Opinion
20-P-241
01-24-2022
COMMONWEALTH v. Maurice BERRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from his conviction of three counts of aggravated rape of a child in violation of G. L. c. 265, § 23A (b ), the defendant challenges the sufficiency of the evidence and raises several claims of error. We discern no cause to disturb the judgments, and affirm, addressing the defendant's claims in turn.
Sufficiency of the evidence. The defendant claims that the evidence was insufficient to support a conviction on count four (oral rape) because the room where the assault took place was too dark for the victim to identify the defendant as the perpetrator. He contends that the jury impermissibly relied on inference and speculation drawn from circumstantial evidence to support their verdict.
While no conviction may "rest upon the piling of inference upon inference or conjecture and speculation," Commonwealth v. Lopez, 484 Mass. 211, 216 (2020), quoting Commonwealth v. Mandile, 403 Mass. 93, 94 (1988), the jury is permitted to make reasonable inferences drawn from circumstantial evidence to reach their conclusion. See Commonwealth v. Corriveau, 396 Mass. 319, 339 (1985). See also Commonwealth v. Dostie, 425 Mass. 372, 375 (1997). Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence was sufficient to support the jury's conclusion that the defendant was the perpetrator.
The victim testified that, on the evening of the assault, she and the defendant were alone in the living room drinking and smoking, and that she fell asleep on the couch. She woke up a short time later and a tall man with dreadlocks had his head between her legs and was performing oral sex on her. The defendant was "taller and had dreads." The victim then explained that, before she and the defendant were drinking and smoking together, she witnessed the only other male in the apartment with dreadlocks go to bed for the night with his infant son. She further explained that she knew the other man was in his room asleep because she knew that his infant son could only fall asleep while being held. This testimony followed the victim's detailed account of a separate previous incident when the defendant raped her. The jury were entitled to consider the evidence of the defendant's previous rape of the victim as context in weighing the circumstantial evidence supporting the victim's belief that the defendant was her assailant and, taken as a whole, the evidence did not require the jury to rely on speculation to convict the defendant.
On that occasion, the defendant digitally penetrated the victim while they were watching a movie together on the couch. The victim then got up and went to bed and the defendant followed her. The defendant got into the victim's twin bed and inserted his penis into her vagina from behind while the victim laid there crying.
Special verdict slip. The defendant also claims that the trial judge erred in instructing the jury on specific unanimity without also providing a special verdict slip. At trial, the defendant requested a specific unanimity instruction but did not request a special verdict slip or otherwise object to the verdict slip used. As such, we review the claim of error for a substantial risk of a miscarriage of justice. See Commonwealth v. Wright, 411 Mass. 678, 681 (1992).
The Supreme Judicial Court has held that "where there is evidence of separate incidents, each of which could warrant a guilty verdict, ... specific unanimity is required at least as to one incident." Commonwealth v. Accetta, 422 Mass. 642, 646 (1996). However, a special verdict slip is not required in all cases where a specific unanimity instruction is given. See Id. at 645-646. A special verdict slip is required when "substantively distinct or dissimilar" alternative theories of culpability are presented to the jury, requiring them to indicate the theory on which they base their verdict. See Commonwealth v. Arias, 78 Mass. App. Ct. 429, 433 (2010), citing Commonwealth v. Santos, 440 Mass. 281, 289 (2003).
Here, there were no alternative theories of culpability. The prosecution advanced a single theory of culpability for three distinct acts committed during two separate incidents. At the defendant's request, the trial judge instructed the jury that to convict the defendant they were required to be unanimous as to at least one specific act of rape. However, a special verdict slip was not required because the jury were not presented with multiple theories of how the defendant committed the charged crimes. Therefore, we discern no substantial risk of a miscarriage of justice.
Expert testimony. The defendant claims that the trial judge erred in allowing the expert testimony of Dr. Alice Newton, who gave both general testimony about why a woman would not seek a rape exam three years after an assault, and more graphic testimony about what injuries might occur during a rape. As the defendant did not object to Newton's testimony, we review this claim for a substantial risk of a miscarriage of justice. See Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 573-574 (2009).
The judge did not abuse his discretion in not excluding, sua sponte, Newton's general testimony on how and why physicians conduct rape exams. This testimony was offered to rebut the negative inference that a failure to undergo a rape exam is evidence that the assault did not occur.
However, Newton's testimony on the vaginal injuries that might occur during a rape was irrelevant and beyond the scope of permissible testimony. We accordingly consider whether it created a substantial risk of a miscarriage of justice.
Here, the effect of the error was minor. Newton made no claims specific to the victim or the particular acts at issue. Her testimony was general and brief and, given the strong evidence against the defendant, did not materially affect the jury's verdict. As such, we discern no substantial risk of a miscarriage of justice.
Closing argument. The defendant concedes that, of the four statements in the prosecutor's closing that he challenges, only one was preserved by objection. We review the preserved issue for prejudicial error, while reviewing the remaining three issues for a substantial risk of a miscarriage of justice. See Commonwealth v. Silva, 455 Mass. 503, 518 (2009).
Following the prosecutor's closing argument, defense counsel objected to the prosecutor's statement that the victim "doesn't gain anything by coming in here and telling you a lie." While a prosecutor may not suggest that the victim's testimony is entitled to greater credibility merely because they come to court to testify, "there is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie." Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008).
Here, the prosecutor's statements were proper. Contrary to the defendant's contention, the prosecutor made no suggestion that the victim's testimony was entitled to greater credibility simply by virtue of her willingness to come into court and be subject to the rigors of public testimony and cross examination. Contrast Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009).
The three unpreserved claims likewise furnish no basis for relief. While the prosecutor may have incorrectly attributed to the victim (rather than her roommate) the belief that the defendant provided the alcohol and marijuana, the evidence included testimony from the victim's roommate that it was the defendant's idea to drink and smoke, and that he had provided alcohol and marijuana to both women on a few occasions. While wrongly attributed to the victim, the evidence supported the factual substance of the prosecutor's comment. In any event, the trial judge gave appropriate curative instructions by instructing the jury that closing arguments are not evidence, and by cautioning them not to rely on the attorneys’ presentation of the evidence but instead on their own memory.
Next, the defendant claims the prosecutor misrepresented the meaning of a Facebook message by claiming it referred to oral sex. The parties differed as to the meaning of the message, and each presented their theory to the jury. Resolving conflicting interpretive theories is the proper role of the jury. See Commonwealth v. St. Louis, 473 Mass. 350, 364 (2015), citing Commonwealth v. Miranda, 458 Mass. 100, 113 (2010).
Finally, the defendant claims that the prosecutor impermissibly imputed emotional distress to the victim by stating that the victim deleted certain Facebook messages because they were too difficult to look at. As the victim testified about her emotional distress at trial, there was no error. We therefore discern no substantial risk of a miscarriage of justice.
Judgments affirmed.