Commonwealth v. Holt

Milkey, J.

(dissenting). I agree with much of what the majority has written, and I certainly agree that the prosecutor would have been wise to avoid trying to make such an issue out of the conduct of his office. Nevertheless, I disagree that any missteps amounted to reversible error. I therefore respectfully dissent.

*723As a preliminary matter, I note the attenuated nature of the defense of which the defendant claims he was deprived. That defense is based on his assertion that the initial statements of the victim, John Baker (a pseudonym), to Officer Bellissimo differed sharply from the ones he made when reinterviewed.1 Such a claim appears to rest on a shaky foundation. Although Officer Bellissimo attempted to defend the thoroughness of her questioning, she also acknowledged that the point of the initial interview was “just trying to get to the base of the sexual assault allegations, make sure it was a sexual assault and not just a regular assault.” John testified that the in-person interview with the district attorney’s office was “much more in-depth” than the telephone interview, and nothing Officer Bellissimo said contradicted that. While she acknowledged that John did not relay allegations of attempted penetration during the telephone interview, there was no evidence that she ever asked him about the subject.2 In that initial interview, John did get into such embarrassing topics as the reciprocal masturbation that he alleged occurred. That John may have failed to volunteer over the telephone that the defendant had at times pressed his penis against John’s anus is hardly as remarkable as the defendant suggests.

Moreover, the defendant did little to develop his fabrication theory during his examination of the witnesses, despite having a fair and adequate opportunity to try to do so. For example, the defendant had the opportunity to cross-examine John about whether he was “coached” by the Commonwealth (or anyone else) on how the statute of limitations problem could be avoided. In conducting that examination, defense counsel chose largely to nibble around the edges of such issues (presumably after deciding that insinuation was preferable to risking adverse responses to more direct questions). In the questions that he did pose to John, the defendant was unable to gain any appreciable traction for his fabrication theory. John’s mother testified that *724she did not have any discussions with him about what he should say in his reinterview, and the defendant chose not to call John’s stepfather to explore such issues.3 While the judge refused to let the defendant call the assistant district attorney who reopened the case, the defendant does not challenge that ruling on appeal.

Against this backdrop, I turn to the prosecutor’s closing. The evidence established that the district attorney’s office initially concluded that the statute of limitations barred a prosecution based on what it gleaned from Officer Bellissimo’s telephone interview, without conducting a more detailed in-person interview. I do not view it as improper for the prosecutor to have stated his view that his office should not have done so. To the extent that the prosecutor erred, he did so by pressing the issue to the point that it threatened to distract the jury from their principal job of assessing witness credibility. The judge properly sought to focus the jury’s attention on this role in her instructions, and I believe that those instructions adequately addressed any slight problems that the prosecutor’s closing argument may have created.

That said, in crafting her curative instruction, the trial judge cut with a knife when a scalpel was appropriate.4 I agree with the majority that it is this alleged error, not the prosecutor’s closing, that raises the most doubt about whether the verdict can stand. In the end, however, I do not think that any error in the judge’s instructions requires reversal.

As the jury were repeatedly informed by both counsel, there was uncontested evidence (through both testimony and stipulation) that the investigation was initially closed because of the district attorney’s office’s conclusion that the statute of limitations had run. In this context, I think it is unlikely that the jury viewed the judge’s poorly-phrased statement that there was “no evidence before you as to why the investigation was closed and then reopened” as contradicting the undisputed evidence. And while we are to presume that the jury followed the judge’s instructions, I do not view it as likely that the jury interpreted *725those instructions as compelling them to ignore the defendant’s claim that John fabricated his allegations of attempted penetration.5 I believe it is more likely that the jury interpreted the judge’s instructions — as they were presumably intended — as directing them to focus on the witnesses’ conduct and statements, not those of the district attorney’s office.

Further, as discussed above, the defendant’s assertion that John specifically fabricated his claim of attempted penetration as a means of avoiding the statute of limitations was thinly developed, bordering on the theoretical.6 This case did indeed turn on the credibility of John and of the defendant, something the jury had a full and adequate opportunity to assess when each of these key players took the stand at length. In the end, I think that any error caused by the judge’s statements about the course of the proceedings had at most a “very slight effect” on the jury’s verdict and that reversal is therefore not required. Commonwealth v. Sanders, 451 Mass. 290, 298 (2008), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

The majority cites as additional grounds for reversal the prosecutor’s opening statements regarding whether John had a motive to lie. I view this as harmless error as well. The central challenge that the defendant faced at trial was that he had an obvious potential reason to lie about whether he assaulted John, while John did not. This was, in colloquial terms, “the elephant in the room.” I respectfully disagree with the majority’s equating the prosecutor’s statement here with the one criticized in Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 8-10 (2000) (a hypothetical question posed in reference to the victim’s account: “Why would she he?”). Unlike the prosecutor in Riberio, the prosecutor here confined his arguments to what he asserted the evidence would show. The prosecutor did not suggest that the jury should trust John because he did, or that he had additional *726evidence of John’s trustworthiness that would not be before the jury. Moreover, as the majority acknowledges, it is not improper for a prosecutor to argue that only the defendant had a motive to lie where such an argument is grounded in the evidence, and where the credibility of the Commonwealth’s witnesses has been placed at issue. See Commonwealth v. Shea, 401 Mass. 731, 738-739 (1988). See also Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). Any problem here was principally one of timing: the prosecutor made his statement before the evidence was taken and before the defendant sought to impeach John. Even if this was error, I fail to discern what appreciable prejudice flowed from it. Perhaps the elephant had not yet entered the room, but there was no doubt that it was on its way. In my view, the prosecutor’s alluding to this fact did not constitute reversible error.

*725“There’s no evidence before you as to why the investigation was closed and then reopened so it’s irrelevant, you don’t speculate about what that is and I strike it from the record to ignore it totally.”

*726In sum, while the defendant’s trial was certainly less than perfect, I believe that he received the fair trial to which he was entitled. See Commonwealth v. Lodge, 431 Mass. 461, 476 (2000) (“The defendant is entitled to a fair trial, not a perfect one”).

In his closing, the defendant argued that John’s statements during the telephone interview “contrasted radically” with what he said later.

During his examination of Officer Bellissimo, defense counsel initially asked whether she had “a further discussion with [John] to see if there had been an attempted rape,” but then withdrew the question before it was answered.

Although the judge made it clear that the stepfather’s status as a State legislator was off-limits, she did not bar him as a witness.

The defendant characterizes this error as exacerbating the misstep the prosecutor made in his closing. In my view, the instruction is more accurately characterized as curing the prosecutor’s error while creating a new one.

In pertinent part, this is what the judge instructed:

The majority characterizes the defendant’s statute of limitations related argument as “a central theory of his defense.” While that characterization may be accurate, it says nothing about the argument’s viability.