Commonwealth v. Martinez , 476 Mass. 186 ( 2017 )

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SJC-11657
COMMONWEALTH vs. RAFAEL MARTINEZ.
Essex. September 9, 2016. - January 5, 2017.
Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ.
Homicide. Evidence, Videotape, Relevancy and materiality,
Inflammatory evidence, Consciousness of guilt. Practice,
Criminal, Capital case, Redaction, Voir dire, Opening
statement, Argument by prosecutor.
Indictment found and returned in the Superior Court
Department on June 29, 2011.
The case was tried before Timothy Q. Feeley, J.
Amy M. Belger for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. The victim, Timothy Walker, was shot while
seated and talking with two friends on the porch of his
grandmother's house in the Tower Hill section of Lawrence.
Despite two eyewitnesses, and surveillance video recordings of
the incident obtained from nearby businesses, police were unable
2
to identify a suspect. Nine months after the victim's death, a
local television station featured the shooting in an "unsolved
crime" series news broadcast that included portions of the
surveillance footage showing the suspect, whose face was not
discernable. The defendant watched the news broadcast with his
girl friend's mother and told her that he had been the shooter.
At the defendant's trial, the Superior Court judge allowed the
admission in evidence, over the defendant's objection, of a
redacted version of the news broadcast. The jury convicted the
defendant of murder in the first degree on a theory of
deliberate premeditation.
On appeal, the defendant's principal argument is that the
news broadcast should not have been admitted in evidence, or,
alternatively, that it should have been more heavily redacted,
because much of it was irrelevant, inflammatory, and highly
prejudicial. The defendant also claims error in certain aspects
of the judge's conduct of the voir dire of the venire and two of
the judge's evidentiary rulings. Finally, the defendant
contends that several statements in the prosecutor's opening
statement and closing argument were improper.
We conclude that there was no abuse of discretion in the
judge's decision to allow admission of the news broadcast, and
no error requiring reversal in the defendant's other challenges.
Having carefully examined the record pursuant to our duty under
3
G. L. c. 278, § 33E, we discern no reason to order a new trial
or to reduce the degree of guilt. We therefore affirm the
defendant's conviction.
1. Facts. We recite the facts the jury could have found,
reserving other facts for our discussion of specific issues. On
July 24, 2010, while the victim was sitting on the porch of his
grandmother's house with his cousin and a friend, a man
approached the porch, shot the victim in the head with a
shotgun, and then fled back the way he had come, shooting as he
ran.1 The shooter was wearing a dark baseball cap pulled low
over his face, and neither eyewitness was able to identify him,
although each gave a similar description of his height, build,
complexion, and clothing. The victim died of his injuries
several days later. In the months following the shooting,
police were unable to identify a suspect.
The shooter's movements immediately before and after the
shooting were captured by four security cameras located at
nearby business establishments. The edited footage constituted
an approximately four and one-half minute video recording, which
was admitted and played for the jury. This video recording
showed an automobile arrive in the vicinity of the crime and
stop for several minutes. During that time, the shooter got out
1
As the gunman approached the victim, he said, "Here, this
is for you, nigger."
4
of the passenger's side of the vehicle, approached the victim,
fired a weapon, ran back toward the vehicle, and entered the
passenger's side, upon which the vehicle was driven away.
In the spring of 2011, the defendant was dating Tesseana
Wilson and stayed frequently at the home of her mother, Michelle
Wilson,2 up to five nights per week.3 Approximately nine months
after the shooting, on the evening of May 2, 2011, sometime
between 11 and 11:30 P.M., the defendant walked into the living
room where Michelle was watching television and asked her to
change the station to a particular channel. She did so. The
station was airing the first broadcast of a new unsolved crime
series; the program that evening was titled, "Who Killed Timothy
Walker?" Michelle recognized the name "Timothy Walker" as a
"distant cousin" of her children, whom she knew had been shot
the previous summer.
The defendant watched the broadcast with Michelle. While
they were watching, she looked at the defendant and said,
"That's you" or "Is it you?," while he said, "I killed him."
