Opinion
No. 14–P–416.
12-07-2016
COMMONWEALTH v. Odis CASSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Odis Casson, was convicted by a jury in Superior Court of indecent assault on a person age fourteen or over for touching the victim's breast with his hand. He was acquitted of three other counts of indecent assault and battery on a person age fourteen or over and one count of enticing a child. We consolidated his direct appeal with his appeal from the order denying his postjudgment motion for a new trial, or, in the alternative, reduction of the verdict, or postverdict inquiry of the jury.
The defendant makes no argument on appeal with respect to the denial of so much of the postjudgment motion as sought entry of a required finding of not guilty.
On appeal, he argues that (1) his entire videotaped police interview should have been admitted under the doctrine of verbal completeness; (2) the prosecutor's closing argument misstated facts in evidence and impermissibly bolstered the credibility of the victim; (3) he was denied effective assistance of counsel because defense counsel did not request a jury instruction on the affirmative defense of accident; and (4) the trial judge erred in denying the defendant's postjudgment motion. We affirm.
Background. At the time of the events described at trial, the victim was fourteen years old. The defendant, a neighbor and a friend of the victim's father, was fifty-eight years old. The victim and defendant agree that one day in early September, 2012, the victim spoke to the defendant. The defendant agreed to give her something—money by the victim's account and marijuana by the defendant's—and she then went to his apartment. Their accounts differ as to what happened inside the defendant's apartment.
The victim testified that once in the defendant's apartment, he asked her if she wanted to take a picture, told her how beautiful she was, and then began touching her breasts. The defendant admitted that the victim came to his apartment, that he told her that she was "really maturing," he complimented her breasts, and he gave her marijuana. The defendant stated that the victim had spontaneously exposed her breast to him and he had put his hands on her shoulders to turn her around and make her leave his apartment. The defendant agreed with a statement by the interrogating police officer that it was "a possibility" he touched the victim's breast and later said he "might have touched her breasts" when he grabbed the victim's shoulders to send her out of his apartment.
We omit further recitation of additional testimony that could have supported the charges of which the defendant was acquitted.
The police arrested the defendant on September 24, 2012; he waived his Miranda rights and agreed to be interviewed. The trial judge allowed twenty-six minutes of the approximately two-hour videotaped interview to be admitted in evidence and played for the jury.
Discussion. 1. Defendant's videotaped statement. The defendant argues that the redacted portions of the videotape should have been admitted under the doctrine of verbal completeness because the jury should have been permitted to see that most of the defendant's statement consisted of vehement denials that he had touched the victim, and "chopping" up the videotape confused the jury. The redactions included, among other things, many of the defendant's blanket denials and references to the victim's sexual reputation.
At trial, defense counsel objected to the admission of any portion of the videotaped interview. When that argument was unsuccessful, she sought to expand the trial record under the doctrine of verbal completeness. The redacted portions of the interview were properly excluded as, inter alia, hearsay, see Commonwealth v. Womack, 457 Mass. 268, 273 (2010) ; Commonwealth v. Spencer, 465 Mass. 32 (2013), and evidence barred by the rape shield law. See G.L.c. 233, § 21B.
"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).
Here, there was no risk that the jury would be left with the false impression that the defendant had not denied the accusations against him. Contrast Commonwealth v. Crayton, 470 Mass. 228, 247 (2014). The portions of the interview admitted in evidence contained several denials by the defendant, including his statement, "What I'm saying to you is the girl came over to my house and did that. On everything I love, I did not touch that girl." The admitted portions of the interview make clear that the defendant denied touching the victim and that his admission to the possibility that he touched the victim's breast was in acquiescence to a suggestion by a police officer. The admitted portions of the interview accurately expressed the defendant's explanation of events, and the judge did not abuse his discretion in declining to admit the redacted portions of the recording.
2. Prosecutor's closing argument. The defendant argues that the Commonwealth's closing argument was improper because the prosecutor misstated evidence and impermissibly bolstered the victim's credibility.
The defendant also argues that the prosecutor's statements impermissibly appealed to the jury's sympathy. We find no merit to this claim.
