Commonwealth v. Albert Tremblay.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-349

COMMONWEALTH

vs.

ALBERT TREMBLAY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On January 31, 2020, the defendant, Albert Tremblay, was

convicted by a Superior Court jury of three counts of child rape

and three counts of indecent assault and battery on a child

under fourteen. On appeal, the defendant argues that the

prosecutor made multiple statements during closing argument that

were improper and prejudicial, and thus require reversal of the

convictions. We affirm.

Background. We summarize the evidence presented at trial,

reserving certain details for later discussion.

The victim testified that when she was between the ages of

seven and thirteen years old, the defendant, who was her uncle,
repeatedly sexually abused her.1 During this time, the defendant

lived with his mother, the victim's grandmother, in Attleboro.

According to the victim, it was during her visits to her

grandmother's house that the defendant would abuse her.

Beginning when the victim was seven or eight years old, the

defendant began to grope the victim's genital area and force her

to touch his genital area. The abuse escalated over time to

include the defendant forcibly penetrating the victim's vagina

and mouth with his penis.

One day in June 2004, the victim's parents dropped her off

at her grandmother's house while they went on a trip to New

Hampshire. That evening, the victim was playing video games

with the defendant in the defendant's room. At one point, the

defendant began to sexually abuse her. The victim decided she

"wasn't going to take it anymore." She got a knife from the

kitchen and sat with it all night. In the morning, the

defendant followed the victim down the driveway as she left to

go to school. The victim showed him the knife and told him to

stay away from her. On June 23, 2004, the victim, thirteen

years old at that time, disclosed in an interview with the

police that she had been "molested" by a relative at her

1 The victim was twenty-nine years old when she testified at
trial.

2
grandmother's house. The victim did not identify the defendant

as her abuser to the police out of concern that the disclosure

would cause much distress to her grandmother. In 2014, the

victim identified the defendant as the person who abused her.

The defendant did not present a defense after the

Commonwealth rested its case.

Discussion. The defendant argues that the Commonwealth

committed several errors in its closing argument by (1) arguing

the victim had no motive to lie after successfully excluding the

evidence of motive, (2) arguing facts and inferences either

contrary to, or unsupported by, the evidence, and (3) shifting

the burden of proof to the defendant. The defendant preserved

his arguments through timely objections. We therefore review

his claims for prejudicial error. Commonwealth v. Cruz, 445

Mass. 589, 591 (2005). "An error is not prejudicial if it 'did

not influence the jury, or had but very slight effect'; however,

if we cannot find 'with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error,'

then it is prejudicial" (citation omitted). Id.

When evaluating a claim of error in a prosecutor's closing

argument, we must consider "(1) whether the defendant seasonably

objected; (2) whether the error was limited to collateral issues

3
or went to the heart of the case; (3) what specific or general

instructions the judge gave the jury which may have mitigated

the mistake; and (4) whether the error, in the circumstances,

possibly made a difference in the jury's conclusions."

Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). "Once a

properly raised objection to a prosecutor's argument is found to

be valid, the entire record, including the balance of the

prosecutor's argument, becomes relevant in determining whether

the error was prejudicial to the point of requiring a reversal

of the conviction." Commonwealth v. Kozec, 399 Mass. 514, 523

(1987). "We consider the cumulative effects of all the errors

in the context of the entire arguments and the case as a whole."

Commonwealth v. Wilson, 427 Mass. 336, 351 (1998).

1. Victim's motive to lie. The defendant contends that

the Commonwealth erred by arguing that the victim had no motive

to lie after successfully excluding evidence of her motive.

Prior to trial, the Commonwealth moved to exclude from evidence

several statements made by the defendant to a detective. These

statements included the defendant's claim that his sister, the

victim's mother, had stated, "If you spend any more of mom's

money, I'll kill you." The judge also sustained the

Commonwealth's objection to the defendant's attempt to elicit

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statements made by the defendant and victim's mother to the

detective.

The defendant argues that this statement constituted

evidence of the victim's motive to lie, because it showed a

conflict between the victim's mother and the defendant over the

use of the grandmother's money. Because the Commonwealth

successfully moved to exclude this evidence, the defendant

argues, it was improper for the Commonwealth to then argue in

closing that there was no evidence that the victim had a motive

to lie.

Notably, the Commonwealth did not seek to exclude

admissible evidence regarding the possible financial motive to

lie. Rather, the Commonwealth's pretrial motion and the

prosecutor's objection at trial explicitly sought to exclude a

statement allegedly made by the victim's mother to the

defendant, as relayed by the defendant to the detective, as

inadmissible hearsay evidence. This line of questioning was

therefore properly restricted by the judge. See Commonwealth v.

Markvart, 437 Mass. 331, 335 (2002) ("hearsay not otherwise

admissible under the rules of evidence is inadmissible at the

trial . . . unless specifically made admissible by statute);

Mass. G. Evid. § 802 (2024) (same).

