Opinion
13-P-998
06-16-2015
COMMONWEALTH v. JEFFERY C. BENGER.
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 defendant appeals from a jury conviction on charges of rape of a child with force (one count), indecent assault and battery on a child under fourteen (three counts), and dissemination of obscene matter to a minor (three counts). He argues that it was error for the judge to deny his motion seeking psychiatric records, and to seat three jurors after each had conveyed some uncertainty about his or her ability to be impartial. The defendant also claims that, during closing argument, the prosecutor improperly shifted the burden of proof, appealing improperly to the jury's emotions. We affirm.
Dwyer motion. The Commonwealth initially sought to offer the testimony of Dr. Robert Shuman as a first complaint witness for the first victim. Shuman was treating her for mental health issues and, during the treatment, he administered a test to determine if she was bipolar. During the test, Shuman asked her: "Is there anybody that you are afraid of?" The victim responded, "Yes, Jeff Benger." Thereafter, the victim told Shuman some of the details of what had happened to her.
At trial, neither Shuman nor any other first complaint witness was called to corroborate the testimony of the first victim.
Before the trial, the defendant filed a motion for records pursuant to Mass.R.Crim.P. 17(a)(2), 378 Mass. 886 (1979). See Commonwealth v. Dwyer, 448 Mass. 122 (2006). He sought "medical/therapy/counseling records of Dr. Robert Shuman," asserting that Dr. Shuman was "the recipient of [the first victim's] first complaint of alleged sexual abuse." He also contended that "there is a strong likelihood" that "relevant and exculpatory evidence exists in these records."
In his supporting affidavit, the defendant argued that therapy continued after the disclosure, and "additional notes regarding the allegations simply must exist;" he argued further that, "[g]iven the circumstances of the making of the allegations to Dr. Shuman, it is inconceivable that the allegation simply came out of thin air. Additionally, as mentioned above, surely there was continued conversation of these allegations as time transpired."
"Rule 17(a)(2) is not a discovery tool." Commonwealth v. Dwyer, 448 Mass. 122, 145 (2006). Its purpose is to "guard against intimidation, harassment, and fishing expeditions for possibly relevant information." Ibid. Specifically, the rule requires that "the party moving to subpoena documents to be produced before trial must establish good cause, satisfied by a showing '(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition."'" Commonwealth v. Lampron, 441 Mass. 265, 269 (2004), quoting from United States v. Nixon, 418 U.S. 683, 699-700 (1974).
"Here, the essence of the defendant's request was that the relevance of the documents might generate information undermining the victim's credibility" (emphasis added). Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 589 (2013). The representations in his affidavit are speculative and based on nothing other than a conjecture that notes other than the one produced by the Commonwealth likely exist. In addition, it is not clear from this record whether counseling sessions between the first victim and Dr. Shuman even continued after the disclosure. For these reasons, we are satisfied that the judge's denial of the defendant's "requested order of production under rule 17(a)(2) constituted neither an error of law nor an abuse of discretion." Ibid. See Commonwealth v. Lampron, 441 Mass. at 269. Cf. Martin v. Commonwealth, 451 Mass. 113, 121-122 (2008).
The Commonwealth did provide to the defendant a one-page photocopy of the doctor's notes from the time of the disclosure.
Empanelment. The defendant also argues that he did not receive a fair trial because three seated jurors were not impartial. He contends that, after each prospective juror initially expressed uncertainty as to his or her impartiality, the judge then "coerced" the jurors "into promising that they could be impartial" rather than disqualifying them from serving. We are not persuaded.
Significantly, in the end, the defendant did not challenge any of the three jurors he now claims should have been excused. His claims as to each of them are therefore waived.,, See Commonwealth v. McCoy, 456 Mass. 838, 842 (2010). In addition, at the conclusion of the empanelment process, the defendant had used only six of his fourteen peremptory challenges. He did challenge one juror for cause and that challenge was allowed without further discussion.