Because defense counsel objected to the prosecutor's closing argument, but expressed satisfaction with the judge's subsequent curative instruction, we review any error in the prosecutor's closing argument under a substantial risk of a miscarriage of justice standard. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (applying substantial risk standard where "[d]efense counsel acquiesced in the curative instruction and specifically indicated he was satisfied"). There is a substantial risk of a miscarriage of justice "if we have a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). "[W]e review the evidence and the case as a whole," Dirgo, supra, and "consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision." Ibid., quoting from Azar, supra. The impact of the prosecutor's argument is assessed by looking at the combined effect of all errors. Commonwealth v. Burke, 373 Mass. 569, 577 (1977).
a. Misstating the evidence. The defendant argues that the prosecutor misstated the evidence twice during his closing argument by stating that the defendant had admitted to touching the victim's breast. The Commonwealth concedes that the trial prosecutor took the defendant's statement out of context. However, both times the prosecutor immediately or soon afterward correctly characterized the defendant's statement as one of possibility rather than an outright admission. The judge instructed the jury following closing argument that "the attorneys are not permitted to refer to facts that are not in evidence. And if based on your memory and understanding of the evidence the lawyer has done that, you should disregard those comments." Finally, the jury had the opportunity to, and in fact did, review the defendant's statement during deliberation. We conclude that under these circumstances, there was no substantial risk of a miscarriage of justice.
The prosecutor at first stated, "[T]he defendant admitted that he touched her breast." He later added that the defendant said, "I might have touched her breast." Later in his closing argument, the prosecutor repeated, "Towards the end of the interview what does [the defendant] say? Well, I touched her breast. It's possible I touched her breast when I was trying to get her out of my house...."
b. Comments on victim's credibility. The Commonwealth rightly concedes that it was improper for the prosecutor to suggest that the victim was credible simply because she subjected herself to testifying. Our courts have repeatedly found such statements to be improper. See Commonwealth v. Dirgo, 474 Mass. at 1013 ; Commonwealth v. Ramos, 73 Mass.App.Ct. 824, 826–827 (2009).
The prosecutor stated:
"[The victim] testified and subjected herself to cross-examination and came in here and in front of a group of strangers and talked about the most intimate, personal details that adults don't even like talking about, let alone teenage girls.
"...
"You saw her on the stand. You saw how traumatic this was for her.
"...
"Let me ask you this. Why? What does she get out of this? What does [the victim], a 15 year old girl, get out of coming into Court in tears, breaking down in front of you and telling you about being sexually assaulted by her next door neighbor? What motivation does she have to do this?
"You saw how difficult it was for her to do this."
We review the prosecutor's comments in context. Defense counsel made a direct assault on the victim's credibility, challenging inconsistencies in details of her testimony versus when she reported the assault. Besides the objectionable argument, the prosecutor argued based on the evidence why it would have been against the victim's interest to lie. He also highlighted the defendant's admissions that he made inappropriate sexual remarks to the victim and inconsistencies in the defendant's statements about whether he was drinking, where he was sitting, and what happened in his apartment. The prosecutor also urged the jury that the judge's charge would address witness credibility.
Defense counsel objected to the prosecution's argument that the victim was credible simply because she subjected herself to testifying. The judge immediately instructed the jury that their memory of the facts controlled, and that if the jury felt a lawyer appealed to human passions and prejudices, the jury should disregard those comments. The defendant's counsel expressed satisfaction with the trial judge's curative instructions. Subsequently, here, as in Commonwealth v. Leach, 73 Mass.App.Ct. 758, 767 (2009), the judge gave standard jury instructions emphasizing that it was the jury who were the sole judges of credibility and how to judge witness credibility, and that closings were not evidence. The acquittal of the defendant on four of five charges and conviction on the one charge where there was some corroborating evidence through the defendant's admissions, indicates that the jury independently evaluated the victim's credibility. We discern no substantial risk of a miscarriage of justice.
3. Ineffective assistance of counsel. The defendant argues that he was deprived of effective assistance of counsel because trial counsel did not request a jury instruction on the affirmative defense of accident. The parties do not dispute that evidence of accident was fairly raised, and the defendant was entitled to such an instruction if requested. Contrast Commonwealth v. Podkowka, 445 Mass. 692, 699 (2006).
"Because the defendant raises [this] claim[ ] for the first time on direct appeal, [its] factual basis must appear ‘indisputably on the trial record’ for us to resolve [it]." Commonwealth v. Dargon, 457 Mass. 387, 403 (2010), quoting from Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). "We keep in mind that an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for [her] actions and suggestive of strategy contrived by a defendant viewing the case with hindsight ." Commonwealth v. Norris, 462 Mass. 131, 142 (2012), quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002).