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However, the defendant argues that because the Commonwealth

successfully excluded evidence regarding the victim's possible

motive to lie, it was impermissible for the Commonwealth to then

rely on that lack of evidence during its closing argument. See

Commonwealth v. Harris, 443 Mass. 714, 732 (2005) ("Counsel may

not, in closing, 'exploit[] the absence of evidence that had

been excluded at his request'"). We disagree that any such

exploitation occurred. The Commonwealth did not argue (knowing

it to be untrue) that the defendant had not suggested any motive

for the victim to lie. Instead, the Commonwealth argued that a

separate motive the defendant did argue to the jury was

implausible.2 As noted above, even if the judge had allowed the

Commonwealth's motion to exclude the defendant's statements

regarding the financial dispute between him and the victim's

mother, the defendant could have pursued this theory by calling

the witness to testify at trial, thus avoiding the hearsay

2 The prosecutor's objected-to statements included the
following:

"And this is a good place to talk about [the victim's]
motive. What motive is there to lie? If these allegations
aren't true, then what on earth could be her motivation for
making up these disgusting facts?

"Well, the defense told you what her motive was, right, in
his opening statement, that [the victim] wanted to go on a
fun vacation to New Hampshire. You remember that, right?
I mean really?"

6
objection. Instead, defense counsel notified the judge of his

decision not to call the victim's mother to testify. There is

no indication this decision represented anything other than a

strategic choice, and there was no suggestion the mother was

either unwilling or unavailable to testify. The defendant also

refrained from questioning the victim about any financial

dispute between her mother and the defendant.

The Commonwealth is permitted to argue that a witness has

no motive to lie where the defendant has attacked the witness's

credibility. Commonwealth v. Shanley, 455 Mass. 752, 777

(2010). This was the case here, where defense counsel, in his

opening statement, ascribed the victim's motive to lie as being

upset she had to stay at her grandmother's house while her

parents vacationed in New Hampshire. Counsel then argued the

victim was not a credible witness in his closing argument. The

prosecutor's responsive argument concerning the victim's lack of

motive was grounded in the evidence admitted at trial, and

represented a fair response to the closing argument made by the

defendant's counsel. See Commonwealth v. Benoit, 452 Mass. 212,

229 (2008).

2. Reference to struck testimony. The Commonwealth called

the defendant's cousin to recount her observations of the victim

on one occasion when the victim was visiting her grandmother's

7
house. The cousin testified that while she was studying the

bible with the victim's grandmother, she saw the victim exit the

defendant's bedroom and pass by her to go to the bathroom. When

she exited the bathroom, the victim again walked past the

cousin. The cousin testified that the victim did not respond to

her greetings and also failed to make eye contact with her. The

cousin described the victim as appearing distracted and

"detached." This behavior was unusual to the cousin when

compared to her previous interactions with the victim. When the

cousin testified she left the grandmother's house soon

thereafter because she felt "uncomfortable," the defendant

objected to this characterization. The judge sustained the

defendant's objection, and struck the cousin's response that she

was "uncomfortable."

In her closing, the prosecutor referenced the cousin's

testimony, arguing that "there was something about that

interaction that made her decide to end her bible study early."

On appeal, the defendant argues that the Commonwealth

impermissibly referenced evidence that was struck from the

record. However, the Commonwealth did not reference the portion

of the cousin's testimony that was struck, which was her

"discomfort" after witnessing the victim's behavior. Rather, we

construe the argument as asking the jury to make a reasonable

8
inference that the cousin decided to leave the house early

because of the unusual manner in which the victim had presented.

This line of argument did not constitute error. See

Commonwealth v. Samia, 492 Mass. 135, 156 (2023) ("counsel may

argue the evidence and the fair inferences which can be drawn

from the evidence" [citation omitted]).

Even if the prosecutor's remark had been predicated on the

struck testimony, no prejudice resulted from the error

considering the judge's instructions to the jury. Notably, the

judge instructed the jury before opening statements, before

closing arguments, and after closing arguments that closing

arguments are not evidence. The judge also instructed the jury

multiple times that the jury's function is to determine the

facts of the case, a role that includes assessing credibility,

resolving any discrepancies in the evidence, and drawing

reasonable inferences from facts proven to them. Considering

the judge's thorough instructions as to the jury's role, we

conclude they were not meaningfully influenced by any attempt on

the prosecutor's part to reference the cousin's struck testimony

about her discomfort.

3. Burden shifting. The defendant claims that the

following statements made by the prosecutor misstated the

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standard of proof and shifted the burden of proof onto the

defendant:

"[I]t's your job . . . to determine what evidence you think
is credible, throw out what you don't find credible, and
see what you have left, and ask yourself, is there any
reasonable explanation for the evidence you've heard other
than guilt.

