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SJC-11992
COMMONWEALTH vs. AARON DIRGO.
June 21, 2016.
Practice, Criminal, Argument by prosecutor.
After a jury trial, the defendant, Aaron Dirgo, was
convicted of aggravated rape and abuse of a child (four counts),
G. L. c. 265, § 23A, and indecent assault and battery on a child
under fourteen years of age (two counts), G. L. c. 265,
§ 13B. He appealed from the convictions and from the denial of
his motion for a new trial. He argued, among other things, that
the prosecutor's improper closing argument, to which he did not
object at trial, created a substantial risk of a miscarriage of
justice. The Appeals Court affirmed. Commonwealth v. Dirgo, 87
Mass. App. Ct. 1115 (2015). We granted further appellate review
limited to the issues concerning the closing argument. Because
we conclude that the cumulative effect of various improper
statements in the prosecutor's argument created a substantial
risk of a miscarriage of justice, we reverse.
1. Facts. The complainant in the case, whom the parties
refer to as H.R., met the defendant when she was twelve years
old. Her mother and brother were friendly with the defendant
and his son, and their families socialized together.
The complainant testified that the defendant began to
sexually assault her after she volunteered to babysit for the
defendant's son. When she babysat in the evenings, she would
sometimes stay overnight at his house. At first the defendant
touched her under a blanket as they sat on the couch and watched
television. She described that over time the touching became
more "intimate." After the complainant turned thirteen years
old, the defendant "progressed . . . [to] sexual intercourse."
2
She testified that they had sexual relations frequently between
2010 and May, 2011, although she could not identify specific
dates. She also testified that, at the time, she developed
strong feelings for the defendant and wanted to be in a
relationship with him.
Although the complainant told a friend at school about the
relationship, she kept it from her mother. She also wrote notes
to the defendant about her feelings and their relationship,
although she did not deliver them. When her mother discovered
one of her notes and confronted her, the complainant denied that
she and the defendant had an inappropriate relationship. She
described her account in the note as a "dream" of hers. Some
months later, a family member saw the complainant smoking a
cigarette at the defendant's automobile repair shop and reported
this to her mother. Her mother went through her purse and
discovered cigarettes, a marijuana pipe, and another note. This
time, when she was confronted by her mother, the complainant
revealed that she and the defendant did in fact have a sexual
relationship. She also repeated those allegations to the
police.
When she testified at trial, the complainant was fifteen
years of age. She stated that she probably had been in love
with the defendant. She maintained that she initially lied to
her mother about their relationship in order to protect him.
When their relationship was discovered, she continued to be
protective toward him. She also acknowledged that she sometimes
"escap[ed] [her] reality" by pretending or imagining alternate
realities. She further acknowledged that sometimes she was
"delusional."
2. Closing argument. Although a prosecutor may argue
forcefully for a conviction based on the evidence and on
inferences that may reasonably be drawn from the evidence, and
may respond to the defense's closing argument, she must do so
within established parameters. Commonwealth v. Kozec, 399 Mass.
514, 516-517 (1987). In the present case, the defendant claims
that the prosecutor's closing argument was improper in three
main respects: first, that the prosecutor improperly asked the
jury to find the complainant credible because she was willing to
testify in court; second, that the prosecutor stated, without
evidentiary support, that the complainant's knowledge of
age-inappropriate terminology, and hence her ability to give
sexually explicit testimony, was attributable to her alleged
sexual experiences with the defendant; and third, that the
prosecutor improperly suggested that multiple other witnesses
3
who had not been called to testify were available to corroborate
the complainant's version of the events.
a. Comments on complainant's credibility. On appeal, the
Commonwealth concedes that the prosecutor improperly argued that
the complainant was credible because of her willingness to
testify in court. See Commonwealth v. Beaudry, 445 Mass. 577,
586-588 (2005). See Commonwealth v. Ramos, 73 Mass. App. Ct.
