MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant, Pedro A. Camacho, of one count of indecent assault and battery on a child under the age of fourteen, two counts of enticement of a child under the age of sixteen, and one count of assault. On the defendants appeal, we affirm.
Background. We summarize the trial evidence and proceedings, reserving further details for later discussion.
In 2012, S.M. and A.M. lived with their family in Lawrence. Their father worked as a taxi driver and owned a taxi, which he shared with the defendant. S.M. and A.M. would sometimes ride with the defendant in the taxi while he worked.
According to S.M., when he was ten or eleven years old, the defendant began to ask him questions about his sexual preferences and whether he thought certain clients were attractive. The defendant would “grab [S.M.s] face” and try to kiss him several times per shift. This behavior escalated one day when the defendant asked S.M. to expose his genitals, at which point the defendant “touched” and “play[ed] with” S.M.s genitals. The defendant touched S.M.s genitals “more than ten [or] fifteen times” and would also have S.M. sit on his lap. S.M. did not tell anyone about the abuse at that time but he stopped riding in the taxi with the defendant.
A.M. also reported that he was sexually abused by the defendant. When A.M. was thirteen or fourteen years old, the defendant began to ask A.M. to sit on his lap and expose his genitals to the defendant so that the defendant could “inspect” them. When A.M. showed the defendant his genitals, the defendant reached as if to touch A.M., at which point A.M. “backed off” and “pull[ed] [his] pants back up.”
The mother of S.M. and A.M. testified as the first complaint witness. Because the issue of when the boys disclosed their allegations of abuse figures prominently in this appeal, we review the evidence on this in some detail.
Neither victim disclosed the abuse to anyone until at least December 2018. At that time, the boys mother noticed that S.M.s behavior had changed in that he “was having bad grades at school,” “wasnt listening to [her],” and “wasnt behaving at school.” When the mother confronted S.M. about these changes in his behavior, he ran away to a nearby park, saying he wanted to die. Shortly thereafter, he disclosed to his mother the sexual abuse by the defendant. On that same day, A.M. also reported to his mother that he had been abused by the defendant.
After the mother testified that she reported the abuse to the police “immediately” after the boys had disclosed it to her, defense counsel attempted to impeach her. Armed with a police report that could be read as indicating that the boys had disclosed the abuse to their mother in December 2018,
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defense counsel tried to elicit from her that she had not reported the abuse “immediately” as she had claimed, but instead had delayed reporting it for two to three months. After the mother stated that “Im confused right now. I dont remember,” the prosecutor objected, and a lengthy side bar discussion ensued. The prosecutor pointed out that the mothers testimony about having reported the abuse immediately after learning of it was not necessarily inconsistent with the police report, which did not directly address the precise timing of when S.M. had first disclosed the abuse to his mother.
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Essentially accepting the prosecutors reading of the police report and finding that the mother was “getting confused about” the timing issue, the judge sustained the Commonwealths objection and cut off this line of cross-examination.
Other witnesses testified about the reporting timeline. S.M. testified that he told his mother about the abuse in 2019 (without more specificity). On cross-examination, the investigating police officer testified that he spoke with the mother about when her sons had made their disclosures to her, and that it was his “understanding” that this occurred in December 2018. Defense counsel sought to make much of this during closing argument, arguing that it showed that the mother lied about when the disclosure was made.
Discussion. 1. Evidentiary issues. The defendant raises three evidentiary issues that occurred during trial, arguing that the trial judge erroneously limited his ability to crossexamine the mother, S.M., and A.M. We address these contentions in turn.
a. Cross-examination of mother. The defendants lead argument is that the judge improperly cut off his effort to impeach the mother about her claim that she reported the abuse as soon as she learned of it. As an initial matter, we agree with the defendant that the police report provided him a good faith basis for such questioning. In addition, there is at least some force to the defendants argument that it was for the jury to evaluate the import of the police report, not to have the judge terminate the questioning based on her own evaluation of it.
