CARHART, J.
After a Superior Court jury trial, the defendant was convicted of four counts of rape of a child and one count of indecent assault and battery on a child under the age of
Background. The victim in this case, whom we shall call Jenna,
One of those locations was the home of Jenna's aunt. On one occasion while Jenna was visiting, her aunt noticed that Jenna's underwear appeared inconsistent with what a child's underwear of Jenna's age should look like; rather, her aunt thought they appeared more consistent with the underwear of a sexually active adult.
Jenna testified that she disclosed the sexual assaults to her best friend, Teresa,
Teresa testified as a first complaint witness. She stated that Jenna told her that a close family friend had raped her and that he had touched her chest and her vagina. Teresa further testified that Jenna told her that the assaults had happened on more than one occasion.
The parties stipulated that when Jenna was thirteen years old she underwent a gynecological examination that did not reveal evidence of a sexual assault. A sexual assault nurse examiner, testifying as an expert, stated that it would be unlikely that a child rape victim would show discernible medical evidence of penetration after the passage of one year.
Discussion. 1. Closing argument. The defendant alleges that the prosecutor's closing argument was improper and that the error requires a new trial. We begin our analysis by determining whether there was error in the prosecutor's argument. If so, we must determine whether reversal is required by considering "[a] whether the defendant seasonably objected; [b] whether the error was limited to collateral issues or went to the heart of the case; [c] what specific or general instructions the judge gave the jury which may have mitigated the mistake; and [d] whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000), citing Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).
In the present case, the defendant challenges the following remarks made by the prosecutor in her closing argument:
Prosecutors may "[argue] forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Kozec, 399 Mass. at 516. Here, however, the defendant alleges the prosecutor, in effect, instructed the jury to place themselves in Jenna's shoes by asking them to "imagine" speaking about the incident of a sexual assault "to a group of strangers." We agree. It is improper for the prosecutor to invite the jury into the victim's position and to attempt to arouse juror sympathy. Commonwealth v. Grinkley, 75 Mass.App.Ct. 798, 808-809 (2009). Additionally, the defendant contends that the prosecutor impermissibly argued that "only one thing ... would motivate [Jenna] to [testify] ... the truth." While a prosecutor may argue that the jury should believe a witness based upon evidence presented at trial, a prosecutor cannot suggest the jury should believe a witness merely because the witness testified. Commonwealth v. Ramos, 73 Mass.App.Ct. 824, 826 (2009). Therefore, the remark was likewise improper.
A. Error was unpreserved. After closing arguments, there was a sidebar conference in which the following exchange between defense counsel and the judge occurred.
The defendant argues that his trial counsel's allusion to the prosecutor's "vouching for the credibility of certain witnesses" sufficiently notified the judge that the defendant objected to the aforementioned remarks. We disagree. A party must "make[] known to the court the action which [the party] desires the court to take or [the party's] objection to the action of the court." Mass.R.Crim.P. 22, 378 Mass. 892 (1979). "[T]rial counsel need not achieve perfection in identifying every impropriety... so long as the objection alerts the judge to the grounds on which trial counsel objected to the prosecutor's closing argument." Commonwealth v. Hollie, 47 Mass.App.Ct. 538, 541 n.3 (1999).
Here, after the judge stated that he viewed the prosecutor's remarks as within the bounds of proper argument, defense counsel responded by making it clear that he was "not suggesting" the argument was improper. Given this response, we conclude that trial counsel failed to alert the judge to the error now asserted on appeal. See Commonwealth v. Ortiz, 50 Mass.App.Ct. 304, 309-310 (2000). Because there was no objection to the prosecutor's closing argument, we review to determine whether the error created a substantial risk of a miscarriage of justice.
B. Significance of error. While the prosecutor's improper remarks touched upon a central issue in the case, namely Jenna's credibility, see Commonwealth v. Lewis, 465 Mass. 119, 131 (2013), the jury's verdict likely also was based on the testimony provided by Jenna's aunt, who, as we noted, stated
The jury also had to consider whether the first complaint witness (Teresa) and Jenna's grandmother were credible. Thus, the remarks at issue, while affecting one central issue, did not go "to the very heart of the case" and did not strike "at the defendant's sole defense." Commonwealth v. Shelley, 374 Mass. 466, 471 (1978), S.C., 381 Mass. 340 (1980). Contrast Commonwealth v. Beaudry, 445 Mass. 577, 585 (2005) ("verdicts rested solely on the jury's believing [the victim]"); Ramos, 73 Mass. App. Ct. at 826-827 (verdict "rested entirely on the credibility of the complaining witness").
C. Judge's instructions. Before trial commenced, the judge told the jury that "closing arguments are bookends.... [W]hat the attorneys say to you is not evidence in the case. Evidence comes exclusively from the testimony of the witnesses.... [A]ttorneys are not witnesses in the case. They weren't there, they themselves don't know what went on." Again, immediately before closing arguments, and as our cases and legal authorities advise, the judge reminded the jurors that closing arguments are not evidence.
Thus, during the span of a trial of less than three days, the
D. No substantial risk of miscarriage of justice. The Commonwealth's evidence was strong. Jenna testified at length and in detail about the sexual abuse. Her testimony was corroborated by Teresa, the first complaint witness, who testified in detail about Jenna's initial disclosure, and by the observations of her aunt, who saw the unusual "discharge" in Jenna's underwear.
Furthermore, considering the improper remarks in context, as we must, see Lewis, 465 Mass. at 132, we observe that they occurred in the course of an otherwise unobjectionable closing and they were made to a large extent in response to defense counsel's summation. In his closing argument, defense counsel focused heavily on Jenna's alleged lack of credibility, painting Jenna as a confused "young child who had a troubled life." By contrast, in her argument, which covered fourteen pages of trial transcript, the prosecutor focused heavily on evidence that corroborated Jenna's testimony.
