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
24-P-753
COMMONWEALTH
vs.
HUSSEIN ZAZA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of indecent
assault and battery on a person aged fourteen or older after he
rejected a plea disposition suggested by the judge. On appeal,
the defendant argues that the judge violated his constitutional
right to a fair trial by presiding over the jury trial after
"attempting to orchestrate a plea agreement." He also claims
that the prosecutor improperly appealed to juror sympathy. We
affirm.
Background. The Commonwealth presented the following
evidence. The defendant owned a car dealership in Rehoboth.
The victim, who was in her mid-thirties, purchased two cars from
the defendant, one in 2019 and the other in 2020. After buying the second car, the victim returned to the dealership seeking a
spare key. The defendant brought the victim into the
dealership's garage, where he hugged her. The victim understood
the hug as a sign of gratitude for buying a car from the
defendant, so she hugged back. The defendant then began to
grope the victim's buttocks and breasts, lifted her bra, and put
his mouth on her breast. The defendant also tried to put the
victim's hand down his pants, and she felt his erect penis with
her hand over his clothing. The victim pushed the defendant
away and walked to her car. The defendant followed and rubbed
the victim's legs and thighs near her vagina as she sat in her
car. The victim shut the car door, drove away, and telephoned
her mother to tell her what had happened. The victim's mother
testified that the victim sounded "extremely upset" on the
phone, which made the mother "very concerned with [the victim's]
demeanor." She testified that when she saw the victim a short
time later, the victim was still "extremely upset." After
speaking to her mother, the victim drove with her father to the
Rehoboth police station. Within minutes of her arrival, and not
more than ninety minutes after she left the defendant's
dealership, the victim gave a statement to a Rehoboth police
officer. The officer testified that, when he first saw the
victim, "she appeared to be upset . . . [s]niffling, anxious."
2 The defendant testified that he was married, had three
children, suffered from erectile dysfunction, and had simply
hugged the victim after both car sales.
Discussion. 1. The judge's participation in plea
discussions. The defendant contends that the judge's
participation in plea discussions resulted in bias, which
deprived the defendant of a fair trial. Because the defendant
did not object to the judge's role in plea negotiations or seek
his recusal from the trial, we review for a substantial risk of
miscarriage of justice. Commonwealth v. Eddington, 71 Mass.
App. Ct. 138, 142 (2008).
In support of his contention that the judge improperly
participated in plea negotiations, the defendant cites the
applicable caselaw, all of which is from the late twentieth
century. See, e.g., Commonwealth v. Hogan, 426 Mass. 424, 430
(1998); Commonwealth v. Gordon, 410 Mass. 498, 501 n.3 (1991).
We need not address the proper parameters of a judge's
involvement in plea discussions or the evolution of the role of
the trial judge in criminal case management over the past three
decades because we conclude in this case that the defendant has
failed to show that the judge displayed any partiality in his
conduct of the trial.1
1 We recognize that judicial involvement in pleas is a daily reality and an integral part of case management in busy trial
3 The defendant asserts that the judge's "vindictiveness"
toward him can be inferred from the sentence imposed after trial
compared to the disposition offered for a plea. It is error for
a judge to punish a defendant for exercising the right to trial
and the verdict of a jury. Commonwealth v. Johnson, 27 Mass.
App. Ct. 746, 750-752 (1989). However, "[t]hat a defendant
receives a stiffer sentence than was offered does not, by
itself, betoken vindictiveness." Id. at 750. "After all, a
plea bargain regularly implies a lenient sentence."
Commonwealth v. Ford, 35 Mass. App. Ct. 752, 758 (1994).
Prior to empanelment, the judge stated that, if a jury
convicted the defendant, "he's going to jail." After further
discussion with the attorneys and the victim, the judge stated
he was "inclined to impose a probation of three years" if the
court sessions. Nevertheless, we note our concern about comments made by the judge in this case during plea proceedings, where he (1) tied his stated desire to avoid incarcerating the defendant to the defendant's immigration status; (2) promised the defendant that he would not have to register as a sex offender upon a plea, despite such a decision requiring a hearing, see Commonwealth v. Ventura, 465 Mass. 202, 209 (2013); (3) commented to the victim about her "courage to come forward"; (4) told the victim that the incident was an "outrageous event"; (5) told the victim he was "trying to get some justice for [her] and [her] family"; (6) personalized the incident by stating to the victim, "I can't walk in your shoes. Nothing like this has ever happened to me, you know. I have a family, too"; and (7) discussed the defendant's age, criminal history, obligation to register as a sex offender, and immigration status with the victim in an apparent effort to convince her to agree to the proposed disposition of probation.
4 defendant pleaded guilty. After the defendant elected to go to
trial and the jury found the defendant guilty, the judge imposed
a sentence of two years in the house of correction, one year to
be served and the balance suspended for three years with the
probationary condition that the defendant have no contact with
the victim.
The defendant's sentence was "not harsh in terms of what
the statute[] permitted."2 Johnson, 27 Mass. App. Ct. at 751.