824, 826 (2009) (recognizing that it was error when prosecutor,
"[b]y alluding to conjectured embarrassment experienced by a
young woman in coming before a group of strangers to describe a
sexual assault, . . . sought to bolster the credibility of the
complainant by virtue of her willingness, despite such a burden,
to come into court and testify"). As in the Beaudry case, and
as is often the case in matters like this, the prosecution
depended heavily on the credibility of the complainant's
testimony. Beaudry, supra at 585. There was no physical
evidence or other eyewitness testimony. Id. Simply put, the
crux of the case was whether the jurors believed the
complainant's account of the events.
The prosecutor's argument in this regard was not a single,
offhanded remark. Rather, the prosecutor established throughout
the argument an overarching theme that the complainant was
credible because of her willingness to testify. After
marshalling the evidence, the prosecutor said:
"His Honor is going to give you some instructions
about assessing credibility in witnesses. And when he
gives you that instruction, he's going to ask you, what
does that witness stand to gain or to lose by testifying
the way they do? What is their motive? . . .
"What did [the complainant] gain by coming forward on
this case? What did she gain? Did she gain anything at
all?
"And think about -- think to yourselves, when she sat
on the witness stand yesterday and today and was telling
you -- relaying all of the facts of her relationship with
the defendant, relaying different sexual acts that they
would engage in, do you think that was easy for her to do
that?
"She subjected herself to your scrutiny in telling you
-- even still as a teenager, she's not yet [sixteen], she
told you about what they did together. She told you about
4
all the sexual things that they did together. Did she seem
embarrassed at times? Maybe a little uncomfortable in
using terms that for the most part were foreign to her
before she engaged in all of these things with the
defendant. Think about that.
"She subjected herself -- she answered all of [defense
counsel's] questions. You had an opportunity to see her.
And despite all of the interaction and talk about how
delusional and how she made up a lie to cover up the note
to protect the defendant, think about what she gained when
she sat here yesterday and today and told you about what
happened. I would suggest to you that she gained nothing."
The prosecutor also reminded jurors of this theme at the
end of her argument:
"I urge you again to consider the whys. Why would she
subject herself?"
Where, as here, defense counsel in closing argument
challenges the credibility of the complainant, it is proper for
the prosecutor to invite the jury to consider whether the
complainant had a motive to lie and to identify evidence that
demonstrates that the complainant's testimony is reliable.
Commonwealth v. Polk, 462 Mass. 23, 40 (2012). The prosecutor
could have argued the implausibility of the defendant's theory
that the complainant was lying to divert her mother's attention
from her cigarette and marijuana use. There was evidentiary
support for such argument, unlike the argument that the
complainant was credible because of her willingness to testify.
The prosecutor's repeated suggestions that the complainant was
credible because of her willingness to testify and to subject
herself to the scrutiny of the jury were not collateral errors,
but went straight to the heart of the case, the believability of
her allegations that she was sexually assaulted by the
defendant.
b. Complainant's knowledge of sexual terminology. This
court has repeatedly cautioned prosecutors to restrict their
"closing argument to the evidence and fair inferences that might
be drawn therefrom." Commonwealth v. Arroyo, 442 Mass. 135,
146-147 (2004). In Beaudry, 445 Mass. at 579-584, we considered
whether a prosecutor could properly argue that a child
demonstrated knowledge of sexual acts and terms not typically
possessed by a child her age, and ask the jury to infer that
such knowledge was attributable to the alleged sexual abuse by
5
the defendant. Recognizing that such knowledge might be
attributable to any number of other sources, especially given
the many other possible sources available to children today for
acquiring sexual knowledge, see id. at 582-583, we held that it
was permissible to argue that a child's knowledge of sexual
terminology was the result of a defendant's alleged assaults,
but only if there is "an adequate and specific basis in the
record . . . that excludes other possible sources of such
knowledge" (citation omitted). Id. at 584.
