COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

MIDDLESEX COUNTY

NO. II-P-II71

2012 SITTING

COMMONWEALTH OF MASSACHUSETTS,

APPELLEE,

Vo

LAURA L. KENDERES,

APPELLANT.

ON APPEAL FROM A JUDGMENT OF THE NATICK DISTRICT COURT

BRIEF FOR THE COMMONWEALTH

GERARD T. LEONE, JR.

DISTRICT ATTORNEY

KERRYANNE KILCOYNE

ASSISTANT DISTRICT ATTORNEY

Office of the Middlesex

District Attorney

15 Commonwealth Avenue

Woburn, MA 01801

Tel: (781) 897-6839

BBO No. 643309

kerry.kilcoyne@state.ma.us

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ISSUES PRESENTED

STATEMENTOF THE CASE

Prior Proceedinqs

Statement of the Facts

The Commonwealth's Case

The Defendant's Case

ARGUMENT

I . THE EVIDENCE WAS SUFFICIENT TO

CONVICT THE DEFENDANT OF MAKING A

FALSE REPORT OF A CRIME WHERE THE

EVIDENCE DEMONSTRATED THAT THE

DEFENDANT FALSELY REPORTED TO A

POLICE OFFICER THAT A _VERY LARGE

BLACK MAN" ASSAULTED HER BY

GRABBING HER WRISTS AND TAKING A

REMOTE CONTROL FROM HER HANDS,

WHERE CREDIBLE EVIDENCE ACTUALLY

SHOWED THAT THE REMOTE CONTROL WAS

SITTING ON THE ARM OF THE

DEFENDANT'S CHAIR AND NOT IN HER

HANDS WHEN IT WAS TAKEN.

Paqe

ii

1

2

2

3

3

6

II. THERE WAS NO ERROR, MUCH LESS A

SUBSTANITAL RISK OF A MISCARRIAGE

OF JUSTICE, BY THE PROSECUTOR'S UN-

OBJECTED TO REMARKS IN CLOSING

ARGUMENT, WHICH, IN CONTEXT, SIMPLY

ADDRESSED THE WITNESS'S CREDIBILITY

AND URGED THE JURY TO RETURN A

VERDICT OF GUILTY. 15

III. THE QUESTIONS POSED BY THE TRIALJUDGE TO THE WITNESS AND DEFENDANTWERE PROPER WHERE THEY WERE OF ACLARIFYING NATURE AND HELPEDDEVELOP TRUSTWORHY TESTIMONYPERTAINING TO THE WITNESS ANDDEFENDANT'S LINE OF SIGHT. 24

CONCLUSION 30

STATUTORYADDENDUM

ii

TABLE OF AUTHORITIES

Cases

Commonwealth v Allard

429 Mass. 756 (1999)

Commonwealth v Amazeen

375 Mass. 73 (1978)

Commonwealth v Andrade

422 Mass. 236 (1996)

Commonwealth v Bailey

12 Mass. App. Ct. 104 (1981)

Commonwealth v Beaudry

445 Mass. 577 (2005)

Commonwealth v Bush

427 Mass. 26 (1998)

Commonwealth v Butler

445 Mass. 568 (2005)

Commonwealth v Chavis

415 Mass. 703 (1993)

Commonwealth v Clary

388 Mass. 583 (1983)

Commonwealth v Deloney

59 Mass. App. Ct. 47 (2003)

Commonwealth v Dias

373 Mass. 412 (1977)

Commonwealth v. Dumais

60 Mass. App. Ct. (2003)

Commonwealth v. Elliffe

47 Mass. App. Ct. 580 (1999)

Commonwealth v. Festa

369 Mass. 419 (1976)

Commonwealth v. Fortuna

80 Mass. App. Ct. 45 (2011)

pa_ m

22

14

23

13

18, 20

I0

12

16

ii

2O

29

22

14

26

I0, 12

ii

Commonwealth v. Freeman430 Mass. III (1999)

Commonwealth v. Gomes54 Mass. App. Ct. 1 (2002)

Commonwealth v. Haley363 Mass. 513 (1973

Commonwealth v. Hanscomb367 Mass. 726 (1975

Commonwealth v_ Hassey40 Mass. App. Ct. 806 (1996)

Commonwealth v. Hastings22 Mass. App. Ct. 930 (1986)

Commonwealth v. Jackson

384 Mass. 572 (1981)

Commonwealth v. Jimenez

22 Mass. App. Ct. 286 (1986)

Commonwealth v. Kebreau

454 Mass. 287 (2009)

Commonwealth v. Kelly

69 Mass. App. Ct. 751 (2007

Commonwealth v. Kozec

399 Mass. 514 (1987)

Commonwealth v. Latimore

378 Mass. 671 (1979)

Commonwealth v. Leach

73 Mass. App. Ct. 758 (2009)

Commonwealth v. Liptak

80 Mass. App. Ct. 76 (2011)

Commonwealth v. Marquetty

416 Mass. 445 (1993)

Commonwealth v. Marshall

434 Mass. 358 (2001)

17

26

29

26

24

14

21

26

18

ii

19

9, 13

16

16

23

iii

Commonwealth v Murchison418 Mass. 58 (1994)

Commonwealth v Nichols4 Mass. App_ Ct. 606 (1976)

Commonwealth v O'Laughlin446 Mass. 188 (2006)

Commonwealth v Pina430 Mass. 266 (1999)

