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13-P-1944                                                 Appeals Court

                COMMONWEALTH   vs.   GAETJENS ALPHONSE.


                             No. 13-P-1944.

            Plymouth.     December 2, 2014. - May 5, 2015.

              Present:   Cypher, Wolohojian, & Blake, JJ.


Practice, Criminal, Argument by prosecutor, Instructions to
     jury, Sequestration of witnesses, Presence of defendant.


     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.


     Barry A. Bachrach for the defendant.
     Audrey Anderson, Assistant District Attorney, for the
Commonwealth.


     CYPHER, J.    A jury convicted the defendant, Gaetjens

Alphonse, of assault and battery.1     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

     1
       The judge granted the defendant's motion for a required
finding of not guilty on the charge of intimidating a witness.
                                                                    2


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.2     We agree.

     1.     Factual background.   The jury heard the following

testimony.    The wife of the defendant, Sandy Alphonse3, 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.


     2
       The defendant also argues that the prosecutor's closing
argument created reversible error because the prosecutor
improperly vouched for a witness by referring to facts not in
evidence. We need not reach this issue in light of our
conclusion that there was reversible error. We caution the
prosecutor to be careful of this issue in the event there is a
new trial. See Commonwealth v. Villalobos, 7 Mass. App. Ct.
905, 905-906 (1979).
     3
         We refer to her using her first name to avoid confusion.
                                                                      3


    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

defendant opened the door, but when the nephew tried to give

Sandy the cell phone, the defendant took it.     The defendant then

dressed and left the house.

    The defendant testified that when Sandy returned home with

their two children and their nephew, he began yelling at her and

they argued.    Sandy told the defendant to leave the house and he

began to pack.    When the defendant opened the front door to

leave, Sandy hit him with a broom.    The defendant then went back

into the house to get his sneakers that he had forgotten in his

room.    Upon leaving his room, the defendant took Sandy's cell

phone from the nephew and Sandy slapped the defendant in the

face.    The defendant left the house.

    2.    Closing argument.   The defendant objected to the

prosecutor's statement in closing argument that the defendant
                                                                      4


was present at trial and not sequestered.     During closing

argument, the prosecutor said:

         "Who does have motivation to lie in this case? The
    Defendant does. He's -- he's the only person that has
    something to lose from this case. He's got every reason to
    lie to you. He's got the opportunity to lie to you. Where
    was everyone else while testimony was going on? All the
    other witnesses [sic] outside the courtroom. Where's the
    Defendant when all the other evidence, all the other
    witnesses were coming in? Sitting right here. It's the
    opportunity to tailor his version of events to what you
    already know."

At that point, the judge told the prosecutor, "[B]e careful down

that road, okay?    Be careful."   At the conclusion of the

prosecutor's closing, defense counsel objected to that portion

of the closing, and now argues that the standard of review

should be whether there was prejudicial error.     The Commonwealth

points out, however, that since the defendant was satisfied with

the curative instruction, the standard of review should be

whether any error created a substantial risk of a miscarriage of

justice.   We need not decide which is the proper standard

because we conclude that under either standard the defendant is

entitled to a new trial.

    The defendant has a State and a Federal constitutional

right "to hear the Commonwealth's evidence and to confront the

witnesses against him."    Commonwealth v. Person, 400 Mass. 136,

139-140 (1987).    See Commonwealth v. Amirault, 424 Mass. 618

(1997).    As determined in Commonwealth v. Person, supra, the
                                                                  5


prosecutor's statement that the defendant was present at trial

and therefore had the opportunity to tailor his testimony is

error.4

     Whether the error in this case requires a new trial depends

on "the context of the entire argument, the facts of the case,

and the rationale underlying the Person principle."

Commonwealth v. Sherick, 401 Mass. 302, 303 (1987).   Here, there

was no evidence to support the prosecutor's statement.    Also,

the error went to the heart of the case -- the credibility of

the witnesses, in particular, the defendant, who testified.

Whether the jury convicted the defendant depended entirely on

whether the jury believed the testimony of Sandy or the

defendant.5   Although in his curative instruction the judge


     4
       It does not appear that the Supreme Judicial Court has
determined that such a statement, although error, is
constitutional in nature. See Commonwealth v. Person, supra at
142, n.7. The United States Supreme Court has held that a
statement in closing argument about the defendant not having
been sequestered did not offend a defendant's Federal
constitutional right to confront witnesses or testify on his own
behalf. Portuondo v. Agard, 529 U.S. 61 (2000). Several States
have held that a comment about the defendant's presence and lack
of sequestration violates the State constitution. See, e.g.,
State v. Walsh, 127 Haw. 271, 284-289 (2011); State v. Jones,
580 A.2d 161, 162-163 (Me. 1990); State v. Hemingway, 148 Vt.
90, 92-93 (1987).
     5
       Photographs of Sandy taken the day after the incident were
admitted in evidence at trial, but were not included in the
record before this court. The appellant has the burden to
produce the record on appeal. Mass.R.A.P. 18, as amended, 428
Mass. 1601 (1998). Here, the defendant did not provide to this
court the photographic evidence to support his argument that the
                                                                     6


correctly advised the jury regarding the meaning of

sequestration of the witnesses, he did not advise the jury that

the defendant had a constitutional right to be present at trial

and that his presence should not be used against him.6    The judge

should have given such an instruction.    The curative instruction

therefore compounded the original error by drawing further

attention to the possibility that the defendant had the

opportunity to tailor his testimony.     See Commonwealth v.

Person, supra at 139-140.    In these circumstances, whether

viewed under a prejudicial error standard or a substantial risk

standard, a new trial is required.

                                     Judgment reversed.

                                     Verdict set aside.




error was prejudicial. Nor did the Commonwealth provide the
photographs in support of its argument that the error was
harmless. As a result, we have not had the opportunity to
consider the photographs in this equation.
     6
         The judge instructed the jury as follows:

          "Alright, Ladies and Gentlemen of the Jury, let me
     instruct you as to the law. First of all, the Commonwealth
     talked about the fact that the Defendant, Mr. Alphonse, was
     present when witnesses were sequestered. They were out,
     came back in. Well there's a reason for that. I ordered
     the sequestration of the witnesses because you want the
     testimony of the witnesses to be untarnished or untouched
     by testimony of witnesses prior. So that's -- that's how
     it works for sequestering witnesses."

The instruction is correct as far as it goes -- as an
instruction explaining sequestration.
