Opinion
No. 11–P–1211.
2012-06-27
COMMONWEALTH v. Charles CLARKE.
By the Court (KATZMANN, BROWN & SULLIVAN), JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction by a District Court jury of two counts of assault and battery and one count of indecent exposure.
Discussion. 1. Invocation evidence. The defendant argues for the first time on appeal that the prosecutor improperly elicited from Officer Sokoloski that the defendant stated that he did not want to speak to him (before he did in fact speak with him). Evidence of the invocation of the right to remain silent may not be used against the defendant at trial. Commonwealth v. Sosa, 79 Mass.App.Ct. 106, 110 (2011). Such evidence is not “used against” the accused, however, where a witness mentions invocation in an answer that is nonresponsive to a prosecutor's questioning and bears no logical relationship to the line of questioning. See Commonwealth v. Waite, 422 Mass. 792, 799 n. 5 (1996); Commonwealth v. Ye, 52 Mass.App.Ct. 390, 395–396 (2001).
Officer Sokoloski's testimony here “was simply not responsive to the question [and was] added spontaneously by the witness.” Waite, supra. It was “not logically linked up with any contention or inference that harms the defendant.” Ye, 52 Mass.App.Ct. at 396, quoting from Waite, supra. Nor was the testimony “offered to promote an inference of guilt.” Waite, supra at 798. The defendant's invocation of his right to remain silent was therefore not “used against” him. Ibid. Indeed, the officer testified that thereafter the defendant did speak with him, and he recounted what the defendant said. In any event, the invocation was only mentioned once by a single witness and was not referenced by the prosecutor in her opening or closing. Even if there was error, it did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Semedo, 456 Mass. 1, 15 (2010).
2. Refusal evidence. The defendant also argues for the first time on appeal that the admission of evidence of his refusal to have his interview recorded was a violation of his right not to be compelled to incriminate himself under art. 12 of the Massachusetts Declaration of Rights.
The Supreme Judicial Court has “expressed a preference” that a defendant's statements during a police interview should be recorded. Commonwealth v. DiGiambattista, 442 Mass. 423, 447–448 (2004). Where there is no such recording, the defendant is entitled to an instruction informing the jury of the court's preference and cautioning the jury to use great care in weighing such evidence. Ibid. It is, however, “permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording.” Id. at 448–449. Because the instruction required by DiGiambattista “will likely be given after the close of the evidence and, moreover, after closing arguments, we consider it axiomatic that the ‘reasons or justifications' contemplated by DiGiambattista can be provided as part of the Commonwealth's case-in-chief.” Commonwealth v. Tavares, 81 Mass.App.Ct. 71, 74 n. 5 (2011).
The defendant argues his refusal evidence must be excluded under Commonwealth v. Conkey, 430 Mass. 139, 141 (1999). Conkey and similar cases, however, are concerned with a defendant's refusal to take affirmative steps to comply with police forensic testing, whereas here there was no such testing; nor was the defendant required to take any affirmative steps. Id. at 141–143. See Commonwealth v. Lydon, 413 Mass. 309, 313–314 (1992); Commonwealth v. McGrail, 419 Mass. 774, 779–780 (1995); Commonwealth v. Hinckley, 422 Mass. 261, 264 (1996). The defendant also argues that the wiretapping statute, G.L. c. 272, § 99, grants him a statutory right to refuse to be recorded. As that statute applies only to secret recordings, it is inapplicable here.
Here, the Commonwealth, by means of Officer Sokoloski's testimony, presented the “reasons or justifications that would explain why no recording was made.” DiGiambattista, 442 Mass. at 448–449. Sokoloski testified that the police attempted to record the interview with the defendant, but the defendant refused to allow such a recording. Such evidence is admissible in the Commonwealth's case-in-chief. Tavares, supra. The defendant did not object to the testimony or file a motion in limine, and the Commonwealth therefore had no way of knowing that the defendant would not seek (or the judge would not give) a DiGiambattista instruction. The Commonwealth did not have to wait until it was too late. We further note that the refusal to record was mentioned by only one witness and was not referred to by the Commonwealth in its opening or closing. In any event, even if there was error, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Semedo, 456 Mass. at 15.
3. Jury charge. a. Tuey–Rodriquez charge. The defendant argues that the judge gave the Tuey–Rodriquez instruction too early and, by doing so, improperly coerced the verdict. “A Tuey–Rodriquez charge ‘is intended to be used when ... the judge apprehends that the jury [are] deadlocked.’ “ Commonwealth v. Scanlon, 412 Mass. 664, 678–679 (1992), quoting from Commonwealth v. Rodriquez, 364 Mass. 87, 98 (1973). “Whether the jury are deadlocked, [however,] and whether the Tuey–Rodriquez charge should be given at a particular time, are matters that are addressed to the discretion of the trial judge.” Commonwealth v. O'Brien, 65 Mass.App.Ct. 291, 295 (2005). Here, the judge initially declined to give the Tuey–Rodriquez charge when requested by defense counsel. She gave the charge after the jury deliberated for two hours and fifty-four minutes in a case involving four witnesses and two exhibits related to four charges against a single defendant. Further, during this time period the jury twice indicated that they were having trouble coming to a unanimous decision. This time frame is in line with other cases that have a similar level of complexity. See Commonwealth v. Moore, 359 Mass. 509, 515 (1971) (three hours and nineteen minutes of deliberation on seven charges against two defendants); Commonwealth v. Evans, 42 Mass.App.Ct. 618, 625 (1997) (jury deliberated for two hours); Commonwealth v. Harris, 47 Mass.App.Ct. 481, 489–490 (1999) (impasse after ninety minutes). The judge had sufficient reason to believe that the jury were deadlocked, and defense counsel had requested the charge. There was no abuse of discretion.
b. Presumption of innocence and reasonable doubt. The defendant argues that the judge should have also recharged the jury on the presumption of innocence and reasonable doubt. Here, there was no indication that the jury were confused or unsure about the presumption of innocence or reasonable doubt. The judge was well within her discretion to decline to recharge the jury. See Commonwealth v. Wolinski, 431 Mass. 228, 233 (2000).
Judgments affirmed.