Commonwealth v Qualls440 Mass. 576 (2003)

Commonwealth v Ramos73 Mass. App. Ct. 824 (2009)

Commonwealth v Reaves434 Mass. 383 (2001)

Commonwealth v Rogers8 Mass. App. Ct. 646 (1979)

Commonwealth v Sanna424 Mass. 92 (1997)

Commonwealth v. Santiago425 Mass. 491 (1997)

Commonwealth v. Sheline391 Mass. 279 (1984)

Commonwealth v. Stewart375 Mass. 380 (1978)

Commonwealth v. Vaughn23 Mass. App. Ct. 40 (1986)

Commonwealth v. Viriyahiranpaiboon412 Mass. 224 (1992)

Commonwealth v. Ward28 Mass. App. Ct. 292 (1990)

Commonwealth v. Watkins63 Mass. App. Ct. 69 (2005)

16

10

14

16

14, 15

20

9-10

29-30

19

18

14

27

14

22

22

24

iv

Commonwealth v. Webster

59 Mass. (5 Cush.) 295 (1850)

Commonwealth v. Wilson

427 Mass. 336 (1998)

Jackson v. Virginia

443 U.S. 307 (1979)

Statutes

G.L.c. 269, §I3A

Other Authorities

Model Jury Instructions for use in the

District Court, Reasonable Doubt,

Instruction 2.180

21

23

2, i0

21

v

COMMONWEALTHOF MASSACHUSETTS

APPEALS COURT

MIDDLESEX COUNTY 2012 SITTING

NO. II-P-II71

COMMONWEALTHOF MASSACHUSETTS,

APPELLEE,

V.

LAURA L. KENDERES,

APPELLANT.

ON APPEAL FROM A JUDGMENT OF THE NATICK DISTRICT COURT

BRIEF FOR THE COMMONWEALTH

ISSUES PRESENTED

i. Did the Commonwealth present sufficient

evidence to prove the defendant guilty of making a

false report of a crime where the evidence demonstrated

that the defendant falsely reported to a police officer

that _a very large black man" assaulted her by grabbing

her wrists and taking a remote control from her hands,

where credible evidence actually showed that the remote

control was sitting on the arm of the defendant's chair

and not in her hands when it was taken?

2. Was there no error, much less a substantial

risk of a miscarriage of justice, by the prosecutor's

un-objected to remarks in closing argument which, in

context, simply addressed the witness's credibility and

urged the jury to return a verdict of guilty?

3. Were the questions posed by the trial judge to

the witness and defendant proper where they were of a

clarifying nature and helped develop trustworthy

testimony pertaining to the witness and defendant's

line of sight?

STATEMENT OF THE CASE

Prior Proceedinqs

On March 5, 2010, a complaint issued from Natick

District Court (No. 1087 CR 144) charging the

defendant, Laura L. Kenderes, with making a false

report of a crime in violation of G.L. c. 269, § 13A.

(R. 4). I

On January 18, 2011, the defendant was tried

before a Jury of Six, Justice Douglas W. Stoddart

presiding. At the conclusion of the Commonwealth's

case, the defendant moved for a required finding of not

i References in this brief will be cited as follows: to

the defendant's record appendix as _(R. [page])", to

the defendant's brief as _(D. Br. [page])", and to the

one volume trial transcript as _(Tr. [page])"

guilty. (Tr. 38; R. 5). 2 Justice Stoddart denied the

motion. (R. 5). At the close of all the evidence, the

defendant renewed her motion for a required finding of

not guilty, which was denied. (Tr. 85; R. 5-6).

The jury found the defendant guilty of making a

false report of a crime. (Tr. 99; R. 3). The

defendant was sentenced to one year probation with

mental health evaluation. (Tr. 103; R. 3).

The defendant filed a timely notice Of appeal on

February 9, 2011. (R. 2, 7-8). The case was docketed

in the Appeals Court on July 5, 2011.

Statement of the Facts

The Commonwealth's Case

On January 27, 2010, Patricia Rosetti was at the

Herb Connolly Car Dealership waiting for her car to be

serviced. (Tr. 23). Ms. Rosetti remained in the

waiting area for about thirty minutes. (Tr. 23, 24).

Also waiting in this area was Kenneth Brown, an African

American man, in his forties with two children. (Tr.

24, 29, 37). The trio was watching television. (Tr.

2The transcript deemed the sidebars, in which the

defendant moved for a required finding, as _inaudible."

(Tr. 1/38, 85). However, the parties have stipulated

that the defendant did move for a required finding at

the conclusion of the Commonwealth's case and at the

close of all the evidence and that the motions were

denied; such stipulation is included in the defendant's

record appendix at pages 5-6.

24). The waiting room contained a couch, a couple of

chairs in front of the couch, and then several other

chairs to the side. (Tr. 24, 36). Ms. Rosetti was

sitting on the couch; Mr. Brown and his daughters were

sitting to her left. (Tr. 24, 29).

Ms. Rosetti saw the defendant enter the waiting

area and sit down in a chair in front of her. (Tr.

25). Ms. Rosetti and the defendant were sitting

approximately ten feet away from each other. (Tr. 37) .

Later, she saw Mr. Brown approach the defendant and

reach for the remote control which was on the arm of

the defendant's chair. (Tr. 26, 28, 29-30). Mr. Brown

picked up the remote. (Tr. 26, 30). Ms. Rosetti then

heard the defendant exclaim _Don't touch me" but never

saw Mr. Brown touch the defendant, although she did

suggest that her view of the defendant was momentarily

blocked by Mr. Brown. (Tr. 26-27, 28, 30-31) . The

defendant then abruptly left the room. (Tr. 27, 30).