The defendant thereafter described his actions, narrating events
as they were shown on the surveillance footage. When Michelle
2
Because Tesseana Wilson and her mother, Michelle Wilson,
share a last name, we refer to them by their first names.
3
The defendant was living at the home of Dolores Regan.
Delores was the mother of the defendant's friend, Max Regan,
with whom he had attended high school and played football. To
avoid confusion, we refer to them as "Delores" and "Max."
5
asked him why he was shooting as he ran from the scene, the
defendant said that he had been concerned that he would be shot
at or pursued. At another point in the broadcast, when the
victim's mother described being told of her son's death, the
defendant said that she was incorrect in stating that the bullet
had passed through the victim's head, because he had used a
hollow-point bullet. The defendant also described the actions
of the getaway vehicle's driver, and his own efforts to conceal
evidence of the crime.
Michelle told the defendant to tell Tesseana and then to
leave her house. The defendant spoke with Tesseana privately,
telling her that he had been the shooter, and Michelle then
drove him to a house in Lawrence where he had requested to be
taken. Shortly thereafter, in the early morning hours of May 3,
2011, Tesseana watched a rebroadcast of the news program and
recognized the shooter's walk and build as the defendant's.
Later that day, Michelle contacted police and told them of the
defendant's confession. Police also spoke with Tesseana, who
initially denied recognizing the shooter on the news broadcast.
She later said that she had recognized the defendant, but did
not want to believe it was him, and described her conversation
with the defendant.
Four days after the news broadcast aired, on Friday, May 6,
2011, police went to Dolores's house; Max was home and spoke
6
briefly with them. Later that day, Max gave the defendant a
ride home and noticed that the defendant was holding a pair of
sneakers. When they arrived at the house, the defendant asked
Dolores for a plastic bag, which she gave him. Max later drove
the defendant to a bridal shower; en route, Max asked the
defendant why the police had been at the house looking for him.
The defendant explained that a friend of his from Lawrence had
shot a gun into the air and then had dropped it, and that the
defendant had picked it up; he said that the police probably
wanted to ask why his fingerprints were on the gun.
The next day, Saturday, when taking out the trash, Dolores
noticed the bag containing the sneakers in an otherwise empty
trash can. On Sunday, she contacted police and gave them the
sneakers. Max also identified them as those the defendant had
with him while in Max's vehicle on May 6.
2. Discussion. The defendant challenges the introduction
of the redacted recording of the news broadcast, the judge's
decision not to conduct a voir dire of the venire concerning the
news broadcast, the judge's evidentiary rulings with respect to
Max's testimony, and several of the prosecutor's remarks in his
opening statement and closing argument. We address each
argument in turn.
a. The news broadcast. The defendant argues that the
audio-video recording of the news broadcast should not have been
7
admitted in its redacted form; he contends that it should have
been excluded, or more heavily redacted, on the ground that much
of the content was irrelevant, highly inflammatory, and unduly
prejudicial. Because the defendant objected to the introduction
of the recording, we review to determine whether any abuse of
discretion resulted in prejudicial error. See Commonwealth v.
Rosa, 468 Mass. 231, 239-242 (2014).
A judge has broad discretion in making evidentiary rulings.
Commonwealth v. Bell, 473 Mass. 131, 142 (2015), cert. denied,
136 S. Ct. 2467 (2016). In determining whether the judge erred
in allowing introduction of the redacted recording,4 we consider
whether the judge took "care to avoid exposing the jury
unnecessarily to . . . material that might inflame [their]
emotions and possibly deprive the defendant of an impartial
jury." Commonwealth v. Berry, 420 Mass. 95, 109 (1995). This
analysis requires us to review the redactions themselves, the
limiting instructions, and the probative value of the news
broadcast in light of its likely prejudicial effect. Bell,
supra at 142-143.
We conclude that there was no abuse of discretion in
allowing the introduction of the redacted recording, given its
4
"The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence." Mass. G. Evid. § 403 (2016).
