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-726

COMMONWEALTH

vs.

CHRISTOPHER GALLAGHER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Christopher Gallagher, appeals from his 

convictions, after a jury trial in the District Court, of two 

counts of indecent assault and battery on a child, G. L. c. 265, 

§ 13B. Concluding that a comment in the prosecutor's closing 

argument, though error, did not prejudice the defendant in light 

of its tangential matter and the trial judge's curative 

instructions, we affirm.

1. Standard of review. We review statements made during a 

prosecutor's closing argument "in the context of the entire 

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

and the evidence at trial." Commonwealth v. Sanders, 101 Mass. 

App. Ct. 503, 511 (2022), quoting Commonwealth v. Braley, 449 
2

Mass. 316, 328 (2007). "Because the defendant objected to the 

argument at trial, we review for prejudicial error." 

Commonwealth v. Andrade, 468 Mass. 543, 551 (2014).1 "This means 

that we inquire[ ] whether there is a reasonable possibility 

that the error might have contributed to the jury's verdict." 

Commonwealth v. Souza, 492 Mass. 615, 627 (2023), quoting 

Commonwealth v. Wolfe, 478 Mass. 142, 150 (2017). Relevant 

factors include "whether the judge's instructions mitigated the 

error . . . whether the errors in the arguments went to the 

heart of the issues at trial or concerned collateral matters 

. . . whether the jury would be able to sort out the excessive 

claims made by the prosecutor . . . and whether the 

Commonwealth's case was so overwhelming that the errors did not 

prejudice the defendant." Commonwealth v. Teixeira, 486 Mass. 

617, 635 (2021), quoting Commonwealth v. Niemic, 472 Mass. 665, 

673-674 (2015). "An error is not prejudicial if it 'did not 

influence the jury, or had but slight effect.'" Commonwealth v. 

Santana, 101 Mass. App. Ct. 690, 694 (2022), quoting 

Commonwealth v. Misquina, 82 Mass. App. Ct. 204, 207 (2012).

2. Closing argument. "A prosecutor must limit comment in 

closing statement to the evidence and fair inferences that can 

1 As we did in Commonwealth v. Grinkley, 75 Mass. App. Ct. 

798, 807 & n.17, 811 (2009), we reject the argument that error 

in a prosecutor's closing argument constitutes structural error.
3

be drawn from the evidence." Commonwealth v. Lugo, 89 Mass. 

App. Ct. 229, 234 (2016), quoting Commonwealth v. Cole, 473 

Mass. 317, 333 (2015). "Because the line separating speculation 

and inference is often a fine one, 'we must and do recognize 

that closing argument is identified as argument.'" Commonwealth

v. Mattei, 90 Mass. App. Ct. 577, 582 (2016), quoting 

Commonwealth v. Bresilla, 470 Mass. 422, 437-438 (2015). 

"Prosecutors may not, however, appeal to the jury's sympathy." 

Commonwealth v. Martinez, 476 Mass. 186, 199 (2017). "In 

particular, the 'jury should not be asked to put themselves "in 

the shoes" of the victim, or otherwise be asked to identify with 

the victim.'" Commonwealth v. Witkowski, 487 Mass. 675, 684 

(2021), quoting Commonwealth v. Rutherford, 476 Mass. 639, 646

(2017).

During his closing argument, the defendant argued that the 

female victim and her friend, both of whom had testified as

Commonwealth witnesses, were unreliable because their initial

out-of-court accounts of the female victim's first complaint2 had 

omitted a certain detail found in their trial testimony, 

specifically that the female victim and her friend had gone to

2 In the context of sexual assault, the first complaint is 

the victim's first report of the assault to another. See Mass. 

G. Evid. § 413 (2024).
4

Wendy's, a fast food restaurant, before the first complaint had 

occurred. In response, the prosecutor argued,

"Well, the first time that [the female victim] ever told 

anybody -- anyone in authority about this case do you think 

her primary focus was on the fact that they went to Wendy's 

first.

"It's an inconsequential fact that we're trying to make 

mountains out of.