Ms. Rosetti and Mr. Brown remained in the waiting area

and exchanged surprised looks. (Tr. 27, 30). After

speaking with a police officer, Ms. Rosetti left the

car dealership. (Tr. 27).

Natick Police Officer Sean Munger was dispatched

to the Herb Connolly Car Dealership on January 27 th.

(Tr. 32). He arrived at the Dealership in a marked

cruiser and in full uniform. (Tr. 32). Officer Munger

spoke with Ms. Rosetti, Mr. Brown, and the defendant.

(Tr. 27, 33, 37). The defendant had called the police.

(Tr. 32).

The defendant t01d Officer Munger that she had

been assaulted in the waiting room by a _very large

black man." (Tr. 34-35). The defendant began by

telling him that the television was hurting her ears as

it was very loud so she turned the volume down. (Tr.

35). The defendant told Officer Munger that Mr. Brown

asked her to turn the volume up because he and his

children were watching the program. (Tr. 35). The

defendant told Mr. Brown to sit closer. (Tr. 35).

Officer Munger was then told by the defendant that Mr.

Brown walked over to the television and manually turned

the volume up. (Tr. 35). The defendant stated she

turned the volume back down using the remote control

which was in her possession. (Tr. 35). According to

the defendant, Mr. Brown came over, grabbed her wrists,

took the remote, and brushed up against her breasts.

(Tr. 35). Following Officer Munger's conversations

with the three parties, a complaint issued from Natick

District Court based on the facts conveyed to him.

Defendant's Case

The defendant testified that she suffered from

several disabling medical conditions including severe

fatigue. (Tr. 39). On January 27 th, the defendant was

at the Herb Connolly Dealership for a free oil change.

(Tr. 40). The defendant testified that she was told to

wait for her car in the waiting room. (Tr. 41). The

defendant claimed that as she walked down the hallway

towards the waiting room she could hear the television

because it was so loud. (Tr. 41, 58).

As the defendant entered the waiting area, she

noticed two young children, Mr. Brown, and Ms. Rosetti.

(Tr. 41-42, 43, 58). She described Mr. Brown as a tall

muscular African American. (Tr. 58, 59). She

testified that the television was on and was _blaring

extremely loud." (Tr. 43). The defendant claimed that

the television was so loud it hurt her ears, so she

turned it down using the remote control which just

happened to be on the arm of the chair that she was

sitting in. (Tr. 43). The defendant admitted that she

did not ask anyone in the room if she could turn down

the television, even though she noticed Ms. Rosetti

watching it. (Tr. 44, 60, 67). According to the

defendant, once she turned down the volume, Mr. Brown

6

stood up, yelled and told her to turn the television

back up. (Tr. 45-46, 60, 67). She suggested he move

closer to the television. (Tr. 45).

The defendant testified that Mr. Brown then left

the room and spoke with a service manager for ten

minutes. (Tr. 46-47, 69). She claimed that when Mr.

Brown returned to the room, he began ranting insisting

that she turn the volume up. (Tr. 47, 69). The

defendant admitted that she told Mr. Brown he didn't

own the room. (Tr. 47). Apparently, Mr. Brown then

went over to the television and manually turned the

volume up. (Tr. 47-48, 72).

The defendant decided to change the channel, which

she did using the remote control. (Tr. 49, 75). The

defendant said that Mr. Brown asked her for the remote

but she refused to give it to him. (Tr. 51, 75-76).

According to the defendant, Mr. Brown then darted

towards her and pounced on her _like a puma." (Tr.

51). She claimed he grabbed her wrists, squeezing

until she felt pain. (Tr. 52, 55, 76-77). The

defendant stated that Mr. Brown took the remote from

her hand. (Tr. 54, 78).

The defendant further testified that as Mr. Brown

lunged at her, she saw Ms. Rosetti facing the

television. (Tr. 53, 79). However, she also admitted

that the incident happened very fast, "less than ten

seconds", and that she could not see Ms. Rosetti when

Mr. Brown was in front of her.

79) .

(Tr. 51, 53, 54, 78-

The defendant maintained that she ran out of the

room and asked a service manager to call the police.

(Tr. 54-55). She claimed the manager told her she

would have to explain to him what occurred. (Tr. 55).

The defendant finally admitted she called the police

herself intending to report that she was the victim of

a crime. (Tr. 55, 56).

The defendant conceded that she had called the

police in the past to report other crimes in which she

was a victim or during a power outage. (Tr. 62-64).

Finally, the defendant claimed that Officer Munger was

biased against her and only spoke with her for a

minute. (Tr. 80).

I .

ARGUMENT

THE EVIDENCE WAS SUFFICIENT TO CONVICT

THE DEFENDANT OF MAKING A FALSE REPORT

OF A CRIME WHERE THE EVIDENCE

DEMONSTRATED THAT THE DEFENDANT FALSELY

REPORTED TO A POLICE OFFICER THAT A

"VERY LARGE BLACK MAN" ASSAULTED HER BY

GRABBING HER WRISTS AND TAKING A REMOTE

CONTROL FROM HER HANDS, WHERE CREDIBLE

EVIDENCE ACTUALLY SHOWED THAT THE REMOTE

CONTROL WAS SITTING ON THE ARM OF THE

DEFENDANT'S CHAIR AND NOT IN HER HANDS

WHEN IT WAS TAKEN.