At trial, the jury heard the fifteen year old complainant
use terminology that was sexually explicit.1 In her closing
argument, the prosecutor repeatedly suggested that the
complainant's knowledge of sexual terminology was attributable
to being assaulted by the defendant. She argued that the
complainant "us[ed] terms that for the most part were foreign to
her before she engaged in all of these things with the
defendant"; "told you about things that would make most grown
people blush and be embarrassed to talk to strangers about and
tell you"; and "never heard [the term ejaculation] before. She
didn't know what that was." 2,3 In violation of our directive in
Beaudry, id., the prosecutor made these arguments without there
being an adequate and specific basis in the record.
The challenged argument is particularly troubling because
the prosecutor was (or at least should have been) aware that
there was in fact another possible source of the complainant's
knowledge of sexual matters. Id. at 583. Before trial, the
prosecutor produced a report by the Department of Children and
Families that described that the complainant had previously
reported that she had been sexually abused by another child.
1
In her testimony, the complainant used the terms and
phrases "sexual intercourse," "penetration," "penis," "digital
touching," "finger me," "go down on me," "oral sex," and "blow
job."
2
The Commonwealth now concedes that there was no basis for
the argument that the complainant had not previously heard the
term "ejaculation."
3
There was a basis in the record for finding that the
complainant had sexual experiences with the defendant that she
had not had previously, but that is different from finding that
her knowledge of sexual matters and her familiarity with graphic
sexual terminology originated from those experiences. The
prosecutor's argument urged the jury to find the latter.
6
The report indicates that the complainant said to her mother
that another child "[told] her all about sex all the time" and
"[made] her have sex with her all the time." Additionally,
after trial, in response to the defendant's motion for
postconviction discovery, the Commonwealth produced a police
report that also concerned these allegations.4 According to the
report, the mother stated that the complainant had "detailed
knowledge" of sexual intercourse. Thus, the evidence produced
before trial -- and the additional evidence discovered after
trial -- suggested that she may have learned these words before
the alleged sexual assaults by the defendant. See Commonwealth
v. Ruffen, 399 Mass. 811, 815 (1987) ("If the victim had been
sexually abused in the past in a manner similar to the abuse in
the instant case, such evidence would be . . . relevant on the
issue of the victim's knowledge about sexual matters"). These
reports further support our conclusion that the prosecutor
improperly argued that the child's use of sexual terminology was
attributable to the defendant without excluding other possible
sources of knowledge.
c. References to other available witnesses. Lastly, the
defendant asserts that the prosecutor improperly commented on
the constraints of the first complaint doctrine, by suggesting
that the Commonwealth had other available witnesses that it was
prevented from calling to testify. In closing argument, the
prosecutor tried to explain to the jury why she did not present
these additional witnesses:
"The Commonwealth has one shot, the one witness that
we can call and that's it. That's it. So it shouldn't be
any surprise when you hear that instruction again why the
Commonwealth did not parade witness after witness in here
to tell you the same thing. We can't. We can't."
The Commonwealth contends that this argument was a fair
response to the judge's instructions5 and the defense's closing
4
In a joint motion to expand the appellate record, the
parties stated that the police report was responsive to the
defendant's pretrial discovery motion, but was not produced by
the Commonwealth until after trial. The defendant should have
received the police report before trial. We do not imply that
by furnishing the police report when she did that the prosecutor
had it before trial.
5
Before the first complaint witness testified, the judge
instructed the jury by using a modified version of the model
7
argument6 to the extent that they implied that the complainant
reported the alleged sexual abuse to more than one person, but
the Commonwealth presented only one witness.
The prosecutor could have objected to the defendant's
argument on grounds that it unfairly took advantage of the
limitation on the prosecutor's ability to present this type of
evidence, and still have been in conformance with the law of
first complaint. Although it is permissible for a prosecutor to
object to errors in the jury instructions and to rebut, fairly
and forcefully, a defense counsel's argument, the prosecutor's
argument here strained the limits of what is permissible. See
Kozec, 399 Mass. at 519 (recognizing that where defense
counsel's argument justifies rebuttal from prosecutor, "the
prosecutor, as a representative of the government, must hold
himself to a consistently high and proper standard"). The
prosecutor pressed the parameters of permissibility by implying
that, were it not for the evidentiary limits of the first
complaint doctrine, she would have been able to "parade witness
after witness" into court to tell the jury "the same thing,"
essentially that the complainant had given the same account to
many others. This kind of argument implies that the prosecutor
possessed additional witnesses corroborating the complainant's
testimony beyond what was legitimately in evidence, a classic
concern of the first complaint doctrine. See Commonwealth v.