Nor did it exceed the Commonwealth's recommendation. See Ford,
35 Mass. App. Ct. at 758. It is also noteworthy that the
judge's efforts to resolve the case by way of a plea and short
of incarceration were couched in concerns he expressed about the
defendant's age (fifty-nine years old), lack of prior criminal
convictions, and immigration status. The defendant does not
point to anything in the record that suggests the judge's
"displeasure" with the defendant's refusal of the plea offer.
See id. Indeed, when trial counsel responded to the judge's
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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
24-P-753
COMMONWEALTH
vs.
HUSSEIN ZAZA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of indecent
assault and battery on a person aged fourteen or older after he
rejected a plea disposition suggested by the judge. On appeal,
the defendant argues that the judge violated his constitutional
right to a fair trial by presiding over the jury trial after
"attempting to orchestrate a plea agreement." He also claims
that the prosecutor improperly appealed to juror sympathy. We
affirm.
Background. The Commonwealth presented the following
evidence. The defendant owned a car dealership in Rehoboth.
The victim, who was in her mid-thirties, purchased two cars from
the defendant, one in 2019 and the other in 2020. After buying the second car, the victim returned to the dealership seeking a
spare key. The defendant brought the victim into the
dealership's garage, where he hugged her. The victim understood
the hug as a sign of gratitude for buying a car from the
defendant, so she hugged back. The defendant then began to
grope the victim's buttocks and breasts, lifted her bra, and put
his mouth on her breast. The defendant also tried to put the
victim's hand down his pants, and she felt his erect penis with
her hand over his clothing. The victim pushed the defendant
away and walked to her car. The defendant followed and rubbed
the victim's legs and thighs near her vagina as she sat in her
car. The victim shut the car door, drove away, and telephoned
her mother to tell her what had happened. The victim's mother
testified that the victim sounded "extremely upset" on the
phone, which made the mother "very concerned with [the victim's]
demeanor." She testified that when she saw the victim a short
time later, the victim was still "extremely upset." After
speaking to her mother, the victim drove with her father to the
Rehoboth police station. Within minutes of her arrival, and not
more than ninety minutes after she left the defendant's
dealership, the victim gave a statement to a Rehoboth police
officer. The officer testified that, when he first saw the
victim, "she appeared to be upset . . . [s]niffling, anxious."
2 The defendant testified that he was married, had three
children, suffered from erectile dysfunction, and had simply
hugged the victim after both car sales.
Discussion. 1. The judge's participation in plea
discussions. The defendant contends that the judge's
participation in plea discussions resulted in bias, which
deprived the defendant of a fair trial. Because the defendant
did not object to the judge's role in plea negotiations or seek
his recusal from the trial, we review for a substantial risk of
miscarriage of justice. Commonwealth v. Eddington, 71 Mass.
App. Ct. 138, 142 (2008).
In support of his contention that the judge improperly
participated in plea negotiations, the defendant cites the
applicable caselaw, all of which is from the late twentieth
century. See, e.g., Commonwealth v. Hogan, 426 Mass. 424, 430
(1998); Commonwealth v. Gordon, 410 Mass. 498, 501 n.3 (1991).
We need not address the proper parameters of a judge's
involvement in plea discussions or the evolution of the role of
the trial judge in criminal case management over the past three
decades because we conclude in this case that the defendant has
failed to show that the judge displayed any partiality in his
conduct of the trial.1
1 We recognize that judicial involvement in pleas is a daily reality and an integral part of case management in busy trial
3 The defendant asserts that the judge's "vindictiveness"
toward him can be inferred from the sentence imposed after trial
compared to the disposition offered for a plea. It is error for
a judge to punish a defendant for exercising the right to trial
and the verdict of a jury. Commonwealth v. Johnson, 27 Mass.
App. Ct. 746, 750-752 (1989). However, "[t]hat a defendant
receives a stiffer sentence than was offered does not, by
itself, betoken vindictiveness." Id. at 750. "After all, a
plea bargain regularly implies a lenient sentence."
Commonwealth v. Ford, 35 Mass. App. Ct. 752, 758 (1994).
Prior to empanelment, the judge stated that, if a jury
convicted the defendant, "he's going to jail." After further
discussion with the attorneys and the victim, the judge stated
he was "inclined to impose a probation of three years" if the
court sessions. Nevertheless, we note our concern about comments made by the judge in this case during plea proceedings, where he (1) tied his stated desire to avoid incarcerating the defendant to the defendant's immigration status; (2) promised the defendant that he would not have to register as a sex offender upon a plea, despite such a decision requiring a hearing, see Commonwealth v. Ventura, 465 Mass. 202, 209 (2013); (3) commented to the victim about her "courage to come forward"; (4) told the victim that the incident was an "outrageous event"; (5) told the victim he was "trying to get some justice for [her] and [her] family"; (6) personalized the incident by stating to the victim, "I can't walk in your shoes. Nothing like this has ever happened to me, you know. I have a family, too"; and (7) discussed the defendant's age, criminal history, obligation to register as a sex offender, and immigration status with the victim in an apparent effort to convince her to agree to the proposed disposition of probation.
