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Commonwealth v. Dirgo

Supreme Judicial Court of Massachusetts

June 21, 2016

COMMONWEALTH
v.
AARON DIRGO.

          Merritt Schnipper for the defendant.

          Katherine E. McMahon, Assistant District Attorney (Eileen M. Sears, Assistant District Attorney, with her) for the Commonwealth.

          PRACTICE, CRIMINAL, ARGUMENT BY PROSECUTOR.

         After a jury trial, the defendant, Aaron Dirgo, was convicted of aggravated rape and abuse of a child (four counts), G. L. c. 265, § 23A, and indecent assault and battery on a child under fourteen years of age (two counts), G. L. c. 265, § 13B. He appealed from the convictions and from the denial of his motion for a new trial. He argued, among other things, that the prosecutor's improper closing argument, to which he did not object at trial, created a substantial risk of a miscarriage of justice. The Appeals Court affirmed. Commonwealth v. Dirgo, 87 Mass.App.Ct. 1115 (2015). We granted further appellate review limited to the issues concerning the closing argument. Because we conclude that the cumulative effect of various improper statements in the prosecutor's argument created a substantial risk of a miscarriage of justice, we reverse.

         1. Facts.

         The complainant in the case, whom the parties refer to as H.R., met the defendant when she was twelve years old. Her mother and brother were friendly with the defendant and his son, and their families socialized together.

         The complainant testified that the defendant began to sexually assault her after she volunteered to babysit for the defendant's son. When she babysat in the evenings, she would sometimes stay overnight at his house. At first the defendant touched her under a blanket as they sat on the couch and watched television. She described that over time the touching became more "intimate." After the complainant turned thirteen years old, the defendant "progressed . . . [to] sexual intercourse." She testified that they had sexual relations frequently between 2010 and May, 2011, although she could not identify specific dates. She also testified that, at the time, she developed strong feelings for the defendant and wanted to be in a relationship with him.

         Although the complainant told a friend at school about the relationship, she kept it from her mother. She also wrote notes to the defendant about her feelings and their relationship, although she did not deliver them. When her mother discovered one of her notes and confronted her, the complainant denied that she and the defendant had an inappropriate relationship. She described her account in the note as a "dream" of hers. Some months later, a family member saw the complainant smoking a cigarette at the defendant's automobile repair shop and reported this to her mother. Her mother went through her purse and discovered cigarettes, a marijuana pipe, and another note. This time, when she was confronted by her mother, the complainant revealed that she and the defendant did in fact have a sexual relationship. She also repeated those allegations to the police.

         When she testified at trial, the complainant was fifteen years of age. She stated that she probably had been in love with the defendant. She maintained that she initially lied to her mother about their relationship in order to protect him. When their relationship was discovered, she continued to be protective toward him. She also acknowledged that she sometimes "escap[ed] [her] reality" by pretending or imagining alternate realities. She further acknowledged that sometimes she was "delusional."

         2. Closing argument.

         Although a prosecutor may argue forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence, and may respond to the defense's closing argument, she must do so within established parameters. Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987). In the present case, the defendant claims that the prosecutor's closing argument was improper in three main respects: first, that the prosecutor improperly asked the jury to find the complainant credible because she was willing to testify in court; second, that the prosecutor stated, without evidentiary support, that the complainant's knowledge of age-inappropriate terminology, and hence her ability to give sexually explicit testimony, was attributable to her alleged sexual experiences with the defendant; and third, that the prosecutor improperly suggested that multiple other witnesses who had not been called to testify were available to corroborate the complainant's version of the events.

         a. Comments on complainant's credibility.

         On appeal, the Commonwealth concedes that the prosecutor improperly argued that the complainant was credible because of her willingness to testify in court. See Commonwealth v. Beaudry, 445 Mass. 577, 586-588 (2005). See Commonwealth v. Ramos, 73 Mass.App.Ct. 824, 826 (2009) (recognizing that it was error when prosecutor, "[b]y alluding to conjectured embarrassment experienced by a young woman in coming before a group of strangers to describe a sexual assault, . . . sought to bolster the credibility of the complainant by virtue of her willingness, despite such a burden, to come into court and testify"). As in the Beaudry case, and as is often the case in matters like this, the prosecution depended heavily on the credibility of the complainant's testimony. Beaudry, supra at 585. There was no physical evidence or other eyewitness testimony. Id. Simply put, the crux of the case was whether the jurors believed the complainant's account of the events.

         The prosecutor's argument in this regard was not a single, offhanded remark. Rather, the prosecutor established throughout the argument an overarching theme that the complainant was credible because of her willingness to testify. After marshalling the evidence, the prosecutor said:

"His Honor is going to give you some instructions about assessing credibility in witnesses. And when he gives you that instruction, he's going to ask you, what does that witness stand to gain or to lose by testifying ...

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