Opinion
13-P-795
04-17-2015
COMMONWEALTH v. LARRY MORTON (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants were each convicted of one count of the lesser included offense of rape after a jury trial. The victim was gang raped at defendant Benjamin Archambeault's (Archambeault) apartment. On appeal, defendant Archambeault argues (1) evidence that his deoxyribonucleic acid (DNA) was on the victim's breast should have been excluded as irrelevant or, in the alternative, as more prejudicial than probative, (2) the judge erred in excluding, under the rape shield statute, evidence that the victim had been seen socializing with and kissing another man at a bar earlier in the evening, (3) it was error, under the doctrine of verbal completeness, to prevent the defendant from introducing an exculpatory statement made by Archambeault, (4) the judge erred in failing to declare a mistrial after a key witness changed his testimony mid-trial, (5) the prosecutor's closing was improper, and (6) the defendant's confrontation right was violated when the Commonwealth's DNA expert relied on testing performed by a nontestifying analyst. Defendant Larry Morton joins in arguments 2, 3, 4, and 5. We affirm.
Morton was indicted on four counts of aggravated rape and one count of indecent assault and battery. Benjamin Archambeault was indicted on three counts of aggravated rape. An additional defendant, Abraham Archambeault, was also indicted, but acquitted of the charges against him.
1. DNA evidence. Archambeault argues that evidence that his DNA was found on the victim's left breast had no probative value because there was no testimony that his mouth came into contact with her breast. In the alternative, he argues that if the evidence had some probative value, its probativeness was outweighed by its prejudice. "A judge generally is accorded substantial discretion in deciding whether evidence is relevant, and if so, whether it nevertheless should be excluded as less probative than prejudicial." Commonwealth v. Mattei, 455 Mass. 840, 850 (2010). "In this respect DNA test results are generally no different from other evidence, and a judge's decision to admit or exclude the evidence will be accorded substantial deference." Ibid.
Archambeault's defense was that he had not been present when the victim was raped. For this reason alone the judge could properly determine that the presence of Archambeault's DNA on the victim's body, let alone on an intimate area of her body, was highly relevant. Moreover, the victim testified that Archambeault orally raped her and restrained her while she was raped by Morton and Abraham Archambeault. She testified that Archambeault "was feeling [her] breast," but could not remember if he, or the other defendants, had put his mouth on her breast. She did not testify that there was no mouth-to-breast contact. Under these circumstances, the jury were free to draw an inference that Archambeault's saliva came into contact with her breast when he committed the oral rape. Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ("The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable"). The jury were free to choose this inference over the defendant's theory, which was that his DNA was transferred to the victim's breast via his sheets or towels. See Commonwealth v. Evans, 469 Mass. 834, 842 (2014), quoting from Commonwealth v. Woods, 466 Mass. 707, 712-713, cert. denied, 134 S. Ct. 2855 (2014) ("Where conflicting inferences are possible from the evidence, it is for the jury to determine where the truth lies") (citations omitted). The fact that there were differing possible inferences to be drawn did not make the evidence irrelevant.
Defense counsel for Archambeault thoroughly cross-examined the Massachusetts State police crime lab chemist, Tina Gryszowka, on this possibility.
Finally, although it is true, as Archambeault contends, that "the mere fact that the characteristics of certain alleles of a defendant's DNA matches the characteristics of alleles of DNA found at a crime scene says almost nothing about the likelihood that the defendant was present at the crime scene unless the jury learn from an expert about the nature of the DNA profile used," Commonwealth v. Barbosa, 457 Mass. 773, 789 (2010), cert. denied, 131 S. Ct. 2441 (2011), that principle has no application here because the Commonwealth presented such expert testimony.
