COMMONWEALTH vs. ROBERT L. ACHORN.

WARNER, J. After a jury trial, the defendant was convicted of indecent assault and battery on a child under the age of fourteen and on so much of an indictment for rape of a child as charged assault with intent to rape. On appeal, the defendant, with new counsel, challenges portions of the prosecutor's closing argument and claims that he received ineffective assistance of trial counsel.

1. Prosecutorial misconduct, No objection was made to the prosecutor's closing argument, and so our review is confined to a determination whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978).

The Commonwealth's case rested principally on the testimony of the victim, the defendant's daughter, who was five years old at the time of trial. The victim testified to several instances of sexual abuse which occurred during visitations with the defendant at a time when the victim was about four and one-half years old. There was also fresh complaint testimony of the defendant's separated wife, the mother of the victim, and of a physician. The latter was unable to say whether there had been penetration.

The defendant denied having sexually abused the victim. He also offered the testimony of two witnesses to show lack of opportunity. In his testimony, the defendant suggested that the charges were fabricated, at the prompting of his wife, because of a divorce and potential custody dispute between them.

The task for the jury on the case as presented to them essentially was to resolve questions of the credibility of the victim and of the defendant. The defendant argues that the prosecutor exceeded the bounds of proper argument by suggesting that a

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five year old girl (the victim) is incapable of lying about sexual abuse. In particular, the defendant complains about those isolated portions of the prosecutor's argument which are set out in the margin and which are italicized. [Note 1]

The defendant first contends that it was improper for the prosecutor to comment on the victim's credibility without an evidentiary foundation as to the truth-telling proclivity of children in sexual abuse cases. That foundation, he says, could only come from expert testimony. The fatal flaw in this argument is that such testimony would not have been admissible. See Commonwealth v. Ianello, 401 Mass. 197, 199-203 (1987).

The defendant next argues that the prosecutor's remarks suggested that the jury could infer the truth of the victim's accusations from the fact that they were made, i.e., that a young child does not make such accusations unless they are true. See Commonwealth v. Fuller, 22 Mass. App. Ct. 152, 158 (1986), S.C., 399 Mass. 678 (1987). "In analyzing whether an [allegedly]

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improper remark is prejudicial or presents a risk of a miscarriage of justice, the remark must be considered in the context of the prosecutor's entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial." Commonwealth v. Fitzgerald, 376 Mass. at 416.

We look first to the prosecutor's argument as a whole. The prosecutor began by telling the jury that closing arguments were not evidence. She then announced the theme of her argument: that the jury's function was to determine who had told the truth and, in so doing, they should bring to bear their common sense. Such an evocation was entirely proper. [Note 2] See Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565, 574 (1983), and cases cited. When read in the setting the prosecutor established and in the context of her factually based argument on the victim's demeanor while a witness, the circumstances in which she testified, the manner in which she testified and the content of her testimony, the challenged remarks appear as proper rhetorical questions which were complemented by others throughout the argument. See Commonwealth v. Fitzgerald, 376 Mass. at 421. The prosecutor did not vouch for the credibility of the victim; she stressed the role of the jury as assessors of credibility. "It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved." Commonwealth v. Kozec, 399 Mass. 514, 521 (1987). Viewing the argument as a whole, we find no substantial risk of a miscarriage of justice.

Even if the prosecutor could be said to have sailed too close to the wind, the judge's forceful and specific instructions rendered any error harmless. See Commonwealth v. Shelley, 374 Mass. 466, 470-471 (1978); Commonwealth v. Bourgeois, 391 Mass. 869, 884-885 (1984); Commonwealth v. Kozec, supra at 518. At the outset of trial, immediately before the closing arguments and in his final instructions, the judge told the jury that arguments of counsel did not constitute evidence. In his

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final instructions, the judge advised the jury that they were the "sole judges of credibility" and that it was their responsibility to resolve conflicts in the evidence. He offered a list of considerations in determining credibility:

"the conduct and demeanor of the witness while testifying, the frankness or lack of frankness while testifying, the reasonableness or unreasonableness of the testimony, the probability or improbability of the testimony, the opportunity or lack of opportunity of the witness to see and to know facts concerning which he or she is testifying to, and the accuracy of the witness's recollection and the degree of intelligence shown by the witness."

The judge then suggested that the jury could consider a witness's motive for testifying, interest in the outcome of the case, character, appearance and bias. Then the judge gave a focused instruction (set out in full in the margin [Note 3]) on the determination of the victim's credibility.