Misquina, 82 Mass. App. Ct. 204, 206 (2012).
3. Substantial risk of a miscarriage of justice. In this
case, where the defendant failed to object to the prosecutor's
argument, our review is limited to whether there was a
jury instructions set forth in Commonwealth v. King, 445 Mass.
217, 247-248 (2005), cert. denied, 546 U.S. 1216 (2006). By
identifying the complainant as H.R., instead of speaking about
the complainant in general terms, the judge may have implied
that she, in fact, "may have reported the alleged sexual assault
to more than one person."
6
In his closing argument, the defense counsel stated:
"We're dealing with a sexual assault. Would it have
been nice for the district attorney to at least put one of
the Chicopee Police Department detectives, an experienced
sexual assault investigator on the stand to tell you what
their investigation led to? Didn't hear from one police
witness."
8
substantial risk of a miscarriage of justice. 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." Commonwealth v. Azar, 435 Mass.
675, 687 (2002), S.C., 444 Mass. 72 (2005), quoting Commonwealth
v. LeFave, 430 Mass. 169, 174 (1999). This standard requires
that we review the evidence and the case as a whole. Azar,
supra. "We consider the strength of the Commonwealth's case,
the nature of the error, the significance of the error in the
context of the trial, and the possibility that the absence of an
objection was the result of a reasonable tactical decision."
Id., and cases cited. See Kozec, 399 Mass. at 517-519
(articulating questions that appellate court asks, on case-by-
case basis, to determine whether improper prosecutorial argument
constitutes reversible error). If, after such a review, we are
left with uncertainty that the defendant's guilt has been fairly
adjudicated, we will order a new trial. Azar, supra.
Here, the prosecutor's improper remarks -- arguing that the
complainant was credible because she was willing to testify at
trial; attributing her knowledge of sexual terminology to the
alleged assaults, without an adequate and a specific basis in
the record that excluded other possible sources of such
knowledge; and implying that there were more witnesses that were
not brought before the jury that would have corroborated the
first complaint testimony -- went directly to the jury's
assessment of the complainant's testimony and credibility, which
was the core of the Commonwealth's case. Beaudry, 445 Mass. at
585.
This is not a situation where erroneous closing statements
were offset by overwhelming evidence of a defendant's guilt.
The Commonwealth's case depended heavily on the complainant's
testimony, and hence her credibility. Some of the complainant's
testimony might have seemed implausible, including that nearly
all of the time that the defendant sexually assaulted her on the
couch in the living room, his girlfriend was present, either
sleeping in the living room on another couch or in the
defendant's bedroom. There were no other eyewitnesses. The
Commonwealth offered only limited additional testimony from the
complainant's mother regarding the complainant's relationship
with the defendant, and from the complainant's friend, who was
the first complaint witness. There was no physical evidence.
Finally, this is not a case where strong curative
instructions offset the impact of improper argument. With
respect to witness credibility and closing arguments, the judge
9
merely gave the general instructions. These instructions did
not specifically address, and were not enough to cure the
cumulative effect of, the particular errors we have identified.
Because we are left with a serious doubt whether the result
of the trial might have been different had the prosecutor's
errors in closing argument not been made, we conclude that there
was a substantial risk of a miscarriage of justice. Based on
our review of the entire case, we cannot be certain that the
defendant's guilt was fairly adjudicated. In these
circumstances, a new trial is necessary.
4. Conclusion. The judgments are reversed, the verdicts
set aside, and the case is remanded to the Superior Court for a
new trial.
So ordered.
Merritt Schnipper for the defendant.
Katherine E. McMahon, Assistant District Attorney (Eileen
M. Sears, Assistant District Attorney, with her) for the
Commonwealth.