The defendant contends that the evidence was

insufficient to establish the elements of making a

false report of a crime arguing that the Commonwealth

failed to demonstrate that the defendant knowingly or

intentionally made a false report. (D.' Br. 8, 11-16).

This argument is without merit.

The standard is _whether, after viewing the

evidence in the light most favorable to the

prosecution, any rational trier of fact could have

found the elements of the crime beyond a reasonable

doubt." Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), quoting Jackson v. Virqinia, 443 U.S. 307, 318-

319 (1979) (emphasis in original). Circumstantial

evidence is competent to establish guilt beyond a

reasonable doubt.

358, 361 (2001).

Commonwealth v. Marshall, 434 Mass.

Inferences may be drawn from the

evidence, Commonwealth v. Reaves, 434 Mass. 383, 389-

9•

390 (2001) and these inferences _need only be

reasonable and possible; [they] need not be necessary

or inescapable." Commonwealth v. Bush, 427 Mass. 26,

30 (1998).

To prove false report of a crime, the Commonwealth

must prove the defendant intentionally and knowingly

made or caused to be made a false report of a crime to

police officers. G. L. c. 269, § 13A; Commonwealth v.

Fortuna, 80 Mass. App. Ct. 45, 52 (2011). To violate

the statute, the defendant either had to have "made a

substantially inaccurate accounting of a crime" or

reported a crime that she knew had never occurred.

Fortuna, 80 Mass. App. Ct. at 52-53.

There was sufficient evidence that the defendant

knowingly and intentionally falsely reported to Officer

Munger that Mr. Brown grabbed her and took the remote

control from her hand. Intent is a matter of fact

which may be proved by circumstantial evidence. See

Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 614

(1976). Here the evidence showed that, when Mr. Brown

approached the defendant, the remote control was on the

arm of the chair in which the defendant was sitting and

not in her hands. (Tr. 26, 28, 29-30). Ms. Rosetti

saw Mr. Brown reach for the remote and pick it up; she

i0

did not observe Mr. Brown touch the defendant. (Tr.

26-27, 30). However, the defendant reported to Officer

Munger that Mr. Brown grabbed her wrists and the

remote, and brushed up against her breasts. (Tr. 35).

See Commonwealth v. Kelly, 69 Mass. App. Ct. 751, 755

(2007) (sufficient evidence that defendant knowingly

intended to file false stolen motor vehicle report

where defendant told officer she wanted to report

stolen car and signed report ) .

There was additional evidence that Ms. Rosetti

heard the defendant exclaim _Don't touch me" and that

her view of the defendant was momentarily blocked by

Mr. Brown when he approached the defendant. (Tr. 26-

27, 28, 30-31). However, any inconsistencies in her

testimony, if one considers the testimony inconsistent,

did not render the testimony insufficient, rather _the

issue of credibility raised by such inconsistencies"

was a question for the jury to determine. Commonwealth

v. Clary, 388 Mass. 583, 589 (1983). The defendant

herself testified that the incident happened very fast,

_less than ten seconds." (Tr. 51, 53, 54, 78-79).

Even if Mr. Brown may have brushed against the

defendant when he reached for the remote on the arm of

the chair, the defendant's call to police and report to

Ii

Officer Munger that Mr. Brown grabbed her wrists and

wrenched the remote control from her hands was _a

substantially inaccurate accounting" of the incident.

Fortuna, 80 Mass. App. Ct. at 52. As such, there was

sufficient evidence that the defendant knowingly and

intentionally, rather than through negligence or by

accident, made a false report of a crime.

The defendant places much emphasis on the

Commonwealth's use of a Weston Police Department call

log, which was never admitted into evidence, arguing

that the "Commonwealth tried to meet the intent

elements" by impeaching the defendant with previous

reports to the police. 3 (D. Br. 13-14). The

Commonwealth asked the defendant whether she contacted

the Weston Police Department fifteen times within one

year; the defendant denied that she had called the

police that many times. (Tr. 62). However, the

defendant did admit that she had called the police in

the past when she had been the victim of a crime or

during a power outage. (Tr. 62-63, 64). The

Commonwealth did not ask the defendant any further

3Such evidence, if found to be relevant and not unduly

prejudicial, would have been admissible to show a

common scheme or course of conduct, a pattern of

operation, absence of accident or mistake, intent, or

motive. Commonwealth v. Butler, 445 Mass. 568, 574

(20O5) .

12

questions regarding calls to the police. (Tr. 65-84).

Moreover, Justice Stoddart instructed the jury

immediately after the defendant's response that such

evidence was admitted only for the purpose of

impeachment, and that it was for the jury to _decide

whether or not any impeachment took place." (Tr. 65).

See Commonwealth v. Bailez, 12 Mass. App. Ct. 104, 107

(1981) (judge's prompt instruction adequate in placing

the role of negative answers to leading questions in

proper perspective).

Drawing all reasonable and possible inferences

from the evidence presented at trial, specifically that

the remote control was sitting on the arm of the

defendant's chair when Mr. Brown approached her and

that the defendant called the police and reported that

Mr. Brown took the remote from her hands by grabbing

her wrists and brushing against her breasts, a rational

juror could have concluded beyond a reasonable doubt

that the defendant falsely reported to Officer Munger

that Mr. Brown assaulted her. Latimore, 378 Mass. at

677.

