although contemporaneous instructions were deficient, judge’s final charge properly informed jury of limited use of fresh complaint evidence and witnesses to whom that instruction applied
How later courts described this case
- although contemporaneous instructions were deficient, judge’s final charge properly informed jury of limited use of fresh complaint evidence and witnesses to whom that instruction applied
- contrasting prejudicial effects of various prosecutorial errors in closing argument
- allowing five fresh complaint witnesses to testify in case involving single victim
- although contemporaneous instructions were erroneous, error was cured by final instructions
Written by the judges who cited it.
The opinion
Brown, J.
(dissenting). I think the defendant did not receive a fair trial, much less one “which all parties . . . [strove] to make impeccable.” Commonwealth v. Paiva, 16 Mass. App. Ct. 561, 563 (1983). Commonwealth v. Vaughn, 32 Mass. App. Ct. 435, 435 (1992) (Constitution requires that government’s conduct of trial be free of all that is inconsistent with highest standards of professional conduct). First, the prosecutor’s closing speech carelessly and unwisely crossed the line between impermissible and fair argument; she flagrantly plowed ground *45 that our courts have pleaded with prosecutors to avoid at their peril. Another basis would be, as the majority concedes, the erroneous contemporary fresh complaint instructions. And unnecessary mischief was insinuated at various other points: the introduction of a mere departure as evidence of consciousness of guilt and “flight” 1 ; the nurse’s inculpatory “expert” opinion explaining the absence of vaginal injury; and the prosecutor’s irrelevant questions regarding whether the defendant had smoked marijuana on the night in question, all matters not conducive to a fair trial.
Here we go again — cautioning prosecutors to prepare closing argument carefully and admonishing them to adhere earnestly to the requisite ethical and professional standards and to make a good faith attempt to cause the trial to be as fair as possible. See, e.g., Commonwealth v. O’Brien, 377 Mass. 772, 778 (1979), and cases cited.
See, e.g., Commonwealth v. Carrion, 407 Mass. 263, 276-277 (1990).