor's
comments crossed the line by shifting the burden to the
defendant, any such error was cured by the judge's instructions.
In his final instructions to the jury, the judge stated three
times that the burden of proof is always on the Commonwealth.
The judge instructed the jury to that effect in his opening
charge as well. The judge also instructed the jury multiple
times that the defendant is presumed innocent and therefore does
not need to prove his innocence. Finally, the judge repeatedly
instructed the jury that it was the Commonwealth's burden to
prove the defendant's guilt beyond a reasonable doubt. We
presume the jury followed the judge's instructions. See
Commonwealth v. Williams, 450 Mass. 645, 651 (2008).
4. Misstatements concerning defendant's interview. During
the initial police investigation into the victim's allegations
of sexual abuse, a detective interviewed the defendant. At
trial, the detective testified that when he confronted the
defendant with an allegation that the victim was "molested" by a
relative who lived with her, the defendant responded that he was
not the only man who lived at the grandmother's house. The
defendant then identified the victim's brother as residing in
the grandmother's home as well. Although the defendant also
expressly denied having committed any sexual abuse against the
12
victim during this interview, the defendant's denial was not
introduced in evidence during the trial.
The victim's brother testified at trial that he lived at
the grandmother's house in 2004 during the time period when the
police investigation happened. However, the brother denied
being at the grandmother's house on any occasion when the victim
slept over. In addition, the victim testified that while her
brother sometimes lived at their grandmother's house, he was
never present when the victim was abused.
In her closing argument, the prosecutor argued to the jury
that the defendant had lied to the police when he told the
officer that the victim's brother also lived at the
grandmother's house, in order to shift suspicion onto the
brother. The prosecutor also stated that the defendant had not
denied his guilt when interviewed by the police officer. The
judge sustained the defendant's contemporaneous objections to
these statements.
On appeal, the defendant argues that the Commonwealth's
arguments constituted error and prejudiced the defendant by
conveying to the jury that the defendant had lied about the
victim's brother living with the grandmother, and further, by
incorrectly stating that the defendant had not denied having
sexually abused the victim.
13
Although we agree that the Commonwealth committed error by
misstating the evidence on both accounts, these misstatements
were not of the degree to influence the jury when viewed in
light of the evidence that the brother did in fact live at the
grandmother's house, the weight of the evidence against the
defendant, and the judge's instructions. See Commonwealth v.
Imbert, 479 Mass. 575, 587 (2018) (no prejudice when error was
mitigated by judge's instructions and evidence weighed in favor
of conviction). First, the jury heard the victim and her
brother testify that he lived at the grandmother's house during
the time she was abused. However, the victim unequivocally
identified the defendant, not her brother, as the individual who
forced her to engage in vaginal and oral intercourse on multiple
occasions over a span of about five years.
Furthermore, the judge mitigated the prejudice from the
prosecutor's inaccurate statements by sustaining the defendant's
contemporaneous objection to the statements and by instructing
the jury multiple times that closing arguments are not evidence.
As referenced above, the judge also clearly instructed the jury
that it was their function to determine the facts.3 "We presume,
3 In his final charge, the judge instructed the jury that
"[y]ou are the sole and exclusive judges of the facts. You
alone determine what evidence to accept, how important any
evidence is that you do accept, and what conclusions to draw
from all the evidence."
14
as we must, that the jury follow the judge's instructions and
understand the argumentative, not factual, nature of closing
arguments." Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237
(2013).
The judge also provided an adequate remedy for the
prosecutor's error in suggesting that the defendant had not
denied his guilt to the police. At sidebar immediately
following the judge's final instructions, and in response to the
defendant's objection, the Commonwealth proposed a stipulation
to correct its error. The defendant agreed that at a minimum
the jury should be informed of the stipulation but argued that a
mistrial was proper given the potentially prejudicial effect of
the statement. Before the judge excused the jury to consider
their verdict, the judge instructed them to the following:
"Ladies and gentlemen, if you remember during the
instructions, I mentioned about stipulations, how you can -
- how to treat those as evidence that the parties have
agreed to. And you'd probably say, well, we didn't have a
stipulation. Well, we have a stipulation. Okay? And this
will be reduced to writing and sent to you. You're not to
hold it against either party or speculate why it's coming
in now. It's coming in now as evidence. All right? And
this is evidence that you can consider.
"And the stipulation is that the parties stipulate to the
following: That the defendant, Albert Tremblay, denied
ever touching [the victim] during his 2004 police
interview. All right? And that's going to be reduced to
writing. You'll have that with you along with the other
exhibits."
15
This instruction and stipulation prevented the prosecutor's
misstatement from influencing the jury. The jury did not have
to decide whether the defendant denied touching the victim
during the police interview because they were instructed it was
agreed-on evidence that the defendant had done so. Considering
the judge's instructions as well as the entire trial record, we
conclude the prosecutor's two errors did not influence the jury.
See Kater, 432 Mass. at 424 ("curative instruction specifically
and appropriately eliminated any prejudice that might have been
caused by the prosecutor's comment"). Contrast Commonwealth v.
Niemic, 483 Mass. 571, 596-597 (2019) (new trial warranted where
judge's general and curative instructions could not mitigate
prosecutor's numerous improper arguments including misstating
evidence, arguing impermissible personal opinion, arguing
rebuttal testimony as substantive evidence, and playing to jury
sympathy).
On appeal, the defendant also argues that this remedy was
improper and constituted structural error because the
stipulation was given after the close of all evidence and after
closing arguments. We disagree.
A structural error in trial is one that affects "certain
basic, constitutional guarantees that should define the
framework of any criminal trial." Weaver v. Massachusetts, 582
16
U.S. 286, 295 (2017). On the contrary, as the Commonwealth
argues, the judge in this case reopened the evidence before jury
deliberations in order to protect the defendant and ensure that
the prosecutor's misstatement of the evidence during closing
argument would not prejudice the defendant. As such, this is
not a question of structural error, but one of abuse of
discretion by the trial judge. See Jones v. Vappi & Co., 28
Mass. App. Ct. 77, 82 (1989) ("Whether to admit additional
evidence after a party has rested lies within the sound
discretion of the trial judge"). While stipulations "shall be
placed on the record before the close of evidence," Mass. R.
Crim. P. 23 (b), 471 Mass. 1501 (2015), it is nevertheless
within the trial judge's discretion to reopen the evidence.
Commonwealth v. Agiasottelis, 336 Mass. 12, 15 (1957), and cases
cited. Though the stipulation in this case was entered after
both closing arguments, such a distinction is of little
consequence, especially where the need for the stipulation did
not arise before the closings and the jury had not been yet
dismissed for deliberations. See Commonwealth v. Ortiz, 466
Mass. 475, 484 (2013) ("we cannot identify any prejudice to the
defendant arising from the fact that the stipulation itself was
explained to the jury during the judge's final instructions and
not placed before them during the evidence phase of the trial").
17
The judge did not abuse his discretion in providing the
stipulation to the jury after the close of evidence. Instead,
the judge properly exercised his discretion to correct an error
while also protecting the defendant's right to receive a fair
trial.
Judgments affirmed.
By the Court (Milkey, Sacks &
Smyth, JJ.4),
Clerk
Entered: August 23, 2024.
4 The panelists are listed in order of seniority.
18