The defendant's case did not cause the

Commonwealth's case tO deteriorate. Where a defendant

renews her motion for a required finding of not guilty

13

at the close of all evidence, the Court examines the

state of the evidence at that point to determine

whether "'the Commonwealth's position as to proof

deteriorated after it closed its case.'" Commonwealth

v. O'Lau_hlin, 446 Mass. 188, 198 (2006), quotinq

Commonwealth v. Sheline, 391 Mass. 279, 283 (1984).

Witness impeachment does not cause the Commonwealth's

case to deteriorate.

Mass. 576, 582 (2003).

See Commonwealth v. Qualls, 440

C f. Commonwealth v. Vau___q_hnhn,23

Mass. App. Ct. 40, 43 (1986) (proof that defendant was

incarcerated at time of crime caused Commonwealth's

case to deteriorate). The defendant's case, which

consisted of painting Ms. Rosetti as a liar to the

jury, in essence merely denied her version of events,

an issue of the weight and credibility of the evidence

which is strictly in the province of the jury to

determine. Commonwealth v. Elliffe, 47 Mass. App. Ct.

580, 584 (1999). _'Deterioration' does not mean a

conflict in the evidence which arises in the course of

the defendant's case." Commonwealth v. Hastinqs, 22

Mass. App. Ct. 930, 931 (1986). To the extent that

conflicting inferences are possible from the evidence,

_it is for the jury to determine where the truth lies."

Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978).

14

As it is the sole province of the jury to evaluate

witness testimony and determine credibility, the judge

correctly denied the defendant's motion. See Qualls,

440 Mass. a% 582-583. Despite the conflict in

testimony between the witness and defendant, the

evidence was sufficient and the defendant was not

entitled to required findings of not guilty.

II. THERE WAS NO ERROR, MUCH LESS A SUBSTANTIAL

RISK OF A MISCARRIAGE OF JUSTICE, BY THE

PROSECUTOR'S UN-OBJECTED TO REMARKS IN

CLOSING ARGUMENT WHICH, IN CONTEXT, SIMPLY

ADDRESSED THE WITNESS'S CREDIBILITY AND URGED

THE JURY TO RETURN A VERDICT OF GUILTY.

The defendant argues that the prosecutor's closing

argument was improper because she supposedly vouched

for the witness and commented on the strength of the

evidence (D. Br. 18-22), asked rhetorical questions (D.

Br. 22-23), and remarked on the consequences of the

verdict (D. Br. 23--25). Defense counsel did not

object to the prosecutor's closing argument. (Tr. 90).

It is well settled that the failure of defense counsel

to object to the statements of a prosecutor during

closing is a matter to which the appellate courts

attach significance. "It is not only a sign that what

was said sounded less exciting at trial than appellate

counsel now would have it seem, but it is also some

indication that the tone [and] manner of the now

15

challenged aspect of the prosecutor's argument were not

unfairly prejudicial." Commonwealth v. Leach, 73 Mass.

App. Ct. 758, 768 (2009). The standard to be applied

in analyzing the defendant's claim of improper un-

objected to argument is whether the error, if any

occurred, created _a substantial risk of a miscarriage

of justice." Commonwealth v. _, 80 Mass. App. Ct

76, 86 (2011). There was no error here.

First, the defendant argues that the prosecutor

"endorsed the credibility of Ms. Rosetti and the

strength of the Commonwealth's case." (D. Br. 18-21).

The defendant's argument is without merit.

Impermissible vouching occurs where a prosecutor

asserts her personal opinion as to the credibility of a

witness or the guilt of an accused. Commonwealth v.

Chavis0 415 Mass. 703, 713 (1993). The prosecutor did

neither. Rather, because defense counsel made Ms.

Rosetti's credibility an issue at trial, and because

_the case turned on the credibility of the

Commonwealth's witnesses," Commonwealth v. Pin____aa,430

Mass. 266, 269 (1999), the prosecutor was entitled to

address the issue of Ms. Rosetti's credibility in

closing. See Commonwealth v. Murchison, 418 Mass. 58,

60 (1994) (witness credibility "is obviously a proper

16

subject of comment"). In fact, the prosecutor

suggested that the jury would have to assess the

credibility of any witness _who comes before you."

(Tr. 87).

Ms. Rosetti testified that she saw Mr. Brown

approach the defendant and reach for the remote control

which was on the arm of the defendant's chair. (Tr.

26, 28, 29-30). Ms. Rosetti did not see Mr. Brown

touch the defendant, although she testified during

cross-examination that her view of the defendant was

momentarily blocked by Mr. Brown. (Tr. 26-28, 30-31).

In contrast, the defendant testified that Mr. Brown

pounced on her, grabbed her wrists, and took the remote

control from her hand. (Tr. 51-52, 54-55, 76-78). The

defendant claimed Ms. Rosetti was facing the television

during the incident. (Tr. 53, 79). The prosecutor

simply discussed the evidence, highlighting the

difference between the testimony of Ms. Rosetti and

that of the defendant, and suggested that if the jury

used their common sense, _you can believe all of what

Ms. Rosetti told you." (Tr. 87). The prosecutor's

suggestions to the jury to believe the testimony of Ms.

Rosetti over that of the defendant was proper advocacy.