"[W]hen you take this evidence as a whole, it points
clearly to guilt. There's no other reasonable explanation
for all of the evidence that you've heard, except that [the
defendant] is guilty."

We are not persuaded. Determining the credibility of the

evidence is solely within the jury's province. Commonwealth v.

Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and

460 Mass. 12 (2011). It was proper for the prosecutor to ask

the jury to evaluate the evidence as a whole before basing their

verdict on credible evidence, especially when considering the

defendant asked the jury to dismiss the Commonwealth's evidence

as unbelievable. See Commonwealth v. Platt, 440 Mass. 396, 401

(2003) ("If the evidence lends itself to several conflicting

interpretations, it is the province of the jury to resolve the

discrepancy and 'determine where the truth lies'" [citation

omitted]). Moreover, we are confident the jury understood their

role in determining what evidence was credible. As mentioned,

the judge advised the jury of their role as fact finder numerous

times.

10
The defendant also argues that the Commonwealth improperly

shifted the burden of proof onto him because it suggested to the

jury that he had some burden of offering a "reasonable

explanation" for the evidence aside from his guilt. We

disagree.

A closing argument "must be viewed 'in the context of the

entire argument, and in light of the judge's instruction to the

jury, and the evidence at trial'" (citation omitted).

Commonwealth v. Barbosa, 477 Mass. 658, 670 (2017). "[A]

prosecutor may properly 'emphasize the strong points of the

Commonwealth's case and the weaknesses of the defendant's case,'

even if he or she may thereby 'prompt some collateral or passing

reflection' on the fact that the defendant has not produced

certain evidence" (citation omitted). Commonwealth v. Grier,

490 Mass. 455, 473 (2022). Here the prosecutor's contested

statements, by their explicit terms and taken in the context of

the entire closing argument, permissibly conveyed the point that

the weight of the credible evidence pointed toward guilt, not

that the defendant had to prove his innocence. Cf. id. at 472-

473 (prosecutor's statement that "[t]here isn't a shred of

evidence" as to defendant's third-party culprit defense was

permissible comment as to strength of Commonwealth's case and

weakness of defendant's).

11
Even if we were to assume arguendo that the prosecutor's

comments crossed the line by shifting the burden to the

defendant, any such error was cured by the judge's instructions.

In his final instructions to the jury, the judge stated three

times that the burden of proof is always on the Commonwealth.

The judge instructed the jury to that effect in his opening

charge as well. The judge also instructed the jury multiple

times that the defendant is presumed innocent and therefore does

not need to prove his innocence. Finally, the judge repeatedly

instructed the jury that it was the Commonwealth's burden to

prove the defendant's guilt beyond a reasonable doubt. We

presume the jury followed the judge's instructions. See

Commonwealth v. Williams, 450 Mass. 645, 651 (2008).

4. Misstatements concerning defendant's interview. During

the initial police investigation into the victim's allegations

of sexual abuse, a detective interviewed the defendant. At

trial, the detective testified that when he confronted the

defendant with an allegation that the victim was "molested" by a

relative who lived with her, the defendant responded that he was

not the only man who lived at the grandmother's house. The

defendant then identified the victim's brother as residing in

the grandmother's home as well. Although the defendant also

expressly denied having committed any sexual abuse against the

12
victim during this interview, the defendant's denial was not

introduced in evidence during the trial.

The victim's brother testified at trial that he lived at

the grandmother's house in 2004 during the time period when the

police investigation happened. However, the brother denied

being at the grandmother's house on any occasion when the victim

slept over. In addition, the victim testified that while her

brother sometimes lived at their grandmother's house, he was

never present when the victim was abused.

In her closing argument, the prosecutor argued to the jury

that the defendant had lied to the police when he told the

officer that the victim's brother also lived at the

grandmother's house, in order to shift suspicion onto the

brother. The prosecutor also stated that the defendant had not

denied his guilt when interviewed by the police officer. The

judge sustained the defendant's contemporaneous objections to

these statements.

On appeal, the defendant argues that the Commonwealth's

arguments constituted error and prejudiced the defendant by

conveying to the jury that the defendant had lied about the

victim's brother living with the grandmother, and further, by

incorrectly stating that the defendant had not denied having

sexually abused the victim.

13
Although we agree that the Commonwealth committed error by

misstating the evidence on both accounts, these misstatements

were not of the degree to influence the jury when viewed in

light of the evidence that the brother did in fact live at the

grandmother's house, the weight of the evidence against the

defendant, and the judge's instructions. See Commonwealth v.