8
significant probative value, the redactions made, and the
judge's instructions before the recording was played for the
jury and during his final charge.
i. Redactions. The four-minute and twenty-second news
broadcast, asking for the public's assistance in locating a
killer, was narrated by a station news reporter. It contains
his introductory and closing comments, the surveillance video
footage of the shooter approaching and running from the scene of
the shooting, statements made during an interview by the
district attorney, statements from the victim's mother, and
photographs of the victim and his belongings.
The judge conducted several hearings during the first two
days of trial on the Commonwealth's motion in limine to
introduce the recording. After having viewed the recording
several times, the judge provided the parties with a document
dividing the news broadcast into twenty-one segments, setting
forth his ruling as to each. He ordered audio redaction in a
number of segments, and, in one section, both audio and video
redactions. The audio portion was muted approximately fifteen
times, for a total of two minutes and five seconds
(approximately forty-eight per cent of the recording) to prevent
the jury from hearing statements by the district attorney, some
of the narrator's comments concerning the victim and the crime,
and certain comments by the victim's mother. A ten-second
9
portion of the video recording was dark, and the audio was
muted, to exclude a photograph of the victim's mother holding
her son's hand in the hospital.
The redacted recording of the news broadcast was played for
the jury during Michelle's testimony, immediately before she
testified about the defendant's confession. Before the
recording was played, the judge gave a limiting instruction on
the reasons for which the jury could consider the recording, the
nature of the redactions (both audio and visual), and the
reasons for the redactions (so that the recording the jury would
"hear and see is admissible under our rules of evidence").
ii. Probative value. The defendant argued in his
opposition to the Commonwealth's motion in limine to introduce
the audio-video recording of the news broadcast that the
recording included statements by police officers, "commentary"
from the district attorney, and "heartfelt" pleas from the
victim's family that "this crime must be solved," all of which
would be unduly prejudicial and highly "inflammatory." He also
argued that the witnesses would be able to provide relevant
context through their testimony, rendering the news broadcast
unnecessary. In addition, counsel argued that the quality of
the announcer's voice was itself inflammatory.5
5
The defendant argued at the hearing that the announcer has
a "voice like Gregory Peck, like the voice of God, on that
10
To be admissible, evidence must be both relevant and
probative. See Commonwealth v. Carey, 463 Mass. 378, 386–390
(2012). While the audio-video recording of the news broadcast,
as redacted, well may have tended to arouse an emotional
response from the jury, that is not the extent of the question.
Even where relevant, evidence is not admissible if "its
probative value is substantially outweighed by the danger of
unfair prejudice" to the defendant. Id. at 387-388, quoting
Mass. G. Evid. § 403 (2012). The Commonwealth, however, is
"'entitled to present as full a picture as possible of the
events surrounding the incident itself,' as long as the
probative value of the evidence presented is not substantially
outweighed by any prejudice to the defendant" (quotations
omitted). Commonwealth v. Hernandez, 473 Mass. 379, 394 (2015).
See Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007).
Here, the judge concluded that the audio-video recording
was relevant and probative to support Michelle's testimony about
the defendant's statements admitting to having been the shooter.
Shortly before the broadcast aired, the defendant asked Michelle
to turn to the channel on which it would air. The defendant
confessed to the shooting while he and Michelle watched the news
broadcast. During the broadcast, the defendant provided a
screen which is like being at a drive-in movie, it's just going
to be so prejudicial and so inflammatory beyond belief."