See Commonwealth v. Freeman, 430 Mass. IIi, 119 (1999)

17

("[w]hen credibility is an issue before the jury, it is

certainly proper for counsel to argue from the evidence

why a witness should be believed") (citations and

quotation marks omitted). See also Commonwealth v.

Beaudry, 445 Mass. 577, 587 (2005) (_A prosecutor may

marshal the evidence in closing argument, and, in doing

so, may urge the jury to believe the government

witnesses and disbelieve those testifying for the

defendant.") The prosecutor's remarks did not indicate

any personal knowledge of the witnesses' credibility or

any independent knowledge of evidence not before the

jury. Commonwealth v. Kebreau, 454 Mass. 287, 304

(2009) .

Contrary to the defendant's contention, there was

no error in the prosecutor's statement encouraging the

jurors to _apply your common sense." (Tr. 90). The

prosecutor was entitled to use the term _common sense"

in closing argument as "jurors should use common sense

to assist in reaching their verdict." Commonwealth v.

Santiaqo, 425 Mass. 491, 498 (1997). In fact, both

defense counsel (Tr. 86) and the judge (Tr. 93) also

asked the jury to use their common sense.

Moreover, the judge instructed the jury that

closing arguments are not evidence (Tr. 92), that they

18

must decide the case based only on the evidence (Tr.

92), and that the jurors are the sole evaluators of the

evidence and a witness's credibility (Tr. 93-94). See

Commonwealth v. Sanna, 424 Mass. 92, 107-108 (1997),

citing Commonwealth v Kozec, 399 Mass. 514, 517 (1987)

(jury instruction that closing arguments are not

evidence may mitigate any prejudice in the final

argument). Thus there is no risk, in light of these

instructions, that the prosecutor's argument created a

substantial risk of a miscarriage of justice.

Second, the defendant argues that it was error for

the trial prosecutor to ask rhetorical questions during

closing, as they _gave the appearance of a shift in the

burden of proof" onto the defendant. (D. Br. 22-23).

The defendant is mistaken.

The prosecutor properly asked the jury to assess

the credibility of the defendant by rhetorically

questioning during her closing argument whether the

defendant's version of events happened as she stated.

Essentially, the prosecutor asked the jury to credit

the testimony of Ms. Rosetti rather than that of the

defendant; specifically, the prosecutor asked whether

_a large black wrestler type man" could have dashed

across a room, pounced on the defendant, and grabbed

19

her wrists without Ms. Rosetti, who was sitting only

ten feet away, not noticing. (Tr. 88). As stated

above, it is beyond dispute that "[a] prosecutor may

marshal the evidence in closing argument, and, in doing

so, may urge the jury to believe the government

witnesses and disbelieve those testifying for the

defendant." Commonwealth v. Ramo_____ss,73 Mass. App. Ct.

824, 826 (2009), quotinq Commonwealth v. Beaudry, 445

Mass. 577, 587 (2005). "Evidence-based comment that a

witness, including the defendant, has been untruthful

is equally permissible." Commonwealth v. Deloney, 59

Mass. App. Ct. 47, 52 (2003). Here the defendant

testified and thus subjected "that testimony to fair

comment as to its credibility." I__dd.

The judge instructed the jury with regard to the

burden of proof stating that the "defendant has denied

that she is guilty of the crime charged. The law

presumes the defendant to be innocent of the charge

against her. This presumptio n of innocence is a rule

of law that compels you to find the defendant not

guilty unless and until the Commonwealth produces

evidence from whatever source that proves the defendant

is guilty beyond a reasonable doubt. This burden of

proof never shifts." (Tr. 94). The judge further

2O

instructed that the _defendant is not required to call

any witnesses or produce any evidence since she is

presumed to be innocent", and that the _presumption of

innocence stays with the defendant unless and until the

evidence convinces you unanimously as a jury that the

defendant is guilty beyond a reasonable doubt." (Tr.

94). Finally, the judge read the constitutionally

approved Webster charge. See Commonwealth v. Webster,

59 Mass. (5 Cush.) 295, 320 (1850). See also

Instruction 2.180 _Reasonable Doubt,, Model Jury

Instructions for Use in the District Court (MCLE Jan.

2009). Where the jury is presumed to have followed the

Court's instructions, Commonwealth v. Jackson, 384

Mass. 572, 579 (1981), none of the trial prosecutor's

remarks could be viewed as shifting the burden onto the

defendant.

Finally, the defendant argues that the closing

argument was improper _because it referred to the

victimization of society, the consequences of the

verdict and impressed upon the jury a duty to confront

crime." (D. Br. 23). This argument should be rejected

because, in context, the remarks were not improper.

While the function of the jury is to weigh

impartially the facts and not to _confront crime", or

21

vindicate the victim, here, the prosecutor's comments

can not be interpreted as asking the jury to do either.

See Commonwealth v. Ward, 28 Mass. App. Ct. 292, 294

(1990). _Remarks made during closing arguments are

considered in the context of the entire argument, and

in light of the judge's instructions to the jury and

the evidence at trial." Commonwealth v.

Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).

The prosecutor concluded her closing argument by

asking who the victim in the case was - Mr. Brown,

society or the defendant; suggested that a person

should not be allowed to falsely report a crime; and

asked the jury to disbelieve the defendant and find her

guilty. (Tr. 89-90). Read in context, the

prosecutor's remarks simply urged a verdict. It is the

job of the jurors to return verdicts and the

Commonwealth is entitled to ask the jurors to return a

verdict of guilty. See Commonwealth v. Allard, 429

Mass. 756, 761 (1999). The prosecutor's LLn-objected to

remarks came at the very end of an otherwise reasoned

discussion of the evidence and merely implored the jury

to adopt her view of the evidence, the very purpose of

closing argument. See Commonwealth v. Dumais, 60 Mass.

