Opinion
13-P-887
12-09-2014
COMMONWEALTH v. REUBEN LAMONT LACEFIELD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A grand jury returned indictments charging the defendant with two counts of aggravated rape and one count each of kidnapping and indecent assault and battery. After a Superior Court jury trial, the defendant was found guilty of one count of the lesser included offense of rape and acquitted of the remaining charges. Before us is the defendant's appeal.
Background. In the afternoon of March 31, 2004, the defendant encountered the victim as she was smoking a cigarette outside a homeless shelter. The victim, a long-time drug user who recently had been released from the hospital, had just registered to spend the night at the shelter while awaiting a bed in a sober house. When the defendant approached her and asked for a cigarette, she inquired whether he could "get [her] anything," meaning drugs. He answered affirmatively, took her to a nearby construction site, and led her into a large, concrete cylinder that contained a sleeping bag. The victim became fearful and tried to leave, but the defendant pulled her back inside. Crying, she begged him not to "do this." The defendant replied, "It's going to happen," and then raped her. Afterwards, the victim pretended that she was willing to stay with him but needed to go back to the shelter to get her bag. He allowed her to leave, and they began walking over together. After taking a few steps, she ran to the shelter, reported that she had been raped, and asked for help.
We present the facts in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
The victim was brought to the hospital where a medical examination revealed redness on the victim's labia majora and swelling on her labia minora, but no other visible injuries. Vaginal swabs taken during the examination were later tested and found to have sperm containing the defendant's deoxyribonucleic acid (DNA) profile. At one of thirteen DNA locations tested, a single typing was observed that matched neither the victim's nor the defendant's profile. The analyst testified that this could be explained as an artifact of the DNA amplification process and that it provided too little information to form any conclusions or even a minor profile.
The defense position at trial was that the victim had offered to exchange sex for drugs, and that after consensual sexual intercourse, the defendant tricked her out of the promised drugs, and, hence, she falsely accused him of rape.
Discussion. 1. Prosecutor's closing argument. After discussing the issue with the judge in advance, the prosecutor argued that the jury could infer that the redness and swelling observed during the victim's medical examination resulted from a forcible sexual assault. On appeal, the defendant claims this was error; however, because there was no objection during or after the argument, we review only to determine if any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Washington, 459 Mass. 32, 41 n.17 (2011).
The statements in question are: "And the defendant forced his finger in there and he forced his penis in there and she didn't want it. And I suggest to you, ladies and gentlemen, that that is what caused the redness and the swelling that was observed by Dr. Dyer hours after [the victim] ha[d] been raped by the defendant." Previously, defense counsel had suggested that the bruising could have been caused by the victim's clothing.
In closing, a prosecutor may argue reasonable inferences from the evidence. Commonwealth v. Deane, 458 Mass. 43, 55-56 (2010). See Commonwealth v. Berry, 68 Mass. App. Ct. 78, 87 (2007). Here, the judge correctly ruled that a lay person reasonably could infer that bruising may occur from forcible contact, and, hence, the prosecutor's argument to that effect was proper. To the extent that the argument also may have suggested that the redness and swelling indicated lack of consent, it went too far. However, considering the argument as a whole, as well as the judge's particularly thorough instructions that the jury should not consider anything said in argument that was not a reasonable inference from the evidence, we discern no substantial risk of a miscarriage of justice.
2. DNA evidence. During a discussion with the judge prior to closing arguments, defense counsel acknowledged that no conclusions could be drawn from the unmatched DNA typing and agreed not to argue otherwise. Nevertheless, the defendant now claims that the judge should have allowed counsel to argue based upon that evidence that another person may have caused the redness and swelling on the victim's labia.
It was not error for the judge to place limits on counsel's argument. See Commonwealth v. Curnin, 409 Mass. 218, 222 n.7 (1991); Commonwealth v. Buckman, 461 Mass. 24, 34 (2011). Nor was there any prejudice. Even with the limitation, counsel used the unmatched typing to the defendant's advantage, arguing that the analyst's interpretation may have been affected by bias in favor of conviction. Counsel also suggested the possibility of a third party by pointing out a stain that was never tested.
3. Pattern evidence. The judge did not err in excluding evidence about an incident in which the defendant attempted to defraud an undercover officer who gave the defendant money for drugs. Although the defendant contends that this incident showed that he had a pattern of tricking people who sought drugs from him, the judge was entitled to conclude in his discretion that there was an insufficient nexus to make this evidence relevant and probative. See Commonwealth v. Walker, 442 Mass. 185, 202 (2004).
4. Evidence of victim's arrest. The defendant claims that the judge abused his discretion in limiting defense counsel's inquiry into an incident involving the victim that took place thirteen months after the date of the offense charged. On that occasion, police officers saw the victim flagging down a car; they then observed a man pull over, and the victim get into the car. The officer placed the victim under arrest for sexual conduct for a fee, but the charges later were dropped.
Concluding that this episode was of marginal relevance, the judge allowed only limited inquiry about it during cross-examination of the victim. It was within the judge's discretion to exclude further evidence (that the victim was arrested, and the location was near a strip club) as more prejudicial than probative. See Mass. G. Evid. § 403 (2014).
That inquiry resulted in the victim's admission that she had stood outside on the street, flagged down a car, and that a man had pulled over, and then she got into the car; but she denied that she did this because she was trying to get money for drugs.
Judgment affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 9, 2014.