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-683
COMMONWEALTH
vs.
RODNEY LAVENTURE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The appellant was convicted of a single count of assault
and battery in violation of G. L. c. 265, § 13A (a). He now
appeals, claiming that errors in the prosecutor's closing
require a new trial.
Facts. In reviewing the evidence, we view it in the light
most favorable to the Commonwealth. Commonwealth v. Colas, 486
Mass. 831, 833 (2021). It was undisputed at trial that after
working earlier in the day, the victim left work, stopped at a
liquor store, and purchased four "nip"-sized bottles of vodka.
He drank one in his truck on the way home and three more when he
got home. After returning home, the victim went for a walk. While
the victim was out walking, the defendant dropped a friend off
at the house immediately across the street from the victim. The
defendant also lived on the victim's street.
The victim saw the defendant's car and believed he
recognized it as a car from which the driver had routinely been
throwing trash from a fast-food restaurant onto the street. The
victim had previously had to contend with the trash when waiting
at the bus stop down the street, had been bothered by it, and
sometimes had picked it up and thrown it away himself.
The victim, who was intoxicated, decided to confront the
driver of the car, that is, the defendant. He went over to the
car and confronted the defendant about the trash. According to
the victim's testimony, at one point the victim said, "fuck
you," to a young woman in the back seat of the car.
Shortly thereafter, Officer James McKenna found the victim
lying in the road. He was propped up on one arm and was
sufficiently conscious to provide biographical information to
the police. An ambulance took the victim to the hospital.
At the scene, the victim told Officer McKenna he could not
remember what happened. Shortly thereafter, another responding
officer, Officer Edge, who Officer McKenna had told to look for
a cream-colored Infiniti sedan, noticed the defendant stop
2 nearby in a white BMW. Officer Edge asked the defendant if he
had been involved in the incident or knew what had happened, and
the defendant told him, "I hit that guy."
At the hospital, the victim was examined by hospital
personnel. The medical records stated that he was being seen
for a "head injury" and described the cause as "assault on his
own property," but noted that he was "confused" and "did not
recall events." Another record from the hospital stated that
"patient was walking to go into his house when a car pulled up
and struck him several times on the back of the head and face."
Although when he was lying on the ground at the scene the
victim said he could not remember what happened, Officer McKenna
testified that he spoke to the victim again at the hospital.
According to Officer McKenna, he told the victim what he had
learned from witnesses at the scene, and the victim agreed with
the account of events the officer provided. The victim,
however, testified that he did not recall speaking to the police
at the hospital. About six days later, after having seen a copy
of the police report, the victim told Officer McKenna that he
had a clearer recollection of what had happened. He told
Officer McKenna he had confronted the defendant about the trash
left in the road and said "fuck you" to one of the passengers,
which prompted the defendant to get out of the car. He stated
3 that he remembered being struck at least once in the face,
falling to the ground, and saw another person attempting to pull
the defendant away from the victim.
At trial, the victim testified that after he said "fuck
you" to the young woman, the defendant got out of the car and
hit him. The victim fell to the ground, and he saw a passenger
holding the defendant back. He stated that the defendant and
his companions were laughing and drove away. During cross-
examination, he testified that he remembered everything until he
was punched, at which point he thought he lost consciousness.
During closing argument, defense counsel suggested that
there were credibility issues given that the victim initially
said he didn't remember anything, then said he fell down after
he got punched, and then said he had been hit multiple times,
and given that the victim had been intoxicated at the time. He
argued that the jury just could not know what happened, and that
the defendant's statement, "I hit that guy," was ambiguous in
that it might have meant he accidently hit him with his car
while pulling away.
In his closing, the prosecutor attempted to rehabilitate
the victim's credibility. He noted that the victim said he
could not remember what happened, but that there was evidence
that he had a concussion, that he incorrectly told the medical
4 personnel that he was assaulted on his own property, but that
this was a minor detail, and that this was all consistent with
him having been punched by the defendant and hitting his head on
the pavement. He argued that the victim's story on the stand
was the same as the one he had told the police officer
subsequent to leaving the hospital. The prosecutor did say,
"They want to say he's not a very credible witness because he's an alcoholic, because he has a drinking problem, because he's angry at the defendant, it's up to you to accept [sic] the credibility of each witness, decide who you believe. In my opinion, Joseph was very open and honest with you today. Open with all of us today."