11
detailed narrative of the events unfolding on the surveillance
video footage, described his actions after the surveillance
footage ended, and responded to Michelle's questions about his
reasons for having undertaken some of the actions depicted. He
then referenced the news broadcast in his confession to
Tesseana. Within a few hours, she saw a rebroadcast of the news
program and recognized the shooter's walk and build as the
defendant's. This evidence was central to a case in which there
was no physical evidence connecting the defendant to the
shooting and no apparent motive, and the defendant's confessions
to Michelle and Tesseana were at the heart of the Commonwealth's
case.6 Given this, we discern no abuse of discretion in the
judge's conclusion that the redacted recording of the news
broadcast was relevant and probative.
iii. Prejudicial effect. We turn to consider whether the
judge erred in concluding that the probative value of the news
broadcast was not substantially outweighed by its prejudicial
effect. "Relevant evidence is not rendered inadmissible by its
6
At the hearing on the motion in limine, the judge observed
that "[the news broadcast] really is kind of integral to the
development of the Commonwealth's case. You know, this has the
unique set of circumstances [in] that while this was being
televised live . . . the defendant is in a room with another
person; and there is a conversation about this broadcast that
includes, allegedly includes, admissions. . . . It's not just
throwing the broadcast up there. It's throwing it up there in
the context of an important conversation that occurred as a
result of and during the course of the broadcast."
12
potential to arouse feelings of sympathy in a jury. The
evidence remains admissible if its probative value outweighs its
potential for sympathy." Commonwealth v. Mendes, 441 Mass. 459,
467 (2004). In that case, we concluded that there was no abuse
of discretion in the judge's decision to allow introduction of
evidence that the victim, the defendant's wife, had been
pregnant at the time of her death, because the evidence was not
offered solely to garner sympathy for the victim or to cast the
defendant in a bad light. Id. at 468. It was relevant to the
defendant's state of mind and his relationship with his wife,
which were relevant to establish his motive to kill her. Id.
See, e.g., Bell, 473 Mass. at 143-145 (no abuse of discretion in
allowance of Commonwealth's motion to introduce "graphic" and
"disturbing" photographs of victim receiving treatment for burn
injuries, even where photographs "had a tendency to arouse the
jury's emotions," because of their probative value on issue of
extreme cruelty or atrocity).
In this case, the audio-video recording of the news
broadcast was relevant to support Michelle's testimony about the
defendant's confession to her while watching it, and was
particularly probative given the absence of physical or
eyewitness evidence, and the apparent lack of any motive.7
7
The defendant argues that only the surveillance footage
portion of the news broadcast should have been admitted because,
13
Because of the extensive redactions, the jury did not hear the
most inflammatory portions of the broadcast. The victim's
mother's remarks during the interview at her kitchen table,
potentially highly inflammatory, were all muted, with the
exception of her statement regarding the bullet penetrating her
son's skull. This statement corroborated Michelle's testimony
concerning the defendant's statement about the hollow-point
bullet used. Although the news broadcast contained family
photographs of the victim, they were of a type that we have
deemed admissible at a murder trial. See Commonwealth v.
Holliday, 450 Mass. 794, 816, cert. denied sub nom. Mooltrey v.
Massachusetts, 555 U.S. 947 (2008) ("Commonwealth may properly
tell the jury 'something of the person whose life [has] been
lost in order to humanize the proceedings'" [citation omitted]).
Moreover, during cross-examination and in closing argument,
the defendant relied on the recording of the news broadcast to
support his theory that Michelle fabricated the confession to
get the defendant out of the house and out of Tesseana's life.8
during their May 2, 2011, conversation, he and Michelle
principally discussed the contents of the surveillance footage.
Michelle testified, however, that the defendant also discussed
the comment by the victim's mother about the victim's head
wound. In addition, the broadcast, with its request for help in
identifying the shooter, was airing in its entirety when the
defendant decided to confess.
8
For example, in closing, defense counsel argued:
14
The judge twice instructed the jury that they were not to
consider any of the recorded statements for their truth.
Immediately before the audio-video recording was played, the
judge instructed the jury:
"You may only consider the broadcast for a limited
purpose. You may not consider the statements that you hear
for the truth of the matter asserted in those statements.
You may only consider the statements you hear for the fact
that they were made and as the context to permit you to
understand certain testimony that you will then hear from
this witness."