We cannot say on this record that defense counsel's failure to request the instruction was so manifestly unreasonable as to defy strategic explanation. The defense strategy was to argue complete fabrication on the victim's part, and defense counsel may have made the decision not to emphasize the defendant's admission that he might have touched the victim's breast when he touched her shoulders. The record does not indisputably establish a "serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" such that the defendant was deprived of "an otherwise available, substantial ground of defen[s]e." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
In addition, when a verdict is challenged based on the judge's failure to give an instruction, our case law has held that there is no need for reversal where "the essential purpose of the defendant's request was served by other parts of the charge." Commonwealth v. Maloney, 23 Mass.App.Ct. 1016, 1017 (1987). See ibid. (no grounds for reversal where jury were "instructed three different times, in varying language, that the Commonwealth was required to prove that any indecent touching had been intentional"). Compare Commonwealth v. Zaccagnini, 383 Mass. 615, 618 (1981) ("If the jury believed the defendant's version of the shooting and followed the judge's instructions [which did not include accident or self-defense], necessarily they would have been unable to find that the defendant acted with malice or that he intentionally shot the victim"); Commonwealth v. Lowe, 391 Mass. 97, 111 (1984) (finding no error where the jury charge "emphasized several times that the Commonwealth had the burden of proof to establish malice aforethought" and "that malice could not be found unless the jury found the shooting to be intentional").
Here, the jury were instructed that the Commonwealth had to prove beyond a reasonable doubt that (1) the complainant was fourteen years of age or older; (2) the defendant intended to engage in the touching; (3) the defendant committed a touching, however slight; (4) the touching was harmful or offensive; (5) the touching was indecent; (6) the touching was committed without justification or excuse; and (7) the indecent assault and battery occurred without the complainant's consent. These instructions, combined with the defendant's version of events as heard by the jury, made the accident instruction unnecessary. If the jury had credited the defendant's account, they could not have found the touching of the victim's breasts to be intentional. In these circumstances, the jury instructions on the Commonwealth's burden to prove the element of intent served the essential purpose of an accident instruction and thus trial counsel's failure to request such an instruction did not deprive the defendant of any ground of defense.
The jury charge included this example of an excused indecent touching: "An example of excuse is the situation where a person sees another in danger, reaches out, and while removing the other person from an oncoming vehicle, touches that person's breasts. In this case the Commonwealth must prove the absence of justification or excuse beyond a reasonable doubt."
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4. Postjudgment motion. The defendant argues that the trial judge abused his discretion in denying his motion for a new trial, or, in the alternative, reduction of the verdict, or postverdict inquiry of the jury regarding juror confusion.
We review the denial of a motion pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995), for an abuse of discretion. See Commonwealth v. Almeida, 452 Mass. 601, 613 (2008). "We defer to the trial judge because he has the advantage of face to face evaluation of the witnesses and the evidence at trial. He is in a far better position than we are to make the judgment required by the rule." Commonwealth v. Reavis, 465 Mass. 875, 891 (2013), quoting from Commonwealth v. Woodward, 427 Mass. 659, 668 (1998).
The defendant's postjudgment motion was accompanied by trial counsel's affidavit, in which she stated that two jurors had approached her to say that they thought the touching of the victim's breast was accidental but the judge's instruction left them no choice but to convict.
The trial judge, upon denying the motion, stated, "The Court finds that sufficient evidence was presented at trial ... [and] the Court declines to order a new trial or reduce the verdict." There is no showing of an abuse of discretion here.
The defendant's request for a postverdict inquiry of jurors also was correctly denied. See Commonwealth v. Fidler, 377 Mass. 192 (1979), overruled on other grounds by Mass.R.Prof.C. 3.5(c), as appearing in 471 Mass. 1428 (2015). Fidler reaffirmed the Supreme Judicial Court's "continuing adherence to the common-law principle barring inquiry into the contents of jury deliberations and thought processes of jurors and the impeachment of jury verdicts based on information that might be gained from such inquiry." Commonwealth v. Moore, 474 Mass. 541, 548 (2016) (discussing Fidler as continuing precedent). "Postverdict interview should be initiated only if the court finds some suggestion that there were extraneous matters in the jury's deliberations." Fidler, 377 Mass. at 203. Here, where there was no evidence of extraneous influence on the jury, a postverdict jury inquiry is not available.
Conclusion. For the foregoing reasons, we find no cause to disturb the judgment.
Judgment affirmed.
November 22, 2013, order denying postjudgment motion affirmed.