He also said,
"Maybe he was yelling at them. Maybe he shouldn't have done that. But he's not hiding anything from you. He admitted everything that he did wrong on this day. He knows he's not perfect. He knows he wasn't acting perfectly that day. But he wants you to know everything that happened on this day. I think that you would find his testimony very credible. He told you everything he could remember . . . ."
Discussion. We do not agree with the defendant that all of
these statements amounted to vouching. But we do think the
sentence in which the prosecutor gave his opinion of the
victim's credibility and the sentence in which he said that the
victim was "not hiding anything from you" require further
discussion. Defense counsel objected to these two statements
5 and to the statement, "I think that you would find his testimony
credible."1
As to the first statement, "In my opinion, Joseph was very
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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
23-P-683
COMMONWEALTH
vs.
RODNEY LAVENTURE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The appellant was convicted of a single count of assault
and battery in violation of G. L. c. 265, § 13A (a). He now
appeals, claiming that errors in the prosecutor's closing
require a new trial.
Facts. In reviewing the evidence, we view it in the light
most favorable to the Commonwealth. Commonwealth v. Colas, 486
Mass. 831, 833 (2021). It was undisputed at trial that after
working earlier in the day, the victim left work, stopped at a
liquor store, and purchased four "nip"-sized bottles of vodka.
He drank one in his truck on the way home and three more when he
got home. After returning home, the victim went for a walk. While
the victim was out walking, the defendant dropped a friend off
at the house immediately across the street from the victim. The
defendant also lived on the victim's street.
The victim saw the defendant's car and believed he
recognized it as a car from which the driver had routinely been
throwing trash from a fast-food restaurant onto the street. The
victim had previously had to contend with the trash when waiting
at the bus stop down the street, had been bothered by it, and
sometimes had picked it up and thrown it away himself.
The victim, who was intoxicated, decided to confront the
driver of the car, that is, the defendant. He went over to the
car and confronted the defendant about the trash. According to
the victim's testimony, at one point the victim said, "fuck
you," to a young woman in the back seat of the car.
Shortly thereafter, Officer James McKenna found the victim
lying in the road. He was propped up on one arm and was
sufficiently conscious to provide biographical information to
the police. An ambulance took the victim to the hospital.
At the scene, the victim told Officer McKenna he could not
remember what happened. Shortly thereafter, another responding
officer, Officer Edge, who Officer McKenna had told to look for
a cream-colored Infiniti sedan, noticed the defendant stop
2 nearby in a white BMW. Officer Edge asked the defendant if he
had been involved in the incident or knew what had happened, and
the defendant told him, "I hit that guy."
At the hospital, the victim was examined by hospital
personnel. The medical records stated that he was being seen
for a "head injury" and described the cause as "assault on his
own property," but noted that he was "confused" and "did not
recall events." Another record from the hospital stated that
"patient was walking to go into his house when a car pulled up
and struck him several times on the back of the head and face."
Although when he was lying on the ground at the scene the
victim said he could not remember what happened, Officer McKenna
testified that he spoke to the victim again at the hospital.
According to Officer McKenna, he told the victim what he had
learned from witnesses at the scene, and the victim agreed with
the account of events the officer provided. The victim,
however, testified that he did not recall speaking to the police
at the hospital. About six days later, after having seen a copy
of the police report, the victim told Officer McKenna that he
had a clearer recollection of what had happened. He told
Officer McKenna he had confronted the defendant about the trash
left in the road and said "fuck you" to one of the passengers,
which prompted the defendant to get out of the car. He stated
3 that he remembered being struck at least once in the face,
falling to the ground, and saw another person attempting to pull
the defendant away from the victim.
At trial, the victim testified that after he said "fuck
you" to the young woman, the defendant got out of the car and
hit him. The victim fell to the ground, and he saw a passenger
holding the defendant back. He stated that the defendant and
his companions were laughing and drove away. During cross-
examination, he testified that he remembered everything until he
was punched, at which point he thought he lost consciousness.
During closing argument, defense counsel suggested that
there were credibility issues given that the victim initially
said he didn't remember anything, then said he fell down after
he got punched, and then said he had been hit multiple times,
and given that the victim had been intoxicated at the time. He
argued that the jury just could not know what happened, and that
the defendant's statement, "I hit that guy," was ambiguous in
that it might have meant he accidently hit him with his car
while pulling away.
