Massachusetts Jessica's Law withstands its first challenge.

VOICES happy to announce that the Massachusetts version "Jessica's Law" has made it over yet another hurdle.  On May 27, 2011, the Massachusetts Appeals Court affirmed the conviction of Robert Giglio, the first defendant to be prosecuted and convicted under "Jessica's Law". 
Jessica's Law was signed into law in 2008 and was named after Jessica Marie Lunsford, a nine-year-old Florida girl who was abducted, raped and murdered.  A special thank you to Mark Lunsford and all of the survivors, parents and legislators who worked tirelessly alongside us to make this happen.  

COMMONWEALTH vs. ROBERT GIGLIO 
10-P-165
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of aggravated rape of a child and indecent assault and battery on a child under fourteen years of age. After the jury returned its verdict, the defendant was convicted of the subsequent offense portion of the indecent assault and battery indictment by the trial judge. The defendant raises several claims of error, none of which warrants reversal of his convictions.

Background. The jury could have found as follows. The victim, whom we shall call by the pseudonym Jane, is the defendant's niece. Jane was close to her cousin Pam (also a pseudonym), the defendant's daughter, and as a result was often at the defendant's house. On Friday, November 7, 2008, Jane and her sister had a 'sleep over' with Pam at the defendant's house. The three girls slept together in a queen-size bed in Pam's bedroom. During the night, the defendant entered Pam's bedroom twice. He digitally raped Jane on his first visit, and indecently assaulted her by rubbing her vagina with his hand on his second visit. Jane disclosed the incidents to her mother the following day. When the defendant was confronted with Jane's allegations, he attempted suicide.

The defendant testified on his own behalf that the incidents complained of by Jane never occurred, but he admitted that he had entered the girls' room on the night in question to check on them and cover them with a blanket.

Discussion. 1. The stuffed animal. At the request of the prosecutor, the judge permitted Jane, who was ten years old at the time of trial, to hold a stuffed animal while testifying. Because the defendant did not object, we review the claimed error under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). 'A judge is afforded wide discretion in fashioning procedures and modifying standard trial practices to accommodate the special needs of child witnesses.' Commonwealth v. Amirault, 404 Mass. 221, 243 (1989). Even if we were to assume error, given Jane's age, her relationship to the defendant and, as the Commonwealth observes, the ambiguity whether the stuffed animal was even visible to the jury, no substantial risk of a miscarriage of justice has been shown.

2. The photographs. Over the defendant's objection, the prosecutor introduced two photographs depicting Jane, her sister, and Pam together. In one photograph the three are shown in bed. The defendant argues that the photographs were irrelevant and prejudicial in that they only served the improper purpose of evoking sympathy from the jury. We disagree.

The photographs corroborated Jane's testimony by showing that the girls could comfortably share a bed and refuted the notion suggested by the defense that Jane and Pam were not close. Accordingly, it was well within the discretion of the trial judge to find the photographs relevant and of sufficient probative value as to outweigh any undue prejudicial effect. [FN1] See Commonwealth v. Junta, 62 Mass. App. Ct. 120, 127 (2004).

3. Closing argument. The defendant asserts that the prosecutor impermissibly vouched for Jane's credibility and improperly appealed to the jury's sympathy during closing argument. Because the defendant did not object, we consider only whether the remarks created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, supra. We agree that a number of the prosecutor's remarks came dangerously close to exceeding the boundaries of proper argument and were better left unsaid. We nonetheless conclude that the alleged prosecutorial errors do not require a new trial.

The first group of allegedly improper comments concerns Jane's credibility. Among other remarks, the prosecutor stated that Jane had 'no motive for making this up' and that if she had done so then the jury had seen the 'face of evil' in the courtroom. The prosecutor also described Jane several times as 'polite' and 'intelligent.' The defendant argues that these comments amounted to improper vouching for Jane's credibility.

'A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs. . . . When credibility is an issue before the jury, 'it is certainly proper for counsel to argue from the evidence why a witness should be believed." Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999), quoting from Commonwealth v. Raymond, 424 Mass. 382, 391 (1997). The challenged statements do not constitute vouching because '[n]othing in the prosecutor's remarks indicated that [he] had personal knowledge of the witness ['s] credibility or any independent knowledge of evidence not before the jury.' Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009). Moreover, the prosecutor's statements were made in the context of the defendant's attack on Jane's credibility. Ibid.

Next, the defendant asserts that the prosecutor's comments about the cost born by Jane and her family in pursuing these allegations constituted an appeal to the jury's sympathy. [FN2] At one point, the prosecutor stated that the 'impact on [Jane's] family has been devastating.' Assuming arguendo that the prosecutor's statements veered into prohibited territory of appeal to sympathy, when taken in the context of the entire argument, they did not create a substantial risk of miscarriage of justice. In addition, we note that in his final instructions, the judge informed the jury that the case should not be decided by sympathy. See Commonwealth v. Gordon, 422 Mass. 816, 831 (1996) (prosecutor's plea for sympathy was mitigated where judge explicitly instructed jury not to rely on sympathy).

Judgments affirmed.

By the Court (Grasso, Green & Vuono, JJ.),

Entered: May 27, 2011.

FN1. We also reject the defendant's claim that he was prejudiced when the prosecutor asked him about the photographs. While we acknowledge the dubious value of the prosecutor's question, 'Have you ever seen three more beautiful girls?' the defendant did not object and we do not believe that the question itself created a substantial risk of a miscarriage of justice.

FN2. We see no merit to the defendant's argument that the prosecutor should not have asked Jane or other witnesses about the detrimental change in the relationship between the two families once Jane disclosed the sexual abuse.