During the voir dire of juror 7, the juror initially stated, "If I heard the kids' take on the situation, I don't think I could be a fair juror." Defense counsel told the judge that he would object unless there was further inquiry. After consulting with counsel, the judge asked the juror, "[D]o you think that you could be a fair and impartial juror or do you think that the defendant here, who is accused only, would be at a disadvantage if you were on the jury?" The juror answered that she thought she could be impartial and she didn't think the defendant would be at a disadvantage. Thereafter, the defendant did not object to her sitting.
After answering all of the initial voir dire questions in the negative, prospective juror 9 pondered his ability to be impartial based on the number of allegations pending against the defendant. After the judge explained further the deliberating process when multiple offenses are charged, juror 9 had no doubt that he possessed the ability to "judge each and every one of the allegations separately." The defendant did not object to seating him.
After initial hesitation, juror 12 confirmed to the judge that, despite having three small children of her own, she could thoughtfully consider the evidence, and make a decision based on the evidence and not on any emotion; she had no concerns as to her ability to be fair to the defendant. The defendant did not challenge this juror for cause.
"The scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous." Ibid., quoting from Commonwealth v. Lopes, 440 Mass. 731, 736 (2004). We see neither error nor an abuse of discretion.
Closing argument. Finally, the defendant argues that, in her closing argument, the prosecutor played on the jury's emotions to shift the burden of proof. Specifically, the prosecutor argued, "[I]f this doesn't feel right to you -- if you look at all the evidence and it's not right to you, you have the opportunity to do what [the victims] never had to do. You have the opportunity to stand up and say something and that's exactly what I'm going to ask you to do. I'm going to ask you to stand up and find the defendant guilty on all nine indictments."
The defendant objected after the argument, contending that the prosecutor had told the jury that the burden of proof was "whether or not this feels right to them." In his final instructions, the judge specifically charged the jury "to confine your deliberations to the evidence and nothing but the evidence. It would be improper for you to allow any feelings you might have about the nature of the crime to interfere with your decision." The judge also instructed clearly and thoroughly on burden of proof and proof beyond a reasonable doubt. The defendant did not object to any part of the judge's charge or request any further instructions.
Because the defendant objected to the remark about what "feels right," we review for prejudicial error. See Commonwealth v. Misquina, 82 Mass. App. Ct. 204, 206 (2012). In so doing, we consider "the remarks in the context of the entire argument, the testimony, and the judge's instruction to the jury." Commonwealth v. Hrabak, 440 Mass. 650, 654 (2004). Considering the argument as a whole, it appears that the prosecutor repeatedly used the phrase "[d]oes that feel right?" along with, and as a restatement of, the question, "[d]oes that make sense?" The latter is unexceptionable; the former is unfortunate, because, by itself, it might be considered, as the defendant argues, an appeal to sympathy and feelings rather than to reason. However, coupled, as it was here, consistently with the appeal to "sense," we are satisfied that the phrase "did not influence the jury, or had but very slight effect." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). In addition, we presume the jury followed the judge's instructions with regard to the burden of proof and the irrelevance of emotion. See Commonwealth v. Andrade, 468 Mass. 543, 549 (2014).
For the first time on appeal, the defendant also objects to the part of the prosecutor's closing that told the jury to "stand up and say something." The defendant did not object to that expression at trial; consequently, we review to determine whether it created a substantial risk of a miscarriage of justice. We agree that telling the jury to "stand up and say something" was error. Cf. Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 808-809 (2009). However, the phrase was preceded by a request to "look at all the evidence" and, in context, we cannot say that this error "standing alone . . . create[d] a substantial risk of a miscarriage of justice, which is the standard we apply when, as here, the error[] [is] unpreserved." Commonwealth v. Burts, 68 Mass. App. Ct. 684, 689 (2007). See also Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 235 (2013).
Judgments affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: June 16, 2015.