It does not necessarily follow that the judge therefore abused her discretion in limiting cross-examination. It generally is within a trial judges discretion to limit cross-examination when there are “concerns about ․ harassment, prejudice, confusion of the issues, the witnesss safety, or interrogation that is repetitive or only marginally relevant.” Commonwealth v. Garcia, 470 Mass. 24, 35 (2014). Here, the mother testified only as the first complaint witness, and when she reported the boys allegations to the police is of marginal relevance.
In the end, we need not decide whether the judge abused her discretion, because we conclude that the defendant in any event did not demonstrate sufficient prejudice to warrant a new trial. See Commonwealth v. Barbosa, 463 Mass. 116, 124 (2012) (reversal not warranted where error had “very slight effect” [citation omitted]). It was undisputed that the boys did not disclose their allegations of abuse for approximately seven years, and whether they eventually disclosed the abuse in December 2018, or on March 1, 2019, is of little moment.
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In addition, the defendant was able to elicit from his subsequent cross-examination of the investigating officer that officers “understanding” that the mother learned of the allegations in December 2018. The defendant then made much of the issue in his closing argument. The jury had the opportunity to hear the allegations of sexual abuse directly from the two boys, and the key question was whether they believed that testimony. We are confident that the jurys verdict did not turn on the judges limited curtailing of the defendants cross-examination of the mother regarding when she first learned of the abuse.
b. Recall of S.M. For similar reasons, we discern no error or prejudice in the judges denial of the defendants request to recall S.M. to ask him about the timing of his disclosure to the mother. The defendant already had the opportunity to question S.M. about this issue. Especially in light of how marginal the precise timing of disclosure was, we discern no abuse of discretion in the judges ruling that recall of S.M. was not warranted. See Commonwealth v. Hicks, 375 Mass. 274, 276 (1978) (“Whether or not a witness should be recalled in a criminal case is a matter entrusted to the sound discretion of the trial judge”).
c. Cross-examination of A.M. During cross-examination of A.M., defense counsel attempted to suggest that A.M. had fabricated his own allegations of abuse in order to confirm his brothers testimony. For example, counsel asked A.M. if he “would do anything to protect [S.M.],” to which A.M. responded with an unequivocal “no.” When counsel sought to extend this line of questioning -- e.g., by asking whether A.M. would “fight for [his] brother if necessary” -- the judge cut off this line of questioning. The judge did not abuse her discretion in limiting cross-examination in this manner. Moreover, even if this were error, we are confident that it did not change the outcome of the trial.
2. Prosecutors closing argument. As the “sole judges of credibility,” the jury are entitled to consider whether a witness has a motive to lie. Commonwealth v. Richardson, 423 Mass. 180, 185 (1996). A prosecutor is permitted to argue in closing that a witness had no motive to lie in response to the defense claims to the contrary, so long as such an argument is based on evidence. Commonwealth v. Holt, 77 Mass. App. Ct. 716, 722 (2010), citing Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). What a prosecutor may not do, however, is “suggest to the jury that a victims testimony is entitled to greater credibility merely by virtue of [his] willingness to come into court to testify.” Helberg, supra.
In his closing argument, the defendant pursued a forceful attack on the credibility of the boys and their mother. The prosecutor responded in a manner that generally was appropriate. However, at one point, referring to the demeanor of the victims and the absence of a motive to lie, the prosecutor argued that the boys should be believed because they appeared before a “roomful of strangers” and “stood there and they told [the jury] what happened.” To the extent this invited jurors to believe the victims merely because they testified, the argument was improper. After the prosecutor finished, the judge sua sponte raised her concern regarding this issue. The prosecutor suggested that a curative instructive be given, and defense counsel agreed, acknowledging that he did not “think [any error] r[ ]ises to the level of a mistrial.” See Commonwealth v. Hrabak, 440 Mass. 650, 657 (2004) (errors in closing arguments may be “cured by an appropriate and timely curative instruction”).
Without objection, the judge instructed the jury as follows:
“Ladies and gentlemen, Im going to give you one limiting instruction prior to getting into the final instructions for the case, but given the arguments, I would just tell you, as I have before, and I will tell you again and again, closing arguments are not considered to be evidence.