Imbert, 479 Mass. 575, 587 (2018) (no prejudice when error was

mitigated by judge's instructions and evidence weighed in favor

of conviction). First, the jury heard the victim and her

brother testify that he lived at the grandmother's house during

the time she was abused. However, the victim unequivocally

identified the defendant, not her brother, as the individual who

forced her to engage in vaginal and oral intercourse on multiple

occasions over a span of about five years.

Furthermore, the judge mitigated the prejudice from the

prosecutor's inaccurate statements by sustaining the defendant's

contemporaneous objection to the statements and by instructing

the jury multiple times that closing arguments are not evidence.

As referenced above, the judge also clearly instructed the jury

that it was their function to determine the facts.3 "We presume,

3 In his final charge, the judge instructed the jury that
"[y]ou are the sole and exclusive judges of the facts. You
alone determine what evidence to accept, how important any
evidence is that you do accept, and what conclusions to draw
from all the evidence."

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as we must, that the jury follow the judge's instructions and

understand the argumentative, not factual, nature of closing

arguments." Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237

(2013).

The judge also provided an adequate remedy for the

prosecutor's error in suggesting that the defendant had not

denied his guilt to the police. At sidebar immediately

following the judge's final instructions, and in response to the

defendant's objection, the Commonwealth proposed a stipulation

to correct its error. The defendant agreed that at a minimum

the jury should be informed of the stipulation but argued that a

mistrial was proper given the potentially prejudicial effect of

the statement. Before the judge excused the jury to consider

their verdict, the judge instructed them to the following:

"Ladies and gentlemen, if you remember during the
instructions, I mentioned about stipulations, how you can -
- how to treat those as evidence that the parties have
agreed to. And you'd probably say, well, we didn't have a
stipulation. Well, we have a stipulation. Okay? And this
will be reduced to writing and sent to you. You're not to
hold it against either party or speculate why it's coming
in now. It's coming in now as evidence. All right? And
this is evidence that you can consider.

"And the stipulation is that the parties stipulate to the
following: That the defendant, Albert Tremblay, denied
ever touching [the victim] during his 2004 police
interview. All right? And that's going to be reduced to
writing. You'll have that with you along with the other
exhibits."

15
This instruction and stipulation prevented the prosecutor's

misstatement from influencing the jury. The jury did not have

to decide whether the defendant denied touching the victim

during the police interview because they were instructed it was

agreed-on evidence that the defendant had done so. Considering

the judge's instructions as well as the entire trial record, we

conclude the prosecutor's two errors did not influence the jury.

See Kater, 432 Mass. at 424 ("curative instruction specifically

and appropriately eliminated any prejudice that might have been

caused by the prosecutor's comment"). Contrast Commonwealth v.

Niemic, 483 Mass. 571, 596-597 (2019) (new trial warranted where

judge's general and curative instructions could not mitigate

prosecutor's numerous improper arguments including misstating

evidence, arguing impermissible personal opinion, arguing

rebuttal testimony as substantive evidence, and playing to jury

sympathy).

On appeal, the defendant also argues that this remedy was

improper and constituted structural error because the

stipulation was given after the close of all evidence and after

closing arguments. We disagree.

A structural error in trial is one that affects "certain

basic, constitutional guarantees that should define the

framework of any criminal trial." Weaver v. Massachusetts, 582

16
U.S. 286, 295 (2017). On the contrary, as the Commonwealth

argues, the judge in this case reopened the evidence before jury

deliberations in order to protect the defendant and ensure that

the prosecutor's misstatement of the evidence during closing

argument would not prejudice the defendant. As such, this is

not a question of structural error, but one of abuse of

discretion by the trial judge. See Jones v. Vappi & Co., 28

Mass. App. Ct. 77, 82 (1989) ("Whether to admit additional

evidence after a party has rested lies within the sound

discretion of the trial judge"). While stipulations "shall be

placed on the record before the close of evidence," Mass. R.

Crim. P. 23 (b), 471 Mass. 1501 (2015), it is nevertheless

within the trial judge's discretion to reopen the evidence.

Commonwealth v. Agiasottelis, 336 Mass. 12, 15 (1957), and cases

cited. Though the stipulation in this case was entered after

both closing arguments, such a distinction is of little

consequence, especially where the need for the stipulation did

not arise before the closings and the jury had not been yet

dismissed for deliberations. See Commonwealth v. Ortiz, 466

Mass. 475, 484 (2013) ("we cannot identify any prejudice to the

defendant arising from the fact that the stipulation itself was

explained to the jury during the judge's final instructions and

not placed before them during the evidence phase of the trial").

17
The judge did not abuse his discretion in providing the

stipulation to the jury after the close of evidence. Instead,

the judge properly exercised his discretion to correct an error

while also protecting the defendant's right to receive a fair

trial.

Judgments affirmed.

By the Court (Milkey, Sacks &
Smyth, JJ.4),

Clerk

Entered: August 23, 2024.

4 The panelists are listed in order of seniority.

18