4 defendant pleaded guilty. After the defendant elected to go to
trial and the jury found the defendant guilty, the judge imposed
a sentence of two years in the house of correction, one year to
be served and the balance suspended for three years with the
probationary condition that the defendant have no contact with
the victim.
The defendant's sentence was "not harsh in terms of what
the statute[] permitted."2 Johnson, 27 Mass. App. Ct. at 751.
Nor did it exceed the Commonwealth's recommendation. See Ford,
35 Mass. App. Ct. at 758. It is also noteworthy that the
judge's efforts to resolve the case by way of a plea and short
of incarceration were couched in concerns he expressed about the
defendant's age (fifty-nine years old), lack of prior criminal
convictions, and immigration status. The defendant does not
point to anything in the record that suggests the judge's
"displeasure" with the defendant's refusal of the plea offer.
See id. Indeed, when trial counsel responded to the judge's
dispositional offer by saying, "Let's impanel," the judge simply
stated, "Okay," and proceeded to address motions in limine.
Ultimately, we do not think the disparity between the plea offer
2 In relevant part, G. L. c. 265, § 13H, states, "Whoever commits an indecent assault and battery . . . shall be punished . . . by imprisonment for not more than two and one-half years in a jail or house of correction."
5 and postverdict sentence was so great that it established a
reasonable likelihood that the judge was "vindictive" toward the
defendant and therefore was biased in his conduct of the trial.
See Johnson, supra at 750-752.
The defendant also posits a nebulous claim that the judge
demonstrated his bias when, "in subtle ways, the judge in this
case put his thumb on the scale." In support of this assertion,
the defendant points only to two questions the judge asked
during defense counsel's cross examination of a police witness.
The judge's questions simply clarified the date the officer was
trained to preserve evidence for further testing; those
questions did not convey to the jury that the judge believed the
defendant was guilty or demonstrate bias against the defendant.
See Commonwealth v. Jiminez, 22 Mass. App. Ct. 286, 291-293
(1986) (no error in judge's clarifying questions to police
witnesses). Moreover, any potential issue was alleviated when
the judge instructed the jury, "You should not consider anything
I’ve said or done during the trial . . . [or] in questions to
the witnesses . . . as any indication of my opinion as to how
you should decide the defendant’s guilt or innocence." See id.
After a careful review of the trial record, we discern no
evidence of bias in the judge's rulings or conduct toward the
defendant. We thus conclude that there was no substantial risk
of a miscarriage of justice and the defendant was not deprived
6 of a fair trial based on the judge's participation in plea
discussions.
2. Appealing to the jurors' emotions. The defendant also
argues that reversal of his conviction is required because the
prosecutor appealed to the sympathy of jurors. The defendant
asserts that it was improper for the prosecutor to elicit
testimony from the victim's mother and a police officer that the
victim appeared upset, and for the mother to testify that it
"was upsetting to [her] . . . as a mother to listen to [the
victim]." He also contends that it was improper for the
prosecutor to "focus on the consequences of the alleged abuse"
during closing argument. Because the defendant did not object
at trial to the challenged testimony3 or to the prosecutor's
closing, we review this claim for a substantial risk of a
miscarriage of justice. Commonwealth v. Brum, 492 Mass. 581,
600-601 (2023).
"Evidence of a victim's state of mind or behavior following
a crime has long been admissible if relevant to a contested
issue in a case." Commonwealth v. Arana, 453 Mass. 214, 225
(2009). Demeanor evidence is of particular importance where, as
3 The defendant objected to the portion of the mother's answer, "I could tell that something --," but did not object to her testimony about the victim's demeanor. The judge quickly redirected the mother back to the victim's demeanor as opposed to "what she [the mother] could tell."
7 here, credibility concerning whether the offense occurred was a
central issue in the trial. See Commonwealth v. Starkweather,
79 Mass. App. Ct. 791, 800–801 (2011). The victim's mother saw
the victim minutes after the assault, and the police interview
took place no more than ninety minutes after the victim left the
defendant's dealership. We discern no error in the admission of
this testimony regarding the victim's demeanor following the
assaults.
As the Commonwealth concedes, the mother's statement
regarding her own reaction when the victim told her about the
sexual assault was not responsive to the prosecutor's question
and was improper. However, because the testimony was fleeting,
the prosecutor made no use of it during closing argument, and
the jury likely would have inferred the mother's reaction in any
event, we see no substantial risk of a miscarriage of justice
from this testimony.
Finally, we disagree with the defendant that the
prosecutor's statement during closing was improper. The
defendant argued that the victim's testimony was rehearsed,
"like she was looking for her next line, like it was a Lifetime
movie." In response, the prosecutor asked the jurors to
consider whether, during her testimony, the victim "seem[ed]
like she was happy talking about this again." In context, this
argument was not an improper appeal for the jury to sympathize
8 with the victim, but an appropriate counter to the defendant's
attack on the victim's credibility and demeanor on the witness
stand. See Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018)
(prosecutor's closing may address witness demeanor, motive for
testifying, and believability).
Judgment affirmed.
By the Court (Henry, Shin & Brennan, JJ.4),
Clerk
Entered: May 1, 2025.
4 The panelists are listed in order of seniority.