Opinion
14-P-490
08-20-2015
COMMONWEALTH v. DAMARIS LOPEZ.
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
A jury found the defendant guilty of wilfully misleading a police officer engaged in a criminal investigation, G. L. c. 268, § 13B, and assault and battery upon a child by means of a dangerous weapon, G. L. c. 265, § 15A(c)(iv). The defendant was alleged to have steered police astray in their effort to determine the identity of the man who raped and impregnated the defendant's twelve year old daughter (to whom we refer by the pseudonym Kendra). The defendant was also charged with beating her other daughter, Rae, with a belt. On appeal, the defendant lodges four claims of error: (1) that insufficient evidence exists to sustain the conviction of misleading a police investigation, (2) she was prejudiced by the admission of inadmissible hearsay, (3) the prosecutor improperly played on the jurors' sympathies in her opening and closing statements, and (4) the judge improperly denied the defendant's request for a specific unanimity instruction as to the "misleading" charge. We address each argument in turn and affirm both convictions.
A judge allowed the defendant's motion for a required finding of not guilty as to a charge of intimidating a witness under G. L. c. 268, § 13B.
A pseudonym.
1. Sufficiency. On appeal, "we consider 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Ramos, 470 Mass. 740, 750 (2015), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). For a jury to find the defendant guilty under the "misleading" prong of § 13B, the Commonwealth must prove that the defendant "(1) wilfully misle[d] (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with a criminal investigation." Commonwealth v. Morse, 468 Mass. 360, 370 (2014), citing G. L. c. 268, § 13B(1)(c). To "mislead" is, among other things, "knowingly making a false statement . . . [or] intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement." Commonwealth v. Figueroa, 464 Mass. 365, 372 (2013), quoting from 18 U.S.C. § 1515(a)(3) (2006).
The defendant claims the evidence was insufficient to show that she misled police in their investigation of the identity of her daughter's rapist between May 5, 2010, and June 1, 2010 (the time period identified in the indictment), because nothing establishes that she was aware of the fact that her boy friend was the person who had impregnated her daughter. We disagree. Even assuming that the Commonwealth was required to prove that the defendant had knowledge of this fact, ample evidence existed to show it.
At trial it was undisputed that the boy friend was the father of Kendra's child.
The defendant could have still misled the police as to the identity of the rapist even if she did not know the rapist's identity. For instance, by suggesting suspects to the police that the defendant knew did not commit the crime, the defendant would have made a false statement that impeded the investigation.
In talking to the police, the defendant intentionally underrepresented the amount of time the boy friend spent at the home. She also kicked the boy friend out of her home soon after she learned of Kendra's pregnancy. Moreover, the defendant did not supply the boy friend's name but gave police the names of other potential suspects that were patently false leads. For example, the defendant provided the names of two young men who live in Pennsylvania, but Kendra and her family had moved away from that area to Massachusetts three years earlier. She also gave the name of a young man who had moved away from the area with his family much earlier. The defendant suggested a boy, whose surname she did not know, and described his house on a particular street, but no such person could be found. In addition, the defendant said that her other daughter, Rae, had told her that she had seen Kendra and the son of their father's girl friend in bed together at their father's house. Kendra denied ever being found in bed with someone at her father's house, and also denied telling her mother such a thing. Kendra's father also stated that the last time Kendra had been at his house was almost two years before the pregnancy. Furthermore, while the list of potential suspects the defendant supplied appeared exhaustive, she conspicuously omitted supplying the name of her boy friend, with whom she had left the girls overnight when she went into labor with their child, during the precise time frame of Kendra's impregnation.
The physicians informed the mother that Kendra appeared five months pregnant, which coincided precisely with when the defendant was in the hospital giving birth to her and the boy friend's son, during which the boyfriend was left supervising the girls overnight.
Finally, in August of 2010, after Kendra's daughter was born, the detective served summonses on the defendant ordering her to bring Kendra and Kendra's daughter in for genetic testing, and the defendant failed to comply. This evidence alone, which is only a portion of the inculpatory evidence the jury heard, amply supports the inference that the defendant had reason to believe her boy friend raped Kendra, and knowingly provided false leads to the police. See Commonwealth v. Giles, 350 Mass. 102, 112 (1966) ("Knowledge [of falsity] may be inferred by the trier of the fact from circumstantial evidence, which reasonably tends to show that knowledge existed"), S.C., 353 Mass. 1 (1967), overruled on other grounds by Commonwealth v. McDuffee, 379 Mass. 353 (1979).
2. Hearsay. At trial, the detective was permitted to testify that in checking on a lead supplied by the defendant that her daughter had sex with a boy named "Armando" in the school bathroom and school parking lot, the school principal indicated that, based upon how long Kendra claimed to be in the school bathroom, it was impossible for her to have had sex with another student there. The defendant made a general objection after the Commonwealth asked the question that elicited the detective's response, but did not object or move to strike after the answer. The defendant also failed to object to the judge's limiting instruction to the jury that the answer be considered "[a]s it relates to the issue of . . . misleading a police investigation, . . . as it relates to the impact on the [police] investigation." Accordingly, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Titus, 32 Mass. App. Ct. 216, 223 (1992).