"I'd ask for you to use your common sense. If that 

happened to you when somebody asked you for the very first 

time talk [sic] about arguably what may have been the worst 

day of your life."

The defendant immediately objected, and the prosecutor agreed to 

rephrase the offending statement.

Although "[t]he prosecutor was entitled to offer a response 

to defense counsel's closing argument," Mattei, 90 Mass. App. 

Ct. at 583, quoting Bresilla, 470 Mass. at 438, the response 

here was poorly worded in that it asked the jurors to "put 

themselves 'in the shoes' of the victim," Witkowski, 487 Mass. 

at 684, quoting Rutherford, 476 Mass. at 646. Prosecutors 

generally may not ask jurors to place themselves in the victim's 

shoes because "a 'focus on the victim distracts attention from 

the actual issues, and invites the jury to decide guilt or 

innocence on the basis of sympathy.'" Witkowski, supra at 685,

quoting Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011). 

See Rutherford, supra (improper to ask jurors to imagine murder

victim's last thoughts as he "crawl[ed] away to die");
5

Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 808-809 (2009)

(improper to ask jurors to "[t]hink about what it must have been 

like" for sexual assault victims). "[T]his type of rhetoric 

must be used with caution." Witkowski, supra. Accordingly, to 

the extent jurors could have construed the argument as an 

invitation to ponder the victim's suffering from a sexual 

assault, it was error for the prosecutor to ask the jurors to 

consider "[i]f that happened to [them]."

Nevertheless, the prosecutor's request was not prejudicial. 

Although the female victim's credibility about the assault was 

central to the case, see Teixeira, 486 Mass. at 635, whether the

witnesses' earlier statements included where the female victim 

and her friend visited during the female victim's first 

complaint was a relatively minor point of corroboration. As 

such, unlike other "in the shoes" arguments, the prosecutor's 

request did not significantly "distract[ ] attention from the 

actual issues" or "invite[ ] the jury to decide guilt or 

innocence on the basis of sympathy." Witkowski, 487 Mass. at 

685, quoting Bizanowicz, 459 Mass. at 420.

Moreover, the problematic portion of the argument was of 

minor importance to the prosecutor's argument as a whole and 

occupied only three of its 432 lines. The meat of the argument 

on this point was to ask the jury to "use [their] common sense" 

in deciding whether these earlier omissions affected the 
6

witnesses' credibility. See Lugo, 89 Mass. App. Ct. at 234. 

Cf. Commonwealth v. Harris, 11 Mass. App. Ct. 165, 176 & n.9, 

177 (1981) (prosecutor's request that jury "[t]hink of what 

[rape victim] went through by giving this story" and not "let 

her down" by failing to convict error but did not create 

substantial risk of miscarriage of justice). "[T]he jury would 

be able to sort out" any impermissible appeal to sympathy from 

the prosecutor's underlying argument. Teixeira, 486 Mass. at 

635, quoting Niemic, 472 Mass. at 673.

Furthermore, before the jurors resumed deliberations the 

day after the parties' closing arguments, the trial judge

provided the jury with instructions requested by the defendant 

to mitigate the potential prejudicial effect of the prosecutor's 

request, including that "the closing arguments of the lawyers 

are not a substitute for the evidence" and "[y]ou may not permit 

sympathy to affect your verdicts." "The jury are presumed to 

follow the judge's instructions." Andrade, 468 Mass. at 549. 

Given the improper argument's low potential for prejudice, the

supplemental instructions sufficed to correct the error and 

ensure that it would have "but slight effect" on the jury. 
7

Santana, 101 Mass. App. Ct. at 694, quoting Misquina, 82 Mass. 

App. Ct. at 207.3

Judgments affirmed.

By the Court (Ditkoff, 

Singh & Hodgens, JJ.4),

Clerk

Entered: August 27, 2024.

3 It follows from the lack of prejudice that the trial judge 

acted within her discretion in denying the defendant's motion 

for a mistrial. See Martinez, 476 Mass. at 197.

4 The panelists are listed in order of seniority.