Opinion
15-P-189
04-29-2016
COMMONWEALTH v. LEONARD COWEN.
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
After a jury trial, the defendant, Leonard Cowen, was convicted of one count of open and gross lewdness and lascivious behavior, see G. L. c. 272, § 16, and one count of indecent assault and battery on a child under 14, see G. L. c. 265, § 13B, with respect to his stepdaughter Jane. On appeal he maintains that (1) the inclusion of the word "guilty" in the reading of the indictment for open and gross lewdness violated the presumption of innocence; (2) the denial of his request for individual voir dire was error; and, (3) the prosecutor engaged in impermissible burden shifting in closing argument. We affirm.
A pseudonym. The defendant was acquitted of statutory rape with respect to Jane, and four additional charges involving a younger stepdaughter.
Reading of the indictment. The clerk read the language of the indictment to the jury, stating that "Leonard Cowen, on divers dates . . . was guilty of open and gross lewdness and lascivious behavior in the presence of [Jane] . . . pursuant to General Laws, Chapter 272, Section 16." This language comported with G. L. c. 277, § 79, which provides a form of indictment for various crimes, including a violation of G. L. c. 272, § 16.
The defendant claims that the use of the word "guilty" as it appears G. L. c. 272, § 16, violated the presumption of innocence by informing the jury that the grand jury had found him guilty of the offense. Although the term guilty may be better left aside in crafting an indictment, all indictments are an accusation in one form or another. We ascribe to the jury a measure of sophistication in sorting out the difference between an accusation (whether made by way of complaint or indictment) and proof beyond a reasonable doubt. See Commonwealth v. Drayton, 386 Mass. 39, 47 (1982). This is particularly true where, as here, the jury were specifically instructed that the indictment was only an accusation and that the Commonwealth carried the burden of proving guilt beyond a reasonable doubt at trial. See Commonwealth v. Corliss, 371 Mass. 266, 267-268 (1976); Drayton, supra. Cf. Commonwealth v. DaSilva, 471 Mass. 71, 81 (2015).
Voir dire. The defendant requested the following question be posed to the jurors on voir dire: "Would you be more inclined to believe a witness if another witness testifies to substantially similar behavior by the Defendant?"
The judge declined on the ground that the charges involving two of the defendant's stepdaughters had been joined for trial, and that the Commonwealth would be permitted to introduce evidence regarding both stepdaughters to show a common pattern. The judge reasoned that the question as framed contained an improper statement of the law, and that to place it in context would require too detailed an explanation of the facts (both alleged and disputed) at that early stage of the proceedings. Counsel suggested renewing his request in the context of jury instructions, and the judge gave a detailed specific unanimity instruction that was acceptable to the defendant.
The scope of voir dire was within the discretion of the trial judge. See Commonwealth v. Gray, 465 Mass. 330, 338, cert. denied, 134 S. Ct. 628 (2013). The trial judge must inquire about possible bias or prejudice where it appears that there is a substantial risk that jurors may be influenced by factors extraneous to the evidence presented to them. See ibid., citing Commonwealth v. Perez, 460 Mass. 683, 688 (2011). "An extraneous issue is one that goes beyond the record and raises a serious question of possible prejudice." Commonwealth v. Kater, 432 Mass. 404, 414 (2000), citing Commonwealth v. Cameron, 385 Mass. 660, 668 n.8 (1982). As in Kater, the weakness in the defendant's argument here is that the evidence of a "similar crime was not extraneous." Kater, supra. The allegations regarding the two stepsisters were joined for trial, and the evidence regarding the defendant's conduct towards both girls was deemed admissible to show a common pattern. There was no abuse of discretion.
The trial in this matter occurred before the April 3, 2015, effective date of the amendments to G. L. c. 234, § 28. See St. 2014, c. 254, §§ 3, 4.
The defendant does not challenge either the joinder or the admissibility of the evidence on appeal.
Closing argument. The defendant maintains that the prosecutor impermissibly shifted the burden of proof when he stated that there was not a "shred of evidence" to support the defendant's theory that the stepdaughters were fabricating their story. See generally Commonwealth v. Tu Trinh, 458 Mass. 776, 787-788 (2011), citing Commonwealth v. Miranda, 458 Mass. 100, 116-117 (2010) (comment on defendant's failure to contradict testimony improper). Defense counsel objected and the judge instructed the jury to ignore the remark. The judge's instruction that "Mr. Cowen has nothing to prove here," and "the burden of proof is always on the Commonwealth," in addition to his instruction that "closing arguments are not evidence," was sufficient to cure any prejudice to the defendant. See Tu Trinh, supra at 788. The jury's acquittal of the defendant of all charges pertaining to the younger stepdaughter also belies the assertion that the jury was swayed or misled by the closing argument. Cf. Commonwealth v. Marrero, 85 Mass. App. Ct. 911, 912-913 (2014).
Judgments affirmed.
By the Court (Grainger, Sullivan & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 29, 2016.