Opinion
No. 12–P–98.
2013-04-25
COMMONWEALTH v. Gerald BATTISTONI.
By the Court (WOLOHOJIAN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of four counts of rape of a child in violation of G.L. c. 265, § 23.
On appeal, the defendant argues that the judge abused her discretion in admitting prior bad act testimony, and that the prosecutor made several errors in the closing argument. We affirm.
The jury acquitted the defendant of two other statutory rape counts.
Background. When the victim was around twelve or thirteen years old, her mother began dating the defendant, and he eventually moved in with them. The victim was at a particularly vulnerable point in her life, because a previous boyfriend of her mother had sexually abused her and the victim was involved in his prosecution. The defendant took advantage of that situation to befriend the victim, and ultimately to sexually abuse and rape her repeatedly over the course of at least a year.
The defendant's sexual abuse progressed from rubbing the victim's breasts and her “private areas,” to oral sex during which the defendant would masturbate. The defendant also asked the victim to urinate on him while he masturbated.
Finally, the abuse progressed to the repeated rape of the victim, which continued even after the defendant stopped dating the victim's mother when the defendant moved in with the still-young victim and her father.
In describing the circumstances of the urination, the victim testified that the defendant was “[t]ouching my private areas” with “[h]is hands and his mouth” and then asked her “[t]o piss on him.”
1. Prior bad acts. The defendant's initial argument is that the trial judge abused her discretion in allowing the victim to testify about the fact that, at his request, the victim urinated on him. Describing the urination evidence as “highly inflammatory,” the defendant argues that it was erroneously admitted and that its admission resulted in extreme prejudice. We disagree.
We need not reach the question whether the evidence was properly admitted because, in any event, we discern no prejudice. The evidence against the defendant was strong and, in the context of the weight and quality of that evidence, the evidence of urination was of minimal importance—appearing on only two pages of transcript of a multiday trial and not dwelt upon. Moreover, the jurors were immediately and forcefully instructed that the evidence could be considered only for the limited purpose of shedding light on “the relationship of these parties [and] state of mind of the parties.” “[A]ny prejudice was minimized by the judge's careful instructions to the jury that such evidence could only be used for a limited purpose. Juries are presumed to follow such limiting instructions. See Commonwealth v. Pope, 406 Mass. 581, 588, 549 N.E.2d 1120 (1990).” Commonwealth v. Johnson, 45 Mass.App.Ct. 473, 479, 700 N.E.2d 270 (1998).
Next, the defendant argues that the admission of other bad act evidence requires reversal. We are not persuaded. First, with regard to one witness's fleeting remark that she and the defendant used illegal narcotics together, even if we assume that the remark should not have been admitted, we can be fairly assured that the jury were not swayed by it. See Commonwealth v. Thomas, 429 Mass. 146, 156, 706 N.E.2d 669 (1999) (passing remark, when viewed in overall trial context, was not prejudicial). Second, the judge did not err in allowing the first complaint witness to testify that she saw the defendant slap and pinch the victim's buttocks just before the victim made her first complaint. See Commonwealth v. King, 445 Mass. 217, 246, 834 N.E.2d 1175 (2005) (first complaint witness may testify to “observations of the complainant during the complaint; the events or conversations that culminated in the complaint; the timing of the complaint; and other relevant conditions that might help a jury assess the veracity of the complainant's allegations or assess the specific defense theories as to why the complainant is making a false allegation”). Third, a witness's brief comment, that the defendant had “run ins” with someone who worked as a police officer, was not prejudicial. See Thomas, supra at 156–157, 706 N.E.2d 669.
Finally, the defendant mentions in a footnote that jurors were exposed to other bad acts through references to him being “violent,” “acting crazy,” and having a restraining order against him. As a threshold matter, the footnote does not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). And, in any event, the effect that the testimony would have had on the jury was merely cumulative of properly admitted evidence. See Commonwealth v. Carter, 423 Mass. 506, 514–515, 669 N.E.2d 203 (1996). Both the victim and her mother were cross-examined in detail about the defendant's having burned the mother's furniture, cut up her clothes, and cut up mattresses.
