Com. v. Pearce

• Decision Date: 11 June 1998
• Citation: 695 N.E.2d 1059,427 Mass. 642
• Parties: COMMONWEALTH, v. Ian George PEARCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1059

695 N.E.2d 1059

427 Mass. 642

COMMONWEALTH, v. Ian George PEARCE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 5, 1998.

Decided June 11, 1998.

Linda M. Poulos, Assistant District Attorney (Robert E. Baylor, Assistant District Attorney, with her), for the Commonwealth.

Dana Alan Curhan, Boston (Lissa C. McKinney, Brighton, with him), for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, FRIED, MARSHALL and IRELAND,JJ.

ABRAMS, Justice.

Charged with forcible rape of a child, the defendant, Ian George Pearce, was convicted of the lesser included offense of rape of a child under sixteen years of age. Based on the prosecutor's summation, the Appeals Court reversed the conviction and ordered a new trial. Commonwealth v. Pearce, 43 Mass.App.Ct. 78, 681 N.E.2d 296 (1997). We granted the Commonwealth's application for further appellate review. We affirm the judgment of the Superior Court.

We summarize the facts of the case, which are reported in full in the Appeals Court's opinion. See id. at 79-80, 681 N.E.2d 296. On New Year's Eve, the defendant, who had been engaged to the victim's sister, offered to take the victim and her friends out for the evening. The victim's mother assented. After being unable to locate any of her friends and finding that two amusement arcades were closed, the defendant drove the victim to his apartment, where he had sexual intercourse with her. At the time, the victim was twelve years old. The victim did not report the incident to her mother or anyone else until two weeks later, when she realized that her menstrual period was late. A test performed at a hospital showed that she was pregnant. She had an abortion, and analysis of the fetal tissue, as well as the doctor's testimony, showed a range of possible dates of conception which arguably included the date of the alleged incident.

The defendant has raised four issues on appeal: (1) the prosecutor made improper remarks during closing argument; (2) the judge improperly prohibited inquiry into the victim's sexual history; (3) the judge erred in instructing on the lesser included offense; and (4) the judge improperly denied his request for individual voir dire of the venire on the issue of race. Because we substantially agree with the Appeals Court's resolution of the last two issues, we discuss only the first two in detail.

1. The defendant argues that, during closing argument, the prosecutor improperly appealed to the jurors' sympathies, vouched for the victim's credibility, and stated facts not in evidence. To determine whether reversal is required, we consider such factors as whether the defendant seasonably objected; whether the error pertained to a merely collateral issue or went to the heart of the case; what remedial steps, if any, the judge took to mitigate the error; and whether, in all the circumstances, the error could have made a difference to the jury. See Commonwealth v. Kozec, 399 Mass. 514, 518, 505 N.E.2d 519 (1987).

a. We first consider the defendant's claim that the prosecutor vouched for the victim's credibility. Because the defendant seasonably objected, we review this claim for prejudicial error. See Commonwealth v. Santiago, 425 Mass. 491, 500, 681 N.E.2d 1205 (1997).

Counsel may argue from the evidence, including a witness's demeanor and motive for testifying, that the witness should be believed. Commonwealth v. Dixon, 425 Mass. 223, 232, 680 N.E.2d 84 (1997). Commonwealth v. Stone, 366 Mass. 506, 516, 320 N.E.2d 888 (1974). Here, many of the prosecutor's remarks fit this description. For example, the prosecutor said, "You have to think about how she presented, how she looked, how she appeared from the witness stand. You must ask yourself: Can I believe this person? Can I believe her? You should. There's no reason not to believe her. There was nothing that occurred during the course of direct and on cross examination that diminished her credibility as a witness. Nothing." These remarks merely invited the jurors to draw a conclusion from their own observations of the victim as she testified. Therefore, they were within the bounds of proper argument.

Counsel may not, however, "express[ ] a personal belief in the credibility of a witness ... or ... indicate[ ] that he or she has knowledge independent of the evidence before the jury verifying a witness's credibility" (citations omitted). Commonwealth v. Ciampa, 406 Mass. 257, 265, 547 N.E.2d 314 (1989). Here, the prosecutor did exactly that. For example, the prosecutor said, "This is not a twelve-year-old who was sexually active running the streets, doing things that might [lead] you to believe that she would come in here and lie. Nothing. Absolutely nothing. I tell you, ladies and gentlemen, she was credible." These remarks not only expressed the prosecutor's personal belief in the victim's credibility, but also suggested that he knew, independent of the evidence, that she was not sexually active, because there was no evidence of her sexual activity, or lack thereof, at trial. The prosecutor apparently intended these remarks to refute the defendant's theory that the victim had accused him of rape to explain and avoid punishment for a pregnancy that resulted from other sexual activity. The prosecutor's remarks thus improperly suggested that he had possessed independent knowledge disproving the defendant's claim. Moreover, because the Commonwealth's case consisted primarily of the victim's testimony and four fresh complaint witnesses, her credibility went to the heart of the matter. It is possible that such improper remarks could have an effect on a jury.

