Merritt Schnipper for the defendant.
Katherine E. McMahon, Assistant District Attorney (Eileen M.
Sears, Assistant District Attorney, with her) for the
PRACTICE, CRIMINAL, ARGUMENT BY PROSECUTOR.
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.
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.
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.
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
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."
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.
Comments on complainant's credibility.
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.
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 ...