2. Rape shield. Both defendants argue that the judge abused his discretion by foreclosing cross-examination into the victim's interactions with a patron at a bar earlier in the evening of the rape. We discern no error. "Evidence of the reputation of a victim's sexual conduct shall not be admissible in any investigation or proceeding before . . . any court of the commonwealth for a violation of section[] . . . twenty-two . . . of chapter two hundred and sixty-five." G. L. c. 233, § 21B, as appearing in St. 1983, c. 367. Specific instances of the victim's sexual conduct are not admissible "except evidence of the victim's sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim . . . ." Section 21B, supra, inserted by St. 1977, c. 110. In addition, "where specific instances of an alleged victim's sexual conduct are relevant to show bias or a motive to lie, the evidence may be admissible even where § 21B governs." Commonwealth v. Parent, 465 Mass. 395, 405 (2013). See Mass. G. Evid. § 412(b)(3) (2014) (exception where exclusion of evidence would violate defendant's constitutional rights).
The statute also "requires 'a written motion for admission of [evidence of specific acts] and an offer of proof' before evidence of a complainant's sexual conduct can be admitted." Commonwealth v. Pearce, 427 Mass. 642, 648 (1998), quoting from G. L. c. 233, § 21B. No offer of proof was made here.
The defendants argue that evidence of the victim's flirtatious conduct with another man was relevant to the presence of an unidentified DNA profile on her left breast, which did not match any of the defendants' profiles. Even if the third party were the source of the unidentified DNA, a wholly speculative contention, that fact would have no bearing on whether the defendants raped the victim. No argument has been made (nor would the evidence provide any basis for it) that a third party was the rapist. Instead, the defense was that Archambeault was not in the room when Morton had consensual anal sex with her. Contrast Commonwealth v. Cardoza, 29 Mass. App. Ct. 645, 648-649 (1990) ("The defendant did not seek to introduce the evidence to show the complainant's sexual behavior. He sought to introduce it to show that another, not he, attacked the victim").
"A defendant's constitutional right to put forth his full defense outweighs the interests underlying the rape-shield statute . . . only if he shows 'that the theory under which he proceeds is based on more than vague hope or mere speculation[.]' . . . [H]e may not 'engage in an unbounded and freewheeling cross-examination in which the jury are invited to indulge in conjecture and supposition.'" Commonwealth v. Thevenin, 33 Mass. App. Ct. 588, 592-593 (1992), quoting from Commonwealth v. Chretien, 383 Mass. 123, 138 (1981).
The defendants next argue that the evidence was relevant to their theory that the victim fabricated the rape in order to prevent her ex-boyfriend from learning that she had had consensual sex with Morton. Like the trial judge, we see no logical connection between the proposed evidence and the victim's motive to lie. Moreover, the nature of the victim's relationship with her ex-boyfriend was extensively explored and fully set forth for the jury to consider as the central basis for the defense that the victim fabricated the rapes. For this reason, Commonwealth v. Kowalski, 33 Mass. App. Ct. 49, 52 (1992), upon which the defendants rely, is easily distinguishable.
3. Verbal completeness. Relying on the doctrine of verbal completeness, the defendants argue that they should not have been precluded from eliciting testimony that Archambeault told Linda Schettino that the victim went into the bedroom with Morton voluntarily. "Under the doctrine of verbal completeness, '[w]hen a party introduces a portion of a statement or writing in evidence,' a judge has the discretion to 'allow[] admission of other relevant portions of the same statement or writing which serve to "clarify the context" of the admitted portion.'" Commonwealth v. Aviles, 461 Mass. 60, 75 (2011), quoting from Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). "To be admitted, 'the additional portions of the statement must be (1) on the same subject as the admitted statement; (2) part of the same conversation as the admitted statement; and (3) necessary to the understanding of the admitted statement.'" Commonwealth v. Aviles, supra, quoting from Commonwealth v. Eugene, 438 Mass. 343, 350-351 (2003).