App. Ct. 70, 74 (2003) (_A juror can be expected to

22

recognize that a prosecutor is likely to believe in her

own case. Indeed, the purpose of a closing argument is

to convince the jury of the correctness of one's

position."), internal citation omitted. Moreover,

_enthusiastic rhetoric, strong advocacy, and excusable

hyperbole are not grounds for reversal." Commonwealth

v. Wilson, 427 Mass. 336, 350 (1998). It can be

assumed the jury has a sufficient measure of

sophistication to screen out a degree of hyperbole.

See Commonwealth v. Andrade, 422 Mass. 236, 244 n 9

(1996) ; Commonwealth v. Marquetty, 416 Mass. 445, 451

(1993).

As stated above, the Court correctly instructed

the jury in its final charge that closing arguments are

not evidence and their decision must be based on the

evidence. (Tr. 92). Moreover, the judge made clear

that the jury did not have a duty to convict the

defendant. Rather, the judge stressed that the

defendant was presumed innocent and that _the

presumption of innocence is a rule of law which compels

you to find the defendant not guilty unless and until

the Commonwealth produces evidence from whatever source

that proves the defendant is guilty beyond a reasonable

doubt." (Tr. 94). In light of this cautioning

23

instruction, the jurors could not have believed they

had any duty to convict the defendant.

III. THE QUESTIONS POSEDBY THE TRIAL JUDGE TO THEWITNESS AND DEFENDANTWEREPROPERWHERETHEYWEREOF A CLARIFYING NATUREAND HELPEDDEVELOP TRUSTWORTHYTESTIMONY PERTAINING TOTHE WITNESS AND DEFENDANT'S LINE OF SIGHT.

The defendant argues that she is entitled to a new

trial because the _trial judge overstepped his bounds

when he actively participated" in the trial by

questioning Ms. Rosetti and the defendant. (D. Br.

28). The defendant did not object to the judge's

questioning of either the witness or the defendant and

therefore this Court reviews _whether the questioning

was error, and if so, whether that error created a

substantial risk of a miscarriage of justice."

Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 72

(2005). There was no error where the trial judge's

questions were of a clarifying nature.

Trial judges _may question witnesses to clarify

the evidence, eradicate inconsistencies, avert possible

perjury, and develop trustworthy testimony."

Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810

(1996). Here, Justice Stoddart questioned Ms. Rosetti

during redirect examination pertaining to the layout of

the waiting room and her view of the defendant and Mr.

24

Brown. (Tr. 29-31). During direct examination, Ms.

Rosetti testified that Mr. Brown was already in the

waiting area with his daughters when she arrived at the

car dealership. (Tr. 24, 29, 37). Ms. Rosetti then

saw the defendant enter the waiting room and sit down

in front of her. (Tr. 25). She testified that Mr.

Brown approached the defendant and reached for the

remote control which was on the defendant's chair.

(Tr. 26). Ms. Rosetti stated that she did not observe

Mr. Brown touch the defendant but did hear the

defendant say "Don't touch me." (Tr. 26). During

cross-examination, Ms. Rosetti admitted that when Mr.

Brown approached the defendant, her view of the

defendant was blocked. (Tr. 28).

Ms. Rosetti then testified, during redirect

examination, that she saw Mr. Brown approach the

defendant and reach for the remote control which was on

the arm of the defendant's chair. (Tr. 28). At that

point, Justice Stoddart intervened stating he was

_slightly confused" because she had just testified that

her view was blocked. (Tr. 28-29). He, therefore,

asked Ms. Rosetti to diagram, at the chalkboard, the

waiting area and where she was sitting in relation to

Mr. Brown and the defendant. (Tr. 29). After

25

diagramming the room, the judge asked Ms. Rosetti the

order in which the parties entered the waiting area.

(Tr. 29). He then asked her to _clear up this issue

about you being obscured at some point" and followed up

with three questions regarding her view of the

defendant. (Tr. 30). The defendant concedes that

these questions served to clarify Ms. Rosetti's

testimony. (D. Br. 30). See Commonwealth v. Jimenez,

22 Mass. App. Ct. 286, 293 (1986) (judicial questioning

of two police officers not improper where questions

intended to clarify testimony).

The defendant appears to take issue with the

judge's final two questions which she suggests

_assisted the Commonwealth in making their case"

against her. (D. Br. 31). A judge may properly

question witnesses even if doing so may tend to

strengthen the Commonwealth's case. Commonwealth v.

Hanscomb, 367 Mass. 726, 730 (1975); Commonwealth v.

Festa, 369 Mass. 419, 422 (1976). See also

Commonwealth v. Gomes, 54 Mass. App. Ct. I, 6 (2002)

(no error in judicial questioning even though questions

led to witness's in-court identification of defendant

as assailant).