Nonetheless, we do not believe reversal is required. In response to the defendant's objection, the judge specifically instructed the jury that "it is improper for any attorney to express a personal belief in the credibility of any witness, and that includes that of the complaining witness, as well as every other witness from whom you have heard. So, if you heard such, then you are to disregard it, because you are the only ones who decide whether to believe someone." We have affirmed convictions, despite improper closing argument, on the basis of much more general instructions than in this case. See, e.g., Commonwealth v. Lyons, 426 Mass. 466, 474, 688 N.E.2d 1350 (1998); Commonwealth v. Stockwell, 426 Mass. 17, 23, 686 N.E.2d 426 (1997); Commonwealth v. Barros, 425 Mass. 572, 580, 682 N.E.2d 849 (1997); Commonwealth v. Raymond, 424 Mass. 382, 392, 676 N.E.2d 824 (1997); Commonwealth v. Walker, 421 Mass. 90, 104, 653 N.E.2d 1080 (1995). In addition, the judge instructed the jury at least four times that the arguments of counsel were not evidence. Finally, it is apparent from the jury's verdict that, despite the prosecutor's argument, they rejected at least part of the victim's account, namely, that the defendant had used force. The prosecutor's vouching for the victim's credibility, although improper, was not prejudicial error and therefore does not require reversal.

b. We next consider the defendant's claim that the prosecutor improperly appealed to the jurors' sympathy for the victim. Again, the defendant seasonably objected on this ground, so we review for prejudicial error. See Santiago, supra.

"The prosecutor has a particular obligation not only to argue the Commonwealth's case forcefully and aggressively, but also to do so in a way that states the evidence clearly and fairly and inspires confidence that the verdict was reached based on the evidence rather than sympathy for the victim...." Id. at 494, 681 N.E.2d 1205. Although some of the prosecutor's remarks here did appeal to the jurors' sympathy, ¹ we do not think they went beyond "tolerable hyperbole." Commonwealth v. Hartford, 425 Mass. 378, 381, 681 N.E.2d 278 (1997). Cf. Santiago, supra at 494, 681 N.E.2d 1205 (repeated references to murder victim's age, pregnancy, and birthday undermined integrity of verdict). Moreover, after the judge instructed the jury, the defendant made a request for further instructions, to which the judge responded by instructing the jurors to disregard any plea for sympathy or emotion. We conclude that the defendant has shown no prejudicial error as to this aspect of the prosecutor's argument.

c. The defendant also contends that the prosecutor improperly asserted facts not in evidence by stating that the victim was not sexually active. Because the defendant did not object to the argument on this ground, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Loguidice, 420 Mass. 453, 455-456, 650 N.E.2d 1254 (1995).

"A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence." Commonwealth v. Kelly, 417 Mass. 266, 270, 629 N.E.2d 999 (1994), citing Commonwealth v. Hoppin, 387 Mass. 25, 30, 438 N.E.2d 820 (1982). There was no evidence at trial as to the victim's sexual activity or lack thereof. The prosecutor's remark was therefore improper. However, it did not create a substantial risk of a miscarriage of justice. The remark, as mentioned above, was apparently intended as a response to the defendant's argument that the victim falsely accused the defendant of rape to conceal her sexual activity. The defendant's theory, advanced for the first time in closing argument, lacked evidentiary support for the claim that she was sexually active. While a prosecutor must not "fight fire with fire," see Commonwealth v. Kozec, supra at 519 & n. 9, 505 N.E.2d 519, the defendant's improper argument undermines his claim that the prosecutor's improper argument requires reversal. Considering the prosecutor's argument as a whole, the judge's repeated instructions that arguments are not evidence, and the defendant's own reference to facts not in evidence, we conclude that there was no substantial risk of a miscarriage of justice.

We remind both prosecutors and defense attorneys, as well as attorneys in civil ...