Finally, it is apparent that the jury were discriminating in their assessment of the credibility of the victim. While they returned a guilty verdict on the indictment charging indecent assault and battery, they found the defendant guilty on the rape indictment only on the lesser included offense of assault with intent to rape. See Commonwealth v. Kozec, supra at 517.

We comment briefly on other complaints about the prosecutor's argument. The prosecutor's misstatement of her questioning of a defense witness in terms of whether the witness told the victim that the former was going to testify "against" the

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victim and "for her Daddy" was harmless in the circumstances. The characterizations of this witness as "some friend" and "perhaps a misdirected young lady, a young girl who is confused as to where her alliance should be," were fair comments on the evidence. Indeed, the prosecutor exercised restraint in her discussion of the relationship of the witness and the defendant. The defendant's argument that the prosecutor exploited the absence of evidence she had succeeded in excluding, see Commonwealth v. Haraldstad, 16 Mass. App. Ct. at 568, -- that the defendant's wife knew this witness would testify -- is without merit. Nothing in the defendant's offer of proof on the subject indicated that either the wife or the victim knew that the witness would testify at trial.

2. Ineffective assistance of counsel. In reviewing a claim of ineffective assistance of counsel, we look to see whether there has been "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and if this conduct has "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

(a) What we have already said disposes of the claim with respect to defense counsel's failure to object to the prosecutor's closing argument.

(b) There was no error in the admission of the fresh complaint testimony of the mother of the victim and of the examining physician. The approximately five-month period between the last incident of alleged abuse and the victim's complaint was reasonable in light of the victim's age (four and one-half years old at the time of the incidents), her relationship to the defendant, the evidence of her fear of the defendant and that the defendant told her to keep the incidents a "secret." See Commonwealth v. Comtois, 399 Mass. 668, 672 n.9 (1987); Commonwealth v. Brenner, 18 Mass. App. Ct. 930, 931-932 (1984). The judge gave clear and correct instructions on the use of such evidence for corroboration only, both when the evidence was received and in his final charge. In the latter instructions, the judge made clear that the jury could reject the

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testimony if they found that the complaints were not made with reasonable promptness. In his closing argument, the defendant's counsel stressed the victim's delay in making any complaint in urging the jury's rejection of the victim's account. In these circumstances, there was not ineffective assistance of trial counsel in the failure to object to the admission of the fresh complaint testimony at the hearing on the Commonwealth's motion in limine or at trial. Counsel are not required to make an objection which has no reasonable likelihood of success. See Commonwealth v. Boutwell, 21 Mass. App. Ct. 201, 209 (1985). We cannot say "that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

(c) The defendant contends that trial counsel was ineffective in acquiescing in the exclusion of a note in the victim's medical record that "[the victim] expressed considerable concern . . . over having witnessed her father striking her mother." The mother testified to the incident. A defense witness testified in more specific terms to the child's unwillingness to be with the defendant because of it. Defendant's counsel had successfully opposed the introduction of two pages of fresh complaint material in the hospital record within which the disputed note appeared. The judge indicated that admissibility of the two pages was an all or nothing proposition. We cannot say that counsel's agreement to the exclusion of the note was ineffective representation for the reason, if no other, that his action appears to have been a tactical judgment which was not "manifestly unreasonable." [Note 4] Commonwealth v. Drayton, 386 Mass. 39, 41 (1982). Commonwealth v. McMaster, 21 Mass. App. Ct. 722, 734 (1986).

(d) Any misjudgment by defense counsel in suggesting that the judge instruct the jury that prior testimony of the mother before a grand jury could be considered for substantive purposes was harmless. (As to the admissibility of such testimony for substantive purposes, see Commonwealth v. Daye, 393 Mass. 55, 65-75 [1984].)

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The judge instructed the jury that they could consider the prior grand jury testimony for substantive and impeachment purposes. In cross-examination of the mother, defense counsel probed briefly her grand jury testimony in an attempt to establish that she had not there testified to complaints prior to August of 1984 by the victim about vaginal irritation. In so doing, he brought out that the mother had testified that in August of 1984 by the child had made an initial complaint attributing redness in her vaginal area to conduct of the defendant. At trial, the mother testified to the same event but also to the victim's immediate recantation of the accusation against the defendant; the mother did not pursue the complaint. Defense counsel's effort to establish inconsistencies in testimony were largely unsuccessful. There was graphic substantive and corroborative evidence of sexual abuse. Again, on our review of the entire record, we cannot say "that better work [on the issue of the proper use of grand jury testimony] might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. at 115.

Judgments affirmed.