“That being said, you cant consider the fact that any complaining witnesses came in here and told a roomful of strangers anything about what they testified -- or what they testified about. You cant take that as the fact that they would have no motive to lie. What you can consider is whether the Commonwealth was able to rebut any evidence of motive to lie that was put forward by the defense. So that is your limiting instruction with respect to the arguments that were made to you about any motive.”
This timely and specific instruction was sufficient to cure any error in the prosecutors closing.
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3. Jury empanelment. The jury who heard the case included juror number seven (no. 7), a mother of young children who acknowledged during individual voir dire that hearing evidence of the sexual abuse of children could “personally affect” her as a mother. After juror no. 7 confirmed that she nevertheless could be fair and impartial, the judge denied the defendants request to strike her for cause. Because the defendant had already used his complement of peremptory challenges, juror no. 7 was seated. On appeal, the defendant argues that the judge abused her discretion in denying his request to strike juror no. 7 for cause.
It is hardly surprising that a parent might be affected by hearing testimony about the sexual abuse of children. The operative question is whether -- despite any personal feelings -- juror no. 7 could be fair and impartial. The judge found that she could, and nothing in the record suggests otherwise. The defendant has not demonstrated that the judge abused her discretion in seating juror no. 7. See Commonwealth v. Colton, 477 Mass. 1, 17 (2017).
The defendant also argues that the judge improperly declined to strike juror number five (no. 5). The defendant used a peremptory challenge to strike juror no. 5, and therefore juror no. 5 did not sit on the jury that found the defendant guilty. Nevertheless, as the Commonwealth points out, some argument could be made that the defendant was prejudiced by having to use a peremptory challenge on juror no. 5 that he would have used on juror no. 7. See Commonwealth v. McCoy, 456 Mass. 838, 842 (2010). In any event, the defendants arguments with respect to juror no. 5 fail for the same reasons as those that apply to juror no. 7. Although juror no. 5 initially acknowledged that hearing evidence of sexual abuse of a child could make him “angry or defensive,” after additional questioning the judge found him indifferent. The defendant has not demonstrated that the judge abused her discretion in declining to strike juror no. 5 for cause.
Judgments affirmed.
FOOTNOTES
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. The police report was never admitted in evidence or marked as an exhibit for identification purposes. The Commonwealth nevertheless included a copy of it in a supplemental appendix that was not accompanied by any motion. Without suggesting that the report included in the supplemental appendix differed from the one before the judge, the defendant requested at oral argument and in a subsequent filing that we strike the police report from the supplemental appendix, arguing that it was improper for the judge to consider the substance of the report. Whether to strike the police report from the supplemental appendix is a difficult question. On one hand, in light of the fact that the judge expressly considered it when she ruled on the Commonwealths objection, we are unable to fulfill our appellate role without reviewing it. On the other hand, the police report is not part of “the documents and exhibits on file, the transcript of the proceedings [or] the docket entries” that together constitute the “record on appeal.” Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019). Moreover, the Commonwealth in any event did not follow proper procedures in putting the document before us. In the end, we need not resolve whether the document is properly before us, because consideration of it, if anything, favors the defendants argument with respect to whether the judge erred in terminating the line of questioning. Thus, although we ultimately rule in the Commonwealths favor on that issue, our doing so does not turn on whether the police report is properly before us.
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. The police report refers to the mothers noticing S.M.s change in behavior as having occurred “several weeks ago (possibly December [2018]),” but it does not address when exactly the mother confronted him about that change in behavior.
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. In fact, under the defendants view of the facts, the boys delayed the disclosure of their allegations less than under the Commonwealths.
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. In her opening statement, the prosecutor had asked the jury to question whether the witnesses had “any motive ․ to be saying something.” The defendant raised no objection to this part of the opening, although later in the trial the judge sua sponte questioned its propriety. The defendant only touches on the opening statement in his appeal, suggesting unpersuasively that it amounted to improper vouching. In any event, even though we agree with the judge that the prosecutors comment was inappropriate in an opening statement, any error was unpreserved and too slight to create a substantial risk of a miscarriage of justice.