He reminded them of this instruction during his final charge.9
He also instructed during his charge that the jury were not to
base their decision "on sympathy, anger, passion, prejudice or
pity for or against either party in this case."
"We presume, as we must, that a jury understand[] and
follow[] limiting instructions." Commonwealth v. Jackson, 384
Mass. 572, 579 (1981). See Commonwealth v. Stegemann, 68 Mass.
"Ladies and gentlemen, I respectfully suggest to you
that the only [way] to fairly evaluate and characterize
Michelle Wilson's testimony during this trial is that she
was evasive. She got caught in [lies], which leads to one
conclusion. She was not telling the truth. . . . And then
on May 2nd, when there is a [network] [n]ews broadcast, she
wants you to believe that all of a sudden, out of the blue,
he volunteers a confession. . . . Ladies and gentlemen,
it's the confession of all confessions. And, if it seems
too good to be true, it's because it is."
9
"As you will recall, I gave you an extensive limiting
instruction about the [news] broadcast, prohibiting the use of
that evidence for the truth of the matters asserted and limiting
the use of that evidence for the purpose of providing context
for other evidence that you heard from witnesses."
15
App. Ct. 292, 306 n.25 (2007) (presuming juries obey
instructions "to base their verdicts solely on the evidence and
to exclude emotion or sympathy for either side from their
deliberations").
Further, the prosecutor did not seek to exploit the
emotional effect of the audio-video recording. His closing
remarks about the news broadcast were limited to its effect on
the defendant and the statements he made to Michelle while
watching it ("when that video aired and [the defendant] was out
there and he saw it, it came out. It just all came flooding
out"). See Holliday, 450 Mass. at 816 (prosecution did not
emphasize or exploit emotional testimony elicited from family
members of shooting victims).
In sum, while clearly prejudicial to the defendant, the
record does not support a conclusion that introduction of the
audio-video recording was unfairly prejudicial. In light of the
extensive redactions of the news broadcast, and the judge's
limiting instructions, and given its significant probative
value, the judge's decision to allow the jury to see and hear
the redacted recording was not "a clear error of judgment in
weighing the factors relevant to the decision, . . . such that
the decision falls outside the range of reasonable
alternatives." Commonwealth v. Chatman, 473 Mass. 840, 846
16
(2016), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
b. Voir dire. The defendant argues that the judge abused
his discretion by failing to question the members of the venire
regarding the prejudicial impact of seeing the news broadcast at
trial. On appeal, the defendant suggests that the judge, sua
sponte, should have asked potential jurors "whether viewing
media coverage of this exact case would affect their ability to
be fair and impartial." We conclude that the judge was not
required to make such an inquiry.
"The scope of voir dire rests in the sound discretion of
the judge . . . ." Commonwealth v. Lopes, 440 Mass. 731, 736
(2004). It is well established that "the requirement for
individual voir dire arises upon the defendant's request for
such inquiry; it is not automatic." Commonwealth v. DiRusso, 60
Mass. App. Ct. 235, 238 (2003). See Commonwealth v. Kater, 432
Mass. 404, 412-414 (2000), and cases cited. See, e.g.,
Commonwealth v. Reavis, 465 Mass. 875, 888-890 (2013), and cases
cited. Here, while the defendant did submit a request that the
judge ask nineteen specific questions "on an individual basis,"
he did not request that any questions be posed with regard to
the news broadcast.10
10
The judge inquired of individual members of the venire
whether the race of the defendant and the nature of the
17
The defendant argues on appeal that the audio-video
recording was extraneous and that the judge therefore was
required to conduct voir dire with respect it. We do not agree.
Evidence that does not lie outside the record or that is "fully
relevant and probative" of an issue at trial is not extraneous.
Kater, 432 Mass. at 413-414, discussing G. L. c. 234, § 28.
Here, because the audio-video recording of the news broadcast
was introduced in evidence at trial (a determination that was
pending at the time of jury empanelment), and because it was
probative of the circumstances surrounding the defendant's
confession, it is not "extraneous" within the meaning of G. L.
c. 234, § 28.
