Opinion
10-P-1199
03-09-2012
COMMONWEALTH v. ROBERT E. BURDICK.
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 jury in the Superior Court convicted the defendant of three counts of aggravated rape, G. L. c. 265, § 22(a), assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b), and threatening to commit a crime, G. L. c. 275, § 2. On appeal, the defendant raises several challenges to his convictions. We address each alleged error in turn.
Background. We summarize the evidence before the jury, reserving certain details for our discussion of the issues. The victim, whom we shall call Ann, was a friend of the defendant. On November 14, 2008, Ann spent the evening smoking marijuana and watching a movie with the defendant in her apartment. At around 2:00 A. M., Ann offered to drive the defendant home. As the defendant was about to leave, he armed himself with a knife and pinned Ann down, telling her that he was high and wanted to have sex. He also asked Ann if she would have sex with him to save her life, and threatened to kill her if she tried to scream. The defendant then forced Ann to engage in oral and vaginal sexual intercourse over a four-hour period. Eventually, the defendant left the apartment and Ann called her mother. Ann then drove to the police station and reported the rape, after which she went to the hospital to be examined.
There was evidence, introduced by stipulation, that the defendant had injected Ritalin, a form of speed, into his hand earlier that day.
Subsequent deoxyribonucleic acid (DNA) testing revealed a match between the defendant's DNA and a partial major profile of male DNA detected on a vaginal swab obtained from Ann at the hospital.
Several hours later, the defendant was interviewed by State police Trooper Matt Boyer at the North Adams police station. The interview was videotaped, and portions of the videotape were played for the jury. Trooper Boyer confronted the defendant with Ann's allegations, which he denied. The defendant claimed that he had been with a friend, Jeffrey Morin, and not with Ann that evening. At various times during the course of the interview the defendant discussed his use of drugs. He stated that the scratches on his hands were track marks from injecting speed, which he explained was similar to crystal methamphetamine. He responded affirmatively when Trooper Boyer asked whether speed 'cranked' him up, and further stated that he could feel the effects of the drug for six to twelve hours, depending on its strength.
At trial, in contrast to what he had told Trooper Boyer, the defendant admitted that he had sexual intercourse with Ann on the night in question. It was the defendant's theory of defense, presented through opening statement, cross-examination of witnesses, and during closing argument that Ann had consented to engaging in sexual activity. The defendant also presented testimony from Ann's neighbor, who did not hear anything unusual during the time the defendant was in Ann's apartment. As to his statement to the police that he had an alibi, defense counsel argued to the jury that the defendant 'lied' to the police because he was friends with Ann's boyfriend and was 'appalled' that he betrayed his friend by having sexual intercourse with Ann.
Jeffrey Morin, the person whom the defendant had identified as an alibi witness, testified for the Commonwealth. He stated that he had not seen the defendant for a number of years and was not with him on November 14, 2008.
1. The videotape. The defendant argues that the judge abused his discretion by admitting the videotape of the police interview in evidence because it contained prejudicial evidence of other bad acts, namely his illegal use of drugs. We disagree.
While the defendant is correct that evidence of prior bad acts may not be introduced for the purpose of showing the defendant's propensity to commit the crime charged, such evidence is admissible to show knowledge, intent, motive, opportunity, or absence of mistake or accident. See Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). Here, the Commonwealth proceeded on the theory that the defendant had injected Ritalin (speed) into his hand approximately twelve hours before the sexual assault and was under the influence of the drug at the time he committed the offense. Thus, evidence of the defendant's drug use, in particular his use of 'speed' close to the incident, was probative on the issue of intent and motive. In addition, the judge gave the jury careful limiting instructions about the proper use of the challenged evidence. See Commonwealth v. Snell, 428 Mass. 766, 778 (1999) (judge's jury instructions reduced possible prejudicial effect of prior bad act evidence).
This theory was supported by Ann's testimony that the defendant told her he was high and wanted to have sex.
Next, the defendant contends that the videotape should have been redacted so that it excluded Trooper Boyer's statements and questions regarding Ann's allegations. He claims that by permitting the jury to hear Trooper Boyer repeat Ann's version of the incident and state his belief that there was probable cause to make an arrest, Ann's credibility was improperly bolstered.
We do not agree with the defendant's contention that the challenged statements amounted to improper vouching. 'Improper vouching can occur if an attorney [or witness] expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.' Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Here, there was no suggestion that Trooper Boyer had independent knowledge of the truthfulness of Ann's allegations. Nor did any such suggestion arise from the trooper's testimony at the trial. Furthermore, what was said to the defendant during the course of the interview provided context for the defendant's statements. As trial counsel correctly acknowledged at trial, the defendant's false statements were admissible to show his consciousness of guilt. Consequently, we conclude that the judge did not abuse his discretion.
2. Ineffective assistance of counsel. The defendant advances his claim of ineffective assistance of counsel on several grounds. First, he asserts that trial counsel was ineffective in failing to object to the admissibility of the videotape. As we have already explained, the videotape was properly admitted, and therefore, 'trial counsel cannot be faulted for failing to object.' Commonwealth v. DelValle, 443 Mass. 782, 791 (2005).
The defendant did not file a motion for a new trial, as he should have. Nonetheless, because his claims fall within that narrow category of claims that an appellate court can resolve on the trial record alone, we consider his argument. Commonwealth v. Zinser, 446 Mass. 807, 812 (2006).
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Next, the defendant complains that trial counsel erred in stipulating to the introduction of a written statement from his friend, Richard Perkins. In that statement, Perkins stated, among other things, that on the afternoon preceding the sexual assault, the defendant went to his house and injected Ritalin into his hand. The defendant also made a sexually explicit comment about Ann. Referring to the act of oral sex, the defendant told Perkins that Ann 'gives good head.' This sexual reference to Ann, which implied prior sexual activity between Ann and the defendant, provided support for the defense theory of consent, and was highlighted as such by trial counsel in his closing argument. The decision to stipulate to the admission of the statement 'was clearly tactical and, as such, was not manifestly unreasonable.' Id. at 791 n.11.
Finally, the defendant argues that trial counsel was ineffective for failing to retain an expert to assist him in cross-examining Ann on the issue whether Ann's drug use and mental health (depression) affected her ability to perceive and recall events. It suffices to note that Ann was aggressively cross-examined on this precise issue, and therefore, the defendant was not deprived of an otherwise available substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
3. Closing arguments. There is no merit to the defendant's claim that the prosecutor exceeded the bounds of proper argument when she stated the defendant was 'cranked up' on speed at the time of the offense. As the defendant did not object, we review the claim under the substantial risk of a miscarriage of justice standard. Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). As has been indicated, there was evidence that the defendant had injected himself with Ritalin about twelve hours before the incident, and that he told Ann that he was high and wanted to have sex. The prosecutor's remark was a fair inference from this evidence. There was no error, let alone a substantial risk of a miscarriage of justice.
4. Duplicative convictions. The defendant argues that his conviction of assault and battery by means of a dangerous weapon is duplicative of his convictions of aggravated rape. The Commonwealth concedes the point, and we agree. Consequently, the judgment on the indictment charging assault and battery by means of a dangerous weapon is reversed, the verdict is set aside, and that indictment is dismissed. The remaining judgments are affirmed.
So ordered.
By the Court (Rapoza, C. J., Smith & Vuono, JJ.),