It is clear from the record that Schettino's testimony before the grand jury (which included the statement the defendants wished to elicit at trial) concerned a conversation she had had with Archambeault directly. By contrast, at trial, Schettino did not remember speaking with Archambeault directly, and recalled only a telephone conversation she had with her son during which she overheard Archambeault in the background. Because these statements were not part of the same conversation, the judge correctly determined that the doctrine of verbal completeness did not apply.
4. Mistrial after changed testimony. Arnold John Archambeault (John), defendant Archambeault's second cousin, dramatically changed his testimony, to the defendants' detriment, while on the stand. The defendants argue that the judge should have declared a mistrial as a result.
"Whether to declare a mistrial is in that large category of decisions of a trial judge involving the application of sound discretion." Commonwealth v. Clements, 36 Mass. App. Ct. 205, 213 (1994). "A judge is to consider carefully the alternatives to a mistrial." Ibid. "When undisclosed evidence surfaces at trial, unless it is virtually destructive of the defendant's case or strongly supportive of innocence, the preferred course of action is [the] provision of additional time for investigative efforts, rather than declaration of a mistrial." Commonwealth v. McGann, 20 Mass. App. Ct. 59, 66 (1985).
Here, after voir dire, the judge concluded that, both despite and as a result of John's changed testimony, there was ample material for effective cross-examination of him. The judge asked the defense attorneys if they would like more time to prepare for cross-examination; Morton decided to proceed with cross-examination the following day, and Archambeault asked for additional time until the day after. Both requests were allowed, and the defendants sought no other relief. The judge did not abuse his discretion by offering more time to prepare for cross-examination instead of declaring a mistrial. Commonwealth v. McGann, supra at 66. This is particularly true where the judge concluded after voir dire that the witness's change in testimony was not the fault of the Commonwealth, but simply the witness's decision, after searching his conscience, to "come clean."
The defendants concede it "may have been appropriate to let the trial proceed" if John had simply "corrected" his testimony, but argue that it was "grossly unfair" to permit John to testify that he originally testified falsely due to pressure from the defendants. However, "[i]t is well established that evidence regarding threats or intimidation of key witnesses for the prosecution is admissible to demonstrate consciousness of guilt." Commonwealth v. Scanlon, 412 Mass. 664, 676 (1992).
5. Closing. Prosecutors may "argue forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Carriere, 470 Mass. 1, 19 (2014) (citations omitted). "Remarks made during closing arguments are considered in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Ibid. "A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed[,]" particularly when a jury returns a split verdict, as occurred here. Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). A split verdict suggests "they in part rejected the position of each side." Ibid.
The prosecutor's reference to there being no manual for how victims should act in the aftermath of a rape was made in response to the defendants' argument concerning her delay in reporting the rape to the police. In response to the defense that the victim's behavior leading up to the rape, including her drinking, suggested she had consented, the prosecutor was allowed to analogize to college students who are raped after drinking too much, although such an analogy should be approached with caution. The prosecutor's use of the term "predatory" was fair in light of the evidence concerning how heavily intoxicated the victim was when Morton followed her into the bedroom. However, the prosecutor's reference to the six hours the victim spent at the hospital after the rape, "four of them in a medical exam, doing the frog position, having her hairs plucked, her body and her intimate parts scraped and swabbed" went too far. That said, viewed in the context of the closing as a whole, the instructions given by the judge, and the strength of the evidence, we discern no substantial risk of a miscarriage of justice flowing from it.
Neither defendant objected to this comment. Only counsel for the codefendant who is not implicated in this appeal, objected.
6. Expert testimony. Archambeault acknowledges that his confrontation clause argument concerning the testifying expert's reliance on certain tests performed by another analyst is controlled by Commonwealth v. Greineder, 464 Mass. 580, 603 (2013) ("Expert opinion testimony, even that which relies for its basis on the DNA test results of a nontestifying analyst not admitted in evidence, does not violate a criminal defendant's right to confront witnesses against him under either the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights"). We agree.
For these reasons, we affirm.
Judgments affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 17, 2015.