Argued: December 2, 2014.
Complaint received and sworn to in the Brockton Division of the District Court Department on May 29, 2012.
The case was tried before James J. McGovern, J.
Judgment reversed. Verdict set aside.
Barry A. Bachrach for the defendant.
Audrey Anderson, Assistant District Attorney, for the Commonwealth.
Present: Cypher, Wolohojian, & Blake, JJ.
A jury convicted the defendant, Gaetjens Alphonse, of assault and battery. The defendant asks us to reverse the conviction, arguing that he was prejudiced by the prosecutor's improper closing argument, to which he objected. The defendant argues that the prosecutor's remarks that the defendant had the opportunity to lie and tailor his testimony because he was not sequestered as were the other witnesses constituted reversible error, and that the judge's curative instruction enhanced rather than cured the error. We agree.
1. Factual background.
The jury heard the following testimony. The wife of the defendant, Sandy Alphonse, testified that she arrived home with their two children -- four and six years old -- and their nephew at approximately 3:00 a.m. on May 27, 2012. Upon arrival, Sandy and the defendant began to argue.
The six year old and the nephew went to their rooms, while Sandy carried the four year old inside the house. The nephew had Sandy's cellular telephone (cell phone). While Sandy was carrying the four year old, the defendant began yelling and swearing at her and poked at her forehead. Sandy said to the defendant, " [O]h yeah, you want to hit me?" The defendant responded that he wanted to hit her and that she deserved it, but instead of hitting her, he said he was leaving.
Sandy walked away from the defendant and went to her room. The defendant followed her. Sandy testified that the defendant then punched her in the face while she was holding their four year old child. Sandy put the child down, who was yelling for the defendant to stop, grabbed a broom, and hit the defendant in the back with the broom. The defendant went into the nephew's room and locked the door. Sandy started yelling and said that if the defendant didn't give her the cell phone, she was going to start screaming loud enough for the neighbors to hear. The ...