26

Specifically, the defendant faults the judge for

asking Ms. Rosetti that if her view was obscured,

_you're talking about a couple of seconds?" to which

Ms. Rosetti answered _yes"; and _did you see anything

close to contact between those two?" to which she

answered _no." (Tr. 31). Ms. Rosetti had just

testified that she saw Mr. Brown approach the defendant

and reach for the remote control on the arm of the

chair; her view was then briefly blocked but she saw

Mr. Brown take the remote; the defendant started

yelling and _abruptly got up and left." (Tr. 31). The

judge's two questions merely helped to reconcile and

clarify her testimony of how she did not see any

contact between Mr. Brown and the defendant even if her

view was blocked. Justice Stoddart allowed defense

counsel to re-cross Ms. Rosetti. (Tr. 31). Upon re-

cross examination, Ms. Rosetti suggested that Mr. Brown

was _probably" close enough to touch the defendant.

(Tr. 31). The judge's intervention, which was not

improper, was minimized by this response. See

Commonwealth v. Stewart, 375 Mass. 380, 388 (1978)

(where answer to improper question was favorable to the

defendant, possibility of prejudice decreased).

27

Contrary to the defendant's contention, the

questioning of the defendant by the judge did not have

_the effect of impeaching her" but rather helped

clarify her testimony. (D. Br. 32). The defendant

described Mr. Brown as _this huge guy" who was built

"like a professional wrestler." (Tr. 53). She

testified that Mr. Brown darted towards her and pounced

on her, grabbed her wrists and tried to wrench the

remote control from her. (Tr. 51-52, 53). She claimed

that as Mr. Brown lunged towards her she saw Ms.

Rosetti facing the television. (Tr. 53). Justice

Stoddart interrupted the defendant asking her how she

knew what Ms. Rosetti was doing _while you're trying to

fight off this huge guy?" (Tr. 53). This was a fair

question by which the judge was trying to clarify and

develop trustworthy testimony. The defendant testified

that Mr. Brown _all of sudden" _out of the blue"

"jumped up and darted towards me" _like, really, really

fast." (Tr. 51). Although it all happened _really,

really fast", she claimed she observed Ms. Rosetti

facing towards the television and away from her, thus

implying that Ms. Rosetti could not have observed Mr.

Brown assault her. (Tr. 51, 53). Just as Justice

Stoddart tried to clarify Ms. Rosetti's view of Mr.

28

Brown and the defendant, so too was he trying to

clarify the defendant's view of the only other

testifying witness to the incident. As such, the trial

judge did not _overstep his role." See Commonwealth v.

Dias, 373 Mass. 412, 416 (1977)_ quotinq Commonwealth

v. Halez, 363 Mass. 513, 519 (1973) ("A trial judge

'need take no vow of silence. He is there to see that

justice is done .... ").

The judge, in his final instructions to the jury,

clearly stated that the credibility of the witnesses

was for the jury alone to determine, and instructed the

jury that they held the sole prerogative to decide the

facts of the case and resolve any conflicts in

testimony. (Tr. 93). Moreover, the judge neutralized

any possible prejudice that might have occurred from

his questioning of M_. Rosetti and the defendant by

telling the jury "not to consider anything I have said

or done during the trial as any indication of my

opinion as to how you should decide the defendant's

guilt or innocence. If you believe that I have

expressed or hinted at any opinion about the facts of

this case, please disregard it. I have no opinion

about the facts or what your verdict ought to be."

(Tr. 92). See Commonwealth v. R_ers, 8 Mass. App. Ct.

29

646, 651 (1979) (any possible harmful effect from

judge's questioning of witness dispelled by instruction

that any questions "I asked" _indicates nothing at all"

and that facts are for jury to determine). There was

no error, much less a substantial risk of a miscarriage

of justice.

CONCLUSION

For the foregoing reasons, the Judgment of the

Natick District Court should be affirmed.

Respectfully Submitted

For the Commonwealth,

GERARD T. LEONE, JR.

DISTRICT ATTORNEY

E KILCOYNE

Assistant District Attorney

Office of the Middlesex

District Attorney

15 Commonwealth Avenue

Woburn, MA 01801

Tel: (781) 897-6839

BBO No. 643309

kerry.kilcoyne@state.ma.us

Dated: June 14, 2012

3O

STATUTORY ADDENDUM

C|IAI'TI_I_ 269 CRIMES AGAINST I'UBLIC PEACE

Section 13A False reports to police officers

Section 13A. Whoever intentionally and knowingly makes or causes to be made a false

report of a crime to police officers shall be punished by a fine of not less than one

hundred nor more than five hundred dollars or by imprisonment in a jail or house of

correction for not more than one year, or both.

CERTIFICATE OF COMPLIANCE

Mass. R.A.P. 16 (k)

RE: Commonwealth v. Laura L. Kenderes,

Appeals Court No. II-P-II71

I, KerryAnne Kilcoyne, hereby certify that the brief

complies with the rules of court that pertain to the filing

of briefs, including, but not limited to: Mass. R.A.P.

16(a) (6) (pertinent findings or memorandum of decision) ;

Mass. R.A.P. 16(e) (references to the record); Mass. R.A.P.

16(f) (reproduction of statutes, rules, regulations); Mass.

R.A.P. 16(h) (length of briefs); Mass. R.A.P. 18 (appendix

to the briefs); and Mass. R.A.P. 20 (form of briefs,

appendices, and other papers).

ASSISTANT DISTRICT ATTORNEY

Office of the Middlesex

District Attorney

15 Commonwealth Avenue

Woburn, MA 01801

(781) 897-6839

BBO No. 643309

kerry.kilcoyne@state.ma.us

Dated: June 14, 2012

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