That the judge had yet to rule on the admissibility of the
news broadcast at the time of empanelment is significant. In
Kater, 432 Mass. at 413, we concluded that there was no abuse of
discretion in a judge's decision not to conduct individual voir
dire regarding prior bad act evidence in part because, "if the
evidence were ultimately not admitted at trial, the questions
would have then contaminated the jury." See Commonwealth v.
Ramirez, 407 Mass. 553, 554-557 (1990).
Moreover, there is no suggestion that any juror saw the
news broadcast at any time other than in the court room. See
allegation would render them incapable of being fair and
impartial.
18
Reavis, 465 Mass. at 890 ("The defendant has not indicated, nor
does the record suggest, that any of the jurors selected were
not fair and impartial"). Indeed, two members of the venire
responded affirmatively to the question regarding prior
knowledge of the case because they each recalled reading an
article in a local newspaper and one of them had a spouse who
owned a business in Lawrence. Although the potential jurors did
not remember any specifics about the case, and did not state
that their prior knowledge rendered them unable to be fair and
impartial, the judge ordered each of them excused. Accordingly,
there was no abuse of discretion in the judge's decision not to
conduct voir dire of the venire with respect to the news
broadcast.
c. Introduction of defendant's statement about handling a
firearm. The defendant contends that the judge committed
reversible error by allowing the jury to hear prejudicial
evidence about the defendant's handling of a firearm in a prior,
unrelated incident. In particular, the defendant objects to the
introduction of Max's testimony concerning the defendant's
statement that the police "probably want[ed] to talk to him why
his fingerprints were on" a gun that he had handled and that a
friend of his from Lawrence purportedly had fired. The judge
allowed this testimony to be introduced, over objection, on the
ground that it showed consciousness of guilt (i.e., that the
19
defendant sought to deceive Max as to the reason for the police
visit to his house).
Out-of-court statements are not hearsay, and may be
admissible substantively when offered to show consciousness of
guilt or liability. See Commonwealth v. Chappell, 473 Mass.
191, 207 (2015) (consciousness of guilt evidence is "relevant to
an assessment of the defendant's mental state and whether he was
criminally responsible"); Mass. G. Evid. § 1110(a) (2016).
Evidence "susceptible of a finding" that a defendant "embarked
on a series of actions consciously designed to deflect attention
from himself" may indicate consciousness of guilt (citation
omitted). Commonwealth v. Vick, 454 Mass. 418, 424 (2009).
Evidence that a defendant provided false information also may be
admissible to show consciousness of guilt. See, e.g.,
Commonwealth v. Delaney, 442 Mass. 604, 613 (2004) (defendant's
lying to coworker to cover up involvement in incident showed
consciousness of guilt).
Because the defendant preserved the objection, we review
for prejudicial error. See Commonwealth v. Dargon, 457 Mass.
387, 399 (2010). We discern no error in the admission of this
consciousness of guilt evidence. The Commonwealth was entitled
to show the jury that the defendant sought to deceive his friend
regarding the nature of the police investigation. Further, even
if there were error in allowing the introduction of this
20
testimony, any error would have had little, if any, effect on
the jury, given the defendant's other, far more explicit
statements of guilt. See Delaney, supra. In addition, in his
closing the prosecutor made no mention of the disputed
consciousness of guilt evidence. See id.
d. Prosecutor's opening statement. At the end of his
opening statement, the prosecutor said:
"Ladies and gentlemen, this crime went unsolved for
months. This crime went unsolved for months. Well,
judgment day is here. And, at the end of this case, I'd
suggest that you will find that on July 24th of 2010, the
defendant murdered Timothy Walker in cold blood."
The defendant immediately sought a mistrial. The judge denied
the motion. The defendant contends that this denial was error
because the prosecutor's use of the phrase "judgment day"
"suggested to the jury the [prosecutor's] long road to victory
was expected to end with the jury's guilty verdict."