In light of the strength of the Commonwealth's case, a lack of objection and an affirmative statement by defense counsel to the effect that the prosecutor's argument was proper, as well as the judge's instructions to the jury and that the errors were relatively brief in the context of the prosecutor's entire argument, we conclude that the errors were not so offensive as to create a substantial risk of a miscarriage of justice.
The experienced trial judge and the able defense counsel, sitting in a much better position than us, were able to witness the elocution and the impact of the argument. In this case, we cannot underestimate the "significance" that attaches to their perceptions of the argument, for "[i]t is not only `a sign that what was said sounded less exciting at trial than appellate counsel now would have it seem,' ... but it is also `some indication that the tone[,] manner[, and substance] of the now challenged aspect of the prosecutor's argument were not unfairly prejudicial.'" Commonwealth
2. Sufficiency of evidence. The defendant also argues that there was insufficient evidence presented to support his conviction of rape of a child as relative to digital penetration. However, in this regard, Jenna testified as follows.
Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), Jenna's testimony that the defendant touched her clitoris is sufficient to withstand a motion for a required finding on this charge. See Commonwealth v. Baldwin, 24 Mass.App.Ct. 200, 204-205 (1987) ("Intrusion into the vagina itself is not required to make out the wrongful penetration"). See also Commonwealth v. Moniz, 43 Mass.App.Ct. 913, 914 (1997), and cases collected therein.
3. Lesser included offense instruction. Finally, the defendant argues that the reasonable inference of Jenna's testimony in regards to digital penetration is that she was clothed during the incident and, therefore, "there was no evidence that the touching was under her clothing." Thus, the defendant asserts that the judge erred in not instructing the jury, sua sponte, on the lesser included offense of indecent assault and battery.
"[A] judge must give a lesser included offense instruction if, on the evidence, there is a rational basis for acquitting the defendant of the greater offense and convicting him of the lesser included offense." Commonwealth v. Thayer, 35 Mass.App.Ct. 599, 602 (1993), S.C., 418 Mass. 130 (1994). However,
As we have noted, Jenna testified in detail that the defendant touched her clitoris. Although Jenna's recollection of the facts preceding this incident was inconsistent, her testimony that the defendant touched her clitoris never wavered. Thus, there was no evidence that sufficiently disputed the element of penetration. Therefore, we conclude there was no error by the judge not instructing the jury on a lesser included offense. See id. at 338.
Judgments affirmed.
AGNES, J. (concurring in the result).
I agree with the majority that the defendant has not sustained his burden of establishing a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). I write separately because I think that there are several practical steps that trial judges could take to minimize the risks associated with improper closing arguments.
Many years ago, Supreme Judicial Court Chief Justice Hennessey suggested that the risk of error in closing argument would be minimized if, after the close of the evidence, counsel requested a hearing with the judge, out of the presence of the jury, to discuss what each has in mind to say in the closing argument. See Commonwealth v. Earltop, 372 Mass. 199, 206 (1977) (Hennessey, C.J., concurring). In my experience, excellent training is provided and the importance of adequate preparation is stressed by the Commonwealth's prosecutors and the
A. Guideline for lawyers. In Commonwealth v. Finstein, 426 Mass. 200, 205 n.1 (1997), the Supreme Judicial Court described as "worthwhile" a series of guidelines about what to avoid in closing argument that an experienced and respected trial judge routinely conveyed to the prosecutor and defense counsel before the closing arguments. The guidelines are as follows:
Ibid. While many judges follow a similar practice, I think the risk of improper closing arguments would be reduced if this practice became a matter of routine.
B. Special instruction for jurors. The second preventative measure is an instruction to inoculate the jury against the risk of prejudice from an improper closing argument. In the spirit of the trial judge as the "controlling mind at the trial," Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 502 (1908),
Agnes, Jr., An Ounce of Prevention Is Worth a Pound of Cure: A Collaborative Approach to Eliminate Improper Closing Arguments, 87 Mass. L. Rev. 33, 47-48 (2002).
These suggestions are in keeping with the view, firmly embedded in our practice, that the trial judge has both the authority and the responsibility to take appropriate steps to prevent error and the danger of an injustice before it occurs, even in the absence of an objection. See Commonwealth v. Wilson, 381 Mass. 90, 118 (1980). "Sitting with a jury, [a judge] should so conduct the trial that the case will go to the jury, so far as his lawful powers permit, free from irrelevant considerations and appeals to prejudice and emotion." Commonwealth v. Haley, 363 Mass. 513, 518 (1973), quoting from Lummus, The Trial Judge 19-21 (1937). See also Posell v. Herscovitz, 237 Mass. 513, 515 (1921).
O'Neill v. Ross, 250 Mass. 92, 96-97 (1924). Accordingly, the Supreme Judicial Court consistently has endorsed the practice of judges exercising discretion to intervene, sua sponte, to prevent and correct improper closing arguments. See, e.g., Commonwealth v. Sherman, 294 Mass. 379, 391 (1936); Commonwealth v. Pettie, 363 Mass. 836, 841 (1973); Commonwealth v. Montecalvo, 367 Mass. 46, 56-57 (1975); Commonwealth v. Little, 453 Mass. 766, 777-778 (2009) (Spina, J., dissenting). Indeed, judicial intervention to prevent improper closing arguments has been described as a duty. See Commonwealth v. Witschi, 301 Mass. 459, 462 (1938) ("It is the duty of a judge sitting with a jury to guard against improper arguments to the jury. Whether he [or she] shall do this by stopping counsel in the course of such an argument, by instructing the jury to disregard such an argument, or by combining both methods, rests largely in the discretion of the judge").