MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of eight offenses relating to an incident that occurred on July 14, 2018, at the home of his ex-girlfriend (victim).
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On appeal, he challenges various aspects of the prosecutors closing argument. We affirm.
Background. We summarize the trial evidence as follows. The defendant and the victim began dating in high school. During their decade-long relationship, they had two children together. Their relationship broke up about a month before the incident.
On the evening of July 14, 2018, the victim was at her apartment, together with her friend Salma, Salmas brother, Saad, and Salmas five year old child. The defendant arrived unexpectedly and began to argue with the victim in what accurately could be described as a jealous rage. For example, multiple times the defendant demanded of the victim “who are you fucking?” The defendant pulled a gun on the victim, and, holding his phone, told the victim to call their children to say goodbye. The victim retreated into a bedroom, but the defendant forced his way in and pulled the victim into the living room. There, he put the victim into a chair, waved the gun at her, and pushed the nose of the gun so forcefully against her face that her nose began to bleed. The victim, who was “petrified” by the defendants actions, attempted to calm him down by telling him to look at photographs of their children.
Saad left the apartment with his nephew and called 911 from a different apartment in the building. His pleading call for help was recorded and played for the jury. When the police arrived and met Saad outside the building, he was crying and upset.
Prior to trial, the victim and Saad had begun dating. During his direct testimony, Saad did not volunteer this in response to general questions about how he knew the victim. Then, during cross-examination, defense counsel asked Saad if “sometime after July 14th of 2018, [his] relationship with [the victim] changed.” Saad responded, “I choose not to answer that.” However, when counsel then specifically pressed Saad on whether he had begun dating the victim after the incident, Saad acknowledged that he had and that he was still dating her at the time of trial.
During her closing argument, the prosecutor addressed Saads initial reluctance to reveal his dating relationship with the victim as follows:
“The one thing he seemed reluctant to talk about, Ill suggest, was that he is now dating [the victim]; right, he did not tell me that when I first asked him; that only came out later. Maybe thats because he saw how angry the defendant got when he thought [the victim] was having sex with somebody else. And you didnt just hear what he had to say when he testified last week; you heard his 911 call. Listen to it again. The voice on that call is the voice of a man who is in abject terror and begging for help.”
Defense counsel objected to the prosecutors suggestion that Saad feared the defendant and asked that the jury be told to disregard this. The judge ruled that there was no impropriety and declined the request for a curative instruction.
During her closing argument, the prosecutor also addressed the victims apparent reluctance to testify.
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Specifically, she stated the following:
“You also had the opportunity to see [the victim] testify, and Ill suggest her demeanor was pretty reluctant; she did not seem like she wanted to be here, she did not seem like she wanted to answer my questions; she did not seem like she wanted to talk about what happened, and thats understandable; this was an event that left her, in her words, petrified. And of course its more complicated than that too, right, shes been dating the defendant since high school; they had broken up pretty recently; they have two children together; there are lots of reasons why she might not have wanted to be here and might not have wanted to be talking about what happened to her. But she did come here and she did tell you what happened that day, and the story that she told you matched Saads on all the important details. And for all her hesitation, there was that one moment, right, when her voice caught; when she began to tear up on the stand; that moment when she was describing lying on the chair with the gun to her face, pointing to the pictures of her children on the wall and pleading for her life.”
Defense counsel did not object to this portion of the prosecutors closing argument.
Discussion. The defendant claims error in the prosecutors suggestion that Saad was reluctant to reveal his dating relationship with the victim because of fear as to how the defendant might react. We are unpersuaded. “A prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom” (quotation and citation omitted) Commonwealth v. Deane, 458 Mass. 43, 55-56 (2010). Moreover, in addressing the credibility of a witness, “[a] prosecutor can address, in a closing argument, a witnesss demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it” (quotation and citation omitted). Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 28 (2016). Here, there was ample evidence to support the prosecutors suggestion that Saads evident reluctance to reveal his dating relationship with the victim could have been driven by his fear as to how the defendant would react. Contrast Commonwealth v. Carter, 38 Mass. App. Ct. 952, 954 (1995) (improper for prosecutor to suggest that witness did not identify defendant because “the defendant had intimidated the witness -- without a hint in the record to support that suggestion”). Although the defendant maintains that evidence of, and arguments based upon, a witnesss fear of testifying are per se improper, that is simply not the state of the law. To the contrary, as the Supreme Judicial Court recently reaffirmed, whether to allow such evidence and argument generally lies within the discretion of the trial judge. Commonwealth v. Gibson, 489 Mass. 37, 49 (2022), and cases cited. We discern no abuse of such discretion here.
For similar reasons, we find no impropriety in the prosecutors suggestion that the victims reluctance to testify might have been out of fear of the defendant, particularly where the prosecutor also pointed to many other potential explanations. There was no error in this regard, much less one that created a substantial risk of a miscarriage of justice.
The defendant additionally argues that the prosecutor made an improper appeal to juror sympathy by referencing the victims testimony about imploring the defendant to look at photographs of their children. The victims testimony about how she attempted to bring an end to the defendants attack on her was an integral part of her recounting of the incident, and we discern no impropriety in the prosecutors passing reference to it. See Commonwealth v. Evans, 439 Mass. 184, 194-195 (2003) (prosecutors comment that murder victim left behind five year old child was not improper appeal to juror sympathy where prosecutor “did not repeat or dwell on the potentially sympathetic material”).
Judgments affirmed.
FOOTNOTES
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. The convictions were of: assault and battery by means of a dangerous weapon, unlawful possession of a large capacity weapon, unlawful possession of a firearm, unlawful possession of a loaded firearm, using a large capacity firearm while committing a felony, kidnapping while armed, assault and battery on a household member, and violation of a restraining order. The judge allowed a motion for a required finding of not guilty with respect to a second count of assault and battery on a household member, and the jury acquitted the defendant of three counts: one charging home invasion and two charging kidnapping while armed. In addition, in a subsequent jury-waived trial, the judge found the defendant guilty of committing the assault and battery on a family member as a subsequent offense, but not guilty of committing the unlawful possession of a firearm as an armed career criminal.
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. Unbeknownst to the jury, the Commonwealth had to subpoena the victim to compel her appearance as a witness.