We review the denial of a motion for a mistrial for abuse
of discretion. Commonwealth v. Lao, 460 Mass. 12, 19 (2011).
The trial judge is in the best position to assess any potential
prejudice and, where possible, to tailor an appropriate remedy
short of declaring a mistrial. See Commonwealth v. Amran, 471
Mass. 354, 360 (2016). "[T]he burden of demonstrating an abuse
of discretion is a heavy one." Commonwealth v. Medeiros, 395
Mass. 336, 351 (1985).
21
In opening statements and closing arguments, prosecutors
may not "play . . . on the jury's sympathy or emotions, or
comment on the consequences of a verdict" (footnote omitted).
Commonwealth v. Kozec, 399 Mass. 514, 516–517 (1987). "It is
improper for a prosecutor to equate a guilty verdict with
justice." Commonwealth v. Francis, 450 Mass. 132, 140 (2007).
See Commonwealth v. Degro, 432 Mass. 319, 328–329 (2000)
(prosecutor's statement to jury to "do your job" and,
implicitly, to find defendant guilty was not permissible
argument).
In framing the defendant's trial as his "judgment day," the
prosecutor improperly invoked a biblical reference to a day of
reckoning and created the impression that it was the jury's duty
to bring closure to a long-unsolved killing by rendering a
guilty verdict. This was improper and impermissible. We
conclude, however, that the judge did not abuse his discretion
in denying the defendant's motion for a mistrial in light of his
repeated instructions to the jury that opening statements and
closing arguments are not evidence. See Commonwealth v. Thomas,
429 Mass. 146, 158 (1999).
e. Prosecutor's closing argument. The defendant contends
that certain unobjected-to statements in the prosecutor's
closing argument created a substantial likelihood of a
miscarriage of justice. In particular, he maintains that the
22
prosecutor improperly vouched for Michelle's credibility, and
presented three arguments that were not supported by the
evidence: that the defendant led a "secret life"; that he did
not want Tesseana to meet his friends; and that Max recognized
the defendant when police showed him surveillance footage.
Because the defendant did not object at trial, we consider
whether any of the challenged statements was improper and, if
so, whether it created a substantial likelihood of a miscarriage
of justice. See Commonwealth v. Penn, 472 Mass. 610, 626-627
(2015), cert. denied, 136 S. Ct. 1656 (2016). We review the
statements in the context of the entire closing, the jury
instructions, and the evidence introduced at trial. See
Commonwealth v. Costa, 414 Mass. 618, 628 (1993).
i. Improper vouching. The defendant argues that certain
of the prosecutor's statements constituted improper vouching for
the credibility of a witness:
"You have to believe Michelle is one of the most evil
people on this planet to think that she's going to set this
guy up for a murder she knew he didn't commit just so he
wouldn't see her daughter anymore. That's what defense
counsel wants you to believe. That is almost wors[e] than
shooting [the victim] yourself, to set this guy up for a
murder he didn't commit. For what good reason? For no
good reason, no good reason. But they talked. And she
asked questions and he let it out. That is the reality.
That's what happened. It's not pretty but it's true.
"And she told you on the stand she was conflicted
about what to do, too. And where did we hear that before?
We heard it just by our last witness, Dolores, when she
found those sneakers. She was conflicted. She didn't know
23
what to do. It's [the defendant]. And she eventually
called the police.
"And so when Michelle sat in front of the Lawrence
[p]olice [s]tation, not knowing what to do and eventually
not going in, going home and then going to the police the
next day, that just made sense to her. And who can judge
that? What do you do? She ended up doing the right
thing." (Emphases supplied.)
Prosecutors may "argue forcefully for the defendant's
conviction." Commonwealth v. Wilson, 427 Mass. 336, 350 (1998).
The jury are presumed to understand that a prosecutor is an
advocate, and statements that are "[e]nthusiastic rhetoric,
strong advocacy, and excusable hyperbole" will not require
reversal. Id. at 351. Prosecutors may not, however, appeal to
the jury's sympathy, argue facts not in evidence, or give their
own opinion of the evidence or the credibility of a witness.