The remark about the defendant's “run ins” with a police officer was not necessarily a comment that the defendant had “run ins” with the law, given that the defendant and that particular police officer were also “personally acquainted.”
2. Prosecutor's closing argument. The defendant argues that the prosecutor's closing contained several errors requiring reversal of his convictions.
First, relying on Commonwealth v. Thomas, 401 Mass. 109, 514 N.E.2d 1309 (1987), the defendant argues that the prosecutor engaged in impermissible vouching when, while surveying the testimony of the Commonwealth's witnesses, he stated, “There's no conspiracy here.”
But, unlike in Thomas, the prosecutor's statement here was in direct response to the defendant's central theme in his closing, as well as his defense, that the uniformity of the Commonwealth's witnesses' testimony was a result of a common “axe to grind” and “a fiction that was concocted by Dan Malley.” The prosecutor's remark was “a fair response to an attack on the credibility of a government witness.” Commonwealth v. Shanley, 455 Mass. 752, 777, 919 N.E.2d 1254 (2010), quoting from Commonwealth v. Senior, 454 Mass. 12, 17, 906 N.E.2d 981 (2009).
In full, the prosecutor argued:
“Now, axes to grind. So, is there some gigantic conspiracy with all of these witnesses, including Dan Malley, to get Gerald Battistoni? I would suggest to you, no. No, there's no conspiracy. Joy Goguen hasn't conspired with Bronis Collier, who conspired with Jean Doel, who therefore conspired with Nicole. There's no conspiracy here.”
Second, the defendant claims that a number of comments inflamed the jury's sympathies. However, all of the comments were based on the evidence or fair inferences therefrom. See Commonwealth v. Kozec, 399 Mass. 514, 516, 505 N.E.2d 519 (1987) (“We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence”). In addition, because many of the prosecutor's remarks tended to explain the lapse of time between the incidents of sexual abuse and the victim's disclosure, the remarks were a proper rejoinder to defense counsel's argument that the late-breaking disclosure was not credible. See Commonwealth v. Lawton, 82 Mass.App.Ct. 528, 541–542, 976 N.E.2d 160 (2012).
Finally, the defendant argues that the prosecutor at times misstated the evidence. The Commonwealth concedes that the prosecutor did misstate the evidence twice, by (1) impermissibly commenting about the defendant's purpose in looking out the window during sex with the victim, and (2) saying that one witness had made a telephone call to another witness (when it was not actually clear who had called whom). However, neither misstatement “went to the heart of the [defendant's] case,” Commonwealth v. Orton, 58 Mass.App.Ct. 209, 213, 788 N.E.2d 1009 (2003), quoting from Commonwealth v. Kater, 432 Mass. 404, 422, 734 N.E.2d 1164 (2000), and the judge specifically cautioned the jury about both. These minor errors could not have made a difference in the jury's conclusions. Cf. id. at 212–214, 734 N.E.2d 1164 (even prosecutor's misstatements about police investigation that went to heart of defendant's case “in and of themselves did not amount to prejudicial error”).
The defendant also argues that the prosecutor misstated the evidence and violated the first complaint rule when summarizing the testimony of Dan Malley, the private investigator who brought the sexual abuse to light. However, the prosecutor's remarks were based on fair inferences from the evidence and did not violate the first complaint doctrine because they did not indicate that Dan Malley received information about the sexual abuse from the victim. See King, 445 Mass. at 243, 834 N.E.2d 1175 (first complaint witness is the “person who was first told of the assault” by the victim).
In sum, the prosecutor's closing argument contained only two minor misstatements. When viewed in the context of all the other evidence admitted at trial, and in light of the judge's extensive instructions (before, during, and at the close of trial), these errors were not prejudicial. See Commonwealth v. McLaughlin, 431 Mass. 506, 510–512, 729 N.E.2d 252 (2000) (even where prosecutor's remarks went to “central issue” of trial, Commonwealth's case was not overwhelming, and judge failed to instruct jury that closing argument is not evidence, remarks were not prejudicial).
Judgments affirmed.