We note the defendant did not object at trial, or bring a challenge on appeal, to the detective's statement that the principal told her that there was no student named Armando at the school, or to Kendra's testimony that Armando does not exist.
Assuming, without deciding, that the statement was inadmissible and the judge's limiting instruction inadequate, we find no substantial risk of a miscarriage of justice because, as noted above, there was other strong evidence of the defendant's guilt. See, e.g., Commonwealth v. Colon, 64 Mass. App. Ct. 303, 313 (2005); Commonwealth v. Cash, 64 Mass. App. Ct. 812, 815-816 (2005).
3. Opening statement and closing argument. The defendant argues, for the first time on appeal, that the prosecutor erred in her opening statement and closing argument by stating that this was a case about the "damage" the defendant wrought upon her daughters. Among the several references to "damage" in the opening were the prosecutor's statements that:
"[T]his is a case about damage. The damage that this defendant inflicted on a police investigation she should have been the biggest supporter of. And far more compellingly, the damage that she inflicted on the two young women who are her two oldest daughters. . . .In closing, the prosecutor, as promised, returned to her theme of "damage":
"Ladies and gentlemen, when you've heard all of the evidence in this case, and . . . I expect it will, at times, be a difficult [case] to listen to, I will come back
to you and I will suggest to you, at that time, that the damage the defendant did is not just that of a bad mother, but of a woman who is guilty of the crimes as charged." (Emphases supplied.)
"Ladies and gentlemen, two days ago I told you this was a case about damage. About the gut wrenching damage done to the [d]efendant's two oldest daughters. About the very different ways in which [the defendant] has left [Rae] and [Kendra] broken. And Ladies and Gentlemen I keep returning to damage not to play on your sympathy, not to draw you back to the emotion that those girls showed on the stand to play on your prejudice or to make you decide this case on emotion. That has no place in your deliberations. I draw you back because I would respectfully suggest to you that in this case the damage that you saw on that stand from those two girls is evidence. Compelling evidence of the [d]efendant's guilt as to the crimes charged." (Emphases supplied.)
We agree with the defendant that the prosecutor engaged in an improper appeal to the sympathy of the jury. "The nature of an appeal to sympathy is not so much a misstatement of evidence as an obfuscation of 'the clarity with which the jury would look at the evidence and encourage[ment of] the jury to find guilt . . . .'" Commonwealth v. Guy, 454 Mass. 440, 445 (2009), quoting from Commonwealth v. Santiago, 425 Mass. 491, 501 (1997). We also view as improper the prosecutor's repeated reference to the "damage" wrought on the victims. The characterization lacked evidentiary support and had no rational connection to any evidence the Commonwealth needed to present to prove its case. Cf. Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 311 (2005) (prosecutor's closing argument reference to church sex abuse scandal inappropriate and not founded in evidence).
Moreover, the prosecutor improperly commingled the effect the defendant had on her children as a "bad mother" with her guilt of the crimes charged. These comments amounted to a suggestion that the jury should punish the defendant for her failure to raise her children appropriately rather than evaluate her guilt of the crimes charged based on the evidence. See, e.g., Santiago, supra at 495 ("In a case such as this where the victim's character and personal characteristics are not relevant to any material issue . . . the prosecutor is under an obligation to refrain from so emphasizing those characteristics that [s]he risks undermining the rationality and thus the integrity of the jury's verdict"); Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011) ("Asking that the jury focus on the victim distracts attention from the actual issues, and invites the jury to decide guilt or innocence on the basis of sympathy"); Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 545 (2009) ("The prosecutor's repeated reference to the seriousness of the victim's injuries . . . went too far in appealing to juror sympathy"). Despite the impropriety of these comments, however, they do not give rise here to a substantial risk of a miscarriage of justice. The evidence of the defendant's guilt was overwhelming. In addition, the judge instructed the jury twice, both in his preliminary remarks and final instructions, that the opening statements and closing arguments are not evidence. He also properly instructed on the elements of the crime, and told the jurors to not base their decision upon emotion. See, e.g., Commonwealth v. Simpson, 434 Mass. 570, 583-585 (2001); Commonwealth v. Braley, 449 Mass. 316, 327-330 (2007). Therefore, while we view the prosecutor's statements as improper and distasteful, especially to the extent that they appear to be calling the victims "damaged," we conclude they do not rise to a substantial risk of a miscarriage of justice.
We note that the disclaimer in the prosecutor's closing, that she did not mean to appeal to the sympathies of the jury, did not give the prosecutor a free pass to do so.
As noted, the defendant did not object at trial, therefore our review is limited to whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alammani, 439 Mass. 605, 613 (2003).
4. Specific unanimity instruction. We also reject the defendant's claim that the judge erred by refusing to instruct on specific unanimity. "When a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required." Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 55 (2011), quoting from Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995). Here, the police questioning of the defendant occurred over the course of a few days "and followed a common theme, so a specific unanimity instruction was not warranted." Ibid. There was no error.
Judgments affirmed.
By the Court (Cohen, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 20, 2015.