See Commonwealth v. Sanders, 451 Mass. 290, 296-297 (2008). A
prosecutor engages in improper vouching if he or she "expresses
a personal belief in the credibility of a witness, or indicates
that he or she has knowledge independent of the evidence before
the jury." Wilson, supra at 352.
The prosecutor's statements here, while they could have
been better phrased, do not rise to the level of improper
vouching. A prosecutor properly may comment on and urge the
jury to draw inferences from the trial evidence, Commonwealth v.
Chavis, 415 Mass. 703, 713 (1993), and may state logical reasons
based on inferences from the evidence why a witness's testimony
24
should be believed. Commonwealth v. Rolon, 438 Mass. 808, 816
(2003). See Commonwealth v. Caillot, 454 Mass. 245, 259 (2009),
cert. denied, 559 U.S. 948 (2010) (no improper vouching because,
"in the context in which the remark was made, the jury would
have understood that the prosecutor intended to convey not that
he knew what [the witness] had stated was truthful, but that
[the witness'] testimony was credible because there was evidence
corroborating [the witnesses'] testimony").
In the context of the argument as a whole, the prosecutor's
remarks here did not express a personal belief in Michelle's
credibility. The statements were made in response to the
defendant's contention, during cross-examination and in closing
argument, that Michelle was not credible and that she fabricated
the defendant's confession in order to force an end to the
defendant's relationship with Tesseana. Defense counsel argued
in his closing that Michelle "was not telling the truth," and
that she had persuaded Tesseana to corroborate her story. The
prosecutor permissibly could respond to these challenges. See
Commonwealth v. Bol Choeurn, 446 Mass. 510, 522 (2006) (where
credibility is at issue, it is proper for counsel to argue from
evidence why witness should be believed).
ii. Arguing facts not in evidence. Prosecutors may not
"misstate the evidence or refer to facts not in evidence."
Kozec, 399 Mass. at 516–517. They may, however, argue
25
"forcefully for a conviction based on the evidence and on
inferences that may reasonably be drawn from the evidence." Id.
at 516. "Remarks made during closing arguments are considered
in the context of the entire argument, and in light of the
judge's instructions to the jury and the evidence at trial."
Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).
The defendant contends that the prosecutor's statements
that the defendant maintained a secret life in Lawrence and that
the defendant did not want to meet Tesseana's friends or allow
her to meet any of his friends were not supported by the
evidence. Evidence was introduced at trial, however, that the
defendant rarely saw Tesseana other than at her mother's house,
she rarely met any of his friends, she had not met any member of
his family, and his mother was unaware that he had a girl friend
in Lawrence. There was also evidence that Max, the defendant's
friend and housemate, whom he had known since high school, never
met Tesseana or any of the defendant's friends from Lawrence.
With respect to the defendant's challenge to the
prosecutor's statement that Max had "recognized" the defendant
on a recording of the video surveillance footage that police
played for him, Max's testimony supported this inference. Max,
the defendant's former football teammate, testified that, when
police showed him a copy of the surveillance footage, he said
that the shooter's walk was "similar" to the defendant's, his
26
build was a "lot similar," and the way in which the man in the
footage ran was "very similar." The interviewing officer also
testified that Max's "head dropped" when he saw the recording,
and that he "put his hands up to his head." In his closing
argument, the prosecutor referred specifically to Max's
testimony that the shooter walked, ran, and was built "like" the
defendant. Thus, the prosecutor's statements were not
impermissible inferences, and it is unlikely that the jury would
have been misled by the use of the word "recognized."11
f. Review pursuant to G. L. c. 278, § 33E. We have
carefully reviewed the entire record pursuant to our duty under
G. L. c. 278, § 33E, and discern no reason to order a new trial
or to reduce the conviction to a lesser degree of guilt.
Judgment affirmed.
11
We have considered the arguments in the defendant's brief
filed pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981),
and conclude that they are unavailing.