Following a jury trial in the Superior Court, the defendant was convicted of assault and battery in violation of a restraining order, G. L. c. 265, § 13A(b )(iii), of violating an abuse prevention order, G. L. c. 209A, § 7, and of threatening to commit a crime (murder), G. L. c. 275, §§ 2 and 4.2 On appeal, the defendant argues that the judge erred in admitting two photographs of the victim, and that the prosecutor engaged in improper closing argument. For the reasons that follow, we affirm.
Background. The convictions stemmed from a violent incident that occurred during the night of April 9, 2013. The victim was the defendant's girl friend. The two resided together in an apartment in Townsend with their infant son. After arguing for most of the evening, the victim retired to the bedroom with the child. At some point during the night, the defendant attacked the victim. He climbed onto her back and placed her in a choke hold. When the victim tried to escape, the defendant broke her cellular telephone and threatened to kill her and their son. Eventually, on the ruse that the baby needed a bottle, the victim took her son and fled the apartment. She went to the apartment of her landlord, who then called the police.
The defense theory, which was presented through cross-examination and argument, was that the victim fabricated the allegations because she wanted to end the relationship.
Discussion. 1. The photographs. The defendant claims that the judge abused his discretion by admitting in evidence two photographs of the victim. The photographs were premarked as exhibits by agreement, and were introduced by the Commonwealth without objection at the conclusion of the evidence.3 The photographs are not dated and were not authenticated by a witness. However, there is no dispute that the photographs are of the victim, who appears "roughed up and disheveled." Her head is scratched and bruised. The defendant contends that he was prejudiced by the photographs, essentially because the jury were permitted to assume that the photographs had been taken following the incident which lead to the defendant's arrest. That assumption, however, is not unreasonable. Indeed, even though the jury asked a question regarding the date of the photographs during deliberation, it is fairly obvious that the photographs were introduced in support of the victim's testimony. No one questioned the relevance of the photographs,4 and in the absence of any showing that the photographs did not depict the injuries the victim sustained during the altercation, we cannot say that the judge abused his discretion.
2. Closing argument. The defendant asserts that the prosecutor engaged in improper argument when he challenged the validity of the defense theory during his closing. The prosecutor argued as follows:
"[Defense counsel] just stood here and told you that everything that [the victim] sat here earlier today and told you did not happen, and it was a figment of her imagination, that she was a scorned woman, upset with how [the defendant] was taking care of the baby.
"So, to believe the defense in this case means you need to disbelieve everything that [the victim] said; that she got up here and said absolutely nothing to you but a whole bunch of lies.
"I'd submit to you that that's not the case, and that you will be able to determine that's not the case, because you saw her testify. You heard what she had to say and the manner in which she said it. Things she could remember and things she couldn't remember from something that happened over a year and half ago; wh[a]t details stuck out in her mind and what details didn't stick out in her mind[.]"
Because the defendant timely objected to the prosecutor's argument, we employ the prejudicial error standard, see Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), and "evaluate whether the defendant was prejudiced thereby, considering the remarks in the context of the entire argument, the trial testimony, and the judge's instructions to the jury." Commonwealth v. Beaudry, 445 Mass. 577, 584 (2005).
The statements were not improper. The prosecutor may properly challenge the validity of the defendant's theory of the case and may properly comment upon the credibility of a witness without crossing the boundaries of proper argument. In the course of his closing, trial counsel impugned the victim's credibility and argued to the jury that she could not be believed.5 Taken in the context of the whole argument, the prosecutor was asking the jury to assess the credibility of the victim and, in so doing, to reject the defendant's characterization of her testimony. The judge gave a limiting instruction,6 and, in light of his forceful instruction on the burden of proof,7 the argument did not diminish or shift the Commonwealth's burden.
Judgments affirmed.