Commonwealth v. Montrond
| Decision Date | 11 January 2023 |
| Docket Number | 21-P-586 |
| Parties | COMMONWEALTH v. PEDRO MONTROND. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B.[1] On appeal, he argues that he was deprived of his right to a fair trial by the judge's refusal to pose a question to the venire regarding bias in favor of child witnesses. He also claims error in the prosecutor's closing argument. We affirm.
Background.
We summarize the facts the jury could have found. The victim whom we will call "Sally," frequently visited her grandparents at their home in Dorchester. The defendant, who was related to Sally's grandmother, lived in an apartment in the basement of the grandparents' house. He was friendly with Sally and her brother, and the three often played video games together. Sally's mother also was friendly with the defendant, and they sometimes smoked marijuana together.
Sally was about twelve years old when the defendant began to sexually abuse her. Sally testified that when she was alone in the basement apartment with the defendant, he told her that "if [she] were going to have a boyfriend [she] should know how to treat him" and then proceeded to pull down his pants. At that point, the defendant forced Sally to put her mouth on his penis and gave her "orders" about what she should be doing. The defendant then ejaculated into a towel. Two of the defendant's former girlfriends testified that the defendant cleaned himself with a towel after ejaculating during sexual intercourse. Sally also testified that on another occasion the defendant told her to lay on her stomach and tried to put his penis into her vagina.
At a certain point, Sally's mother learned that one of Sally's cousins had been abused by a third party, and she asked Sally whether she had also been abused. When Sally did not respond, the mother listed different family members, and eventually Sally identified both the other person and the defendant. Sally was then taken to the hospital where she underwent a physical examination.
The defendant testified at trial and denied the allegations. His defense centered on challenging Sally's credibility. In closing argument, defense counsel suggested that Sally had fabricated the allegations in response to her mother's suggestive questioning and highlighted various inconsistencies in Sally's testimony. The defense also focused on the absence of physical evidence of sexual abuse.
Discussion.
1. Jury voir dire.
The defendant argues that because Sally, the principal witness against him, was a child at the time the offenses allegedly occurred and was only sixteen years old at the time of trial, he was entitled to have prospective jurors questioned about their attitudes toward "child accusers." The judge twice declined to do so.[2] Although the defendant objected to the judge's ruling, he did not pursue this line of questioning during individual voir dire.[3] Nevertheless, he now asserts that the judge's failure to ask potential jurors about their views on child witnesses deprived him of a fair trial.
"A criminal defendant is entitled to juror voir dire to identify fair and unbiased jurors as a part of the right to an impartial jury." Commonwealth v. Mason, 485 Mass. 520, 523 (2020), quoting Commonwealth v. Dabney, 478 Mass. 839, 848, cert, denied, 139 S.Ct. 127, 202 (2018) . However, the judge "need not put the specific questions proposed by the defendant" to the venire. Commonwealth v. Morales, 440 Mass. 536, 548 (2003), quoting Commonwealth v. Sanders, 383 Mass. 637, 641 (1981), and "[a] judge need not probe into every conceivable bias imagined by counsel." Commonwealth v. Espinal, 482 Mass. 190, 198 (2019). "Beyond those mandated by G. L. c. 234, § 28, questions to be asked during voir dire are within the broad discretion of the judge, except when there exists a substantial risk of extraneous issues that might influence the jury." Commonwealth v. Lopes, 440 Mass. 731, 736 (2004).
Here, although there was nothing improper about the question requested by the defendant, the judge did not abuse her discretion in refusing to ask it. The defendant has not shown that there was a substantial risk of bias either for or against a child witness that might influence the jury. In any event, even if there was a reason to suspect such a bias, the judge adequately questioned the prospective jurors regarding any potential bias or prejudice.
At the beginning of the jury selection process, the judge described the nature of the charges and informed the jury: "The Commonwealth alleges that . . . when [Sally] was between the ages of [eleven] and [twelve] years of age, that the defendant caused her to perform oral sex on him and penetrated her vagina with his penis and caused her to masturbate his penis." The judge then asked, among other questions, whether any prospective jurors had "any bias ... or prejudice of any kind with respect to this case," or whether they were "aware of any reason why [they] cannot or do not stand indifferent, impartial with respect to this case." Several jurors responded affirmatively and were questioned by the judge at sidebar. The judge ultimately excused each potential juror who indicated they could not be impartial.[4]
In sum, where, as here, the prospective jurors were made aware that the case involved a child victim and were given the opportunity to make any potential bias known to the judge, we discern no basis for concluding there was a substantial risk that a bias in favor of the victim influenced the jury. See Lopes, 440 Mass. at 731, 737-738 (). In addition, at the conclusion of jury selection, the judge implicitly found that the jury was impartial without any objections from either party. See Id. at 738 (). Lastly, we note that during her final instructions, the judge made clear that jurors were to determine the facts of the case without the influence of prejudice or bias.
2. Closing argument.
The defendant alleges four errors in the prosecutor's closing argument. He asserts that the prosecutor improperly vouched for the credibility of the victim, appealed to the jury's sympathy, misstated the evidence, and invited the jury to speculate regarding the motives of Sally's mother. The defendant objected to some of the prosecutor's comments but not others. Where the defendant objected, we review for prejudicial error. Commonwealth v. Garcia, 75 Mass.App.Ct. 901, 901 (2009). Where the defendant did not object, we review for a substantial risk of miscarriage of justice. Commonwealth v. Silvelo, 96 Mass.App.Ct. 85, 91 (2019). We begin with portions of the closing to which the defendant did not object.
"The substantial risk standard requires us to determine 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.'" Silvelo, 96 Mass.App.Ct. at 91, quoting Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). Bearing in mind that statements made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury, see Commonwealth v. Cole, 473 Mass. 317, 333 (2016), we conclude there was no substantial risk of a miscarriage of justice.
a. Witness vouching.
In his closing, defense counsel emphasized the inconsistencies between Sally's testimony and her prior statements and suggested that her mother pressured her to fabricate the allegations. The prosecutor subsequently said in closing that Later, with respect to Sally's testimony, the prosecutor also said: "The only credible reason that [Sally] is saying that this happened is because she's telling the truth." The prosecutor also used the rhetorical device "I submit" a number of times, in statements such as, "I submit to you, she was credible" and "I submit to you she was a credible witness." The defendant contends that these comments amounted to improper vouching for Sally's credibility.
"A prosecutor may not vouch for the credibility of witnesses." Commonwealth v. Cooper, 100 Mass.App.Ct. 345, 356 (2021), quoting Commonwealth v Fernandes, 478 Mass. 725, 743 (2018). However, "[a] prosecutor may comment on a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs" (quotation omitted). Cooper, ...
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