In his closing, the prosecutor attempted to rehabilitate
the victim's credibility. He noted that the victim said he
could not remember what happened, but that there was evidence
that he had a concussion, that he incorrectly told the medical
4 personnel that he was assaulted on his own property, but that
this was a minor detail, and that this was all consistent with
him having been punched by the defendant and hitting his head on
the pavement. He argued that the victim's story on the stand
was the same as the one he had told the police officer
subsequent to leaving the hospital. The prosecutor did say,
"They want to say he's not a very credible witness because he's an alcoholic, because he has a drinking problem, because he's angry at the defendant, it's up to you to accept [sic] the credibility of each witness, decide who you believe. In my opinion, Joseph was very open and honest with you today. Open with all of us today."
He also said,
"Maybe he was yelling at them. Maybe he shouldn't have done that. But he's not hiding anything from you. He admitted everything that he did wrong on this day. He knows he's not perfect. He knows he wasn't acting perfectly that day. But he wants you to know everything that happened on this day. I think that you would find his testimony very credible. He told you everything he could remember . . . ."
Discussion. We do not agree with the defendant that all of
these statements amounted to vouching. But we do think the
sentence in which the prosecutor gave his opinion of the
victim's credibility and the sentence in which he said that the
victim was "not hiding anything from you" require further
discussion. Defense counsel objected to these two statements
5 and to the statement, "I think that you would find his testimony
credible."1
As to the first statement, "In my opinion, Joseph was very
open and honest with you today. Open with all of us today," the
prosecutor should not have stated his personal opinion about the
honesty of the witness. This sentence amounts to improper
vouching. "Improper vouching can occur if an attorney expresses
a personal belief in the credibility of a witness, or indicates
that he or she has knowledge independent of the evidence before
the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).
The second statement, "he's not hiding anything from you,"
is a bit more ambiguous, coming as it did between some
statements about admissions the victim made of his own bad
behavior, and a sentence immediately following the quoted
language, "He admitted everything that he did wrong on this
day." It is arguably a statement drawing a reasonable inference
from the evidence. However, because of the way in which it was
phrased -- the prosecutor did not, for example, state that he
Defense counsel asked for a curative instruction, which 1
the judge denied. The jury instructions did not include the often-given instruction that closing argument is not evidence. Rather, the only instruction about opening and closing argument was "[t]he opening statements and closing arguments of the lawyers are not a substitute for the evidence." Although of course accurate, and while perhaps containing the implication that closing arguments are not evidence, there could have been a clearer statement of the law.
6 "suggested" that the victim was hiding nothing -- it may
reasonably have been read to suggest that, based on something
outside the evidence, the prosecutor knew that the witness was
not hiding anything. We will therefore assume, without
deciding, that this was improper vouching as well.
Finally, the third sentence, "I think that you would find
his testimony very credible," is not actually vouching. While
poorly phrased, it seems that it is a statement that the
prosecutor thinks that the evidence is such that it should be
persuasive to the jury.
But even were we to assume that all three of the identified
sentences amounted to vouching, we do not think the defendant
would prevail. The closing was objected to, so we are reviewing
for prejudicial error, see Commonwealth v. Robinson, 493 Mass.
303, 317 (2024), but we do not think, even reading the closing
as the defendant does, that prejudice has been shown. This is
because there was evidence that, as even defendant's counsel
agreed, the defendant had confessed to the police that he hit
the victim.
Although in his own closing, defense counsel suggested that
perhaps this meant an accidental touching of the victim by the
defendant's car, and even though the victim himself seems to
have thought he was hit by a car initially, the medical
7 evidence, aside from the victim's report of events to his
providers, supports no such thing. The medical records state
that aside from his head injury, the victim had no "other
complaints of pain." The victim described having a swollen face
and a bump on the back of his head. Given the strength of the
evidence against the defendant apart from these three statements
in closing, we cannot properly say that any error was
prejudicial.2
Judgment affirmed.
By the Court (Rubin, Hand & Smyth, JJ.3),
Clerk
Entered: November 26, 2025.
2 The defendant also asserts in his brief that the prosecutor improperly "mischaracterized admitted medical evidence and stated a medical diagnosis not in evidence," in his closing statement, but we do not think he has demonstrated that asserting memory loss is consistent with a head injury and concussion amounts to either.
3 The panelists are listed in order of seniority.