Opinion
13-P-1656
08-10-2015
COMMONWEALTH v. WILLIAM BURTON, THIRD.
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
In October of 1995, the seventeen year old victim was tied up and raped in the basement of a Weymouth rectory where she worked. Almost fifteen years later, in September, 2010, the defendant, William Burton, was indicted by a Norfolk County grand jury on rape and kidnapping charges arising out of the attack. The indictments charged the defendant with two counts of aggravated rape, one count of kidnapping, and one count of attempted murder. Following a jury trial, the defendant was convicted of one count of aggravated rape and kidnapping. On appeal, the defendant raises a number of issues concerning the trial judge's denial of his motion for a required finding of not guilty and also claims that the prosecutor committed a series of errors in her closing argument that require reversal. We affirm.
As is discussed further below, see note 3, infra, the kidnapping conviction was dismissed before sentencing as duplicative.
1. Background. Very briefly summarized, reserving certain details for discussion of the issues raised, the trial record showed that on October 2, 1995, around 8:00 P.M., the defendant rang the doorbell to the Saint Albert's rectory in Weymouth. When the victim, a seventeen year old part-time employee, opened the door, the defendant threw a towel over the victim's head and dragged the victim into the basement of the rectory, where the defendant then bound the victim's hands with her shoelaces and raped her vaginally.
After the attack, the victim was taken to the hospital, where, among other procedures, a blood sample and vaginal and oral swabs were taken. As is relevant here, eight years later, in April, 2003, the victim's "known blood standard" and "vaginal swabs" were retrieved from the evidence collection kit taken at the hospital and sent to Orchid Cellmark laboratory (Cellmark), which was described at trial as "a private laboratory that specializes in DNA testing." The DNA profile generated by Cellmark was eventually transferred to a national DNA database. Seven years later, in January, 2010, a link was established between the DNA profile contained in the national database and the defendant. In turn, the police reopened the investigation into the 1995 attack, which eventually led to the arrest and conviction of the defendant.
2. Motion for a required finding. First, the defendant claims that the trial judge erred in denying his motion for a required finding of not guilty because, in the defendant's view, the Commonwealth failed to prove that the charges were not time barred by the statute of limitations. In particular, the defendant argues that (a) the statute of limitations for the charge of aggravated rape should have been limited by the statute of limitations for the aggravating factor, i.e., the kidnapping charge, and (b) the trial judge erred in instructing the jury on the statute of limitations for the charge of kidnapping.
At the close of the Commonwealth's case-in-chief, the defendant moved for a required finding of not guilty. The trial judge allowed the defendant's motion in part, with the agreement of the Commonwealth, and dismissed the indictment charging aggravated rape by unnatural sexual intercourse. At the close of arguments, the trial judge denied the defendant's renewed motion for a required finding of not guilty on the remaining charges.
a. As to the defendant's first argument, that the statute of limitations for the charge of aggravated rape is limited and controlled by the statute of limitations period for the aggravating factor (kidnapping), we reject this. The plain and clear language of G. L. c. 277, § 63, indicates that "[a]n indictment for" aggravated rape, G. L. c. 265, § 22(a), "may be found and filed within 15 years of the date of commission of such offense." G. L. c. 277, § 63, as appearing in St. 2006, c. 303, § 9. "Where the language of a statute is plain, it must be interpreted in accordance with the usual and natural meaning of the words." Commonwealth v. Rahim, 441 Mass. 273, 274 (2004), quoting from Gurley v. Commonwealth, 363 Mass. 595, 598 (1973). There was no error.
b. Next, the defendant argues the trial judge incorrectly instructed the jury during her final charge that as to the kidnapping indictment, the Commonwealth was required to indict the defendant by October 2, 2011. However, after the defendant filed his brief, the Commonwealth filed a motion to stay the appellate proceedings, and was given leave to file a motion in the Superior Court to settle the record, Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979), and to have a corrected version of the relevant trial transcript, which included the judge's final jury charge, transferred from the Norfolk Superior Court to this court. That motion was allowed. A review of the corrected transcript reveals that the trial judge correctly instructed the jury as to the relevant date, i.e., October 2, 2001.
On appeal, the defendant also argues that the evidence was insufficient for the jury to find that the kidnapping indictment was brought within the applicable statute of limitations period. However, as noted above, following the jury verdict, but before sentencing, the kidnapping conviction was dismissed as duplicative by the trial judge. The defendant was therefore never sentenced on the kidnapping charge. "Generally, a judgment in a criminal case is the sentence, and a defendant has no right of appeal until after the sentence is imposed." Commonwealth v. Caetano, 470 Mass. 774, 776 (2015). We agree with the Commonwealth's argument on appeal that the trial judge's action of "having the dismissal effective on either the expiration of any appeal period or in the event of an appeal on when the conviction is affirmed," was tantamount to placing that conviction on file. "Absent exceptional circumstances, we do not consider appeals on assignment of error on indictments placed on file since no appeal may come before us until after judgment, which in criminal cases is the sentence." Commonwealth v. Delgado, 367 Mass. 432, 438 (1975).
3. The prosecutor's closing. The defendant points to three comments in the prosecutor's closing argument that he claims warrant reversal. None of these statements were objected to at trial. As there was no objection, "we review only to determine whether the alleged errors, if any, created a substantial risk of a miscarriage of justice." Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 776 (2001).
a. Facts not in evidence. During trial, the defendant introduced employment records from his former employer in Massachusetts, Triangle Engineering Inc., which the defendant suggested showed that he worked in Massachusetts for much of 2001 and that therefore the kidnapping charge was time barred by the statute of limitations. In his closing argument, relying in part on the employment records, defense counsel argued that the charge of kidnapping was brought "two-and-a-half" to "three months beyond the statute of limitations." To counter this suggestion, in her closing argument, the prosecutor made the following comment about the employment records:
"And you have these work records. I would ask you to pay attention to the last page, which is his driver's license from Maryland, which is part of these work records that shows that he had established a residence in Maryland. These are not pay stubs I suggest. These don't tell you the days and the hours that he actually worked and if you look at this first page, I would ask you to pay attention to, it says: Hire date, 6/1/01 for insurance purposes. Doesn't that suggest that perhaps the owner of this company or whoever created these documents altered the dates a little bit for insurance and so can we really rely upon these dates? Doesn't it make sense, given what you heard about the Burtons['] relationship that they really did move to Maryland in 2001 and he never came back to become a residence [sic] of Massachusetts."
The defendant argues that the prosecutor's remark about the alteration of the hiring date was not a fair inference from the evidence. We discern no error in the prosecutor's comments. There was conflicting evidence at trial as to when the defendant moved to Maryland. Further, there was an explicit notation in the employment records introduced by the defendant suggesting that the June, 2001, rehire date was for "insurance purposes." "Prosecutors are entitled to argue theories supported by the evidence and to suggest fair inferences from the evidence (which inferences need only be reasonable and possible, not necessary or inescapable"). Commonwealth v. Correia, 65 Mass. App. Ct. 27, 31 (2005). Furthermore, whatever limited prejudice the defendant might have suffered from the prosecutor's comments did not, in our view, give rise to a substantial risk of a miscarriage of justice.
We also reject the defendant's alternative contention, that the prosecutor's comments about the employment records was an impermissible rhetorical question that shifted the burden of proof to the defendant. See Commonwealth v. Nelson, 468 Mass. 1, 12-13 (2014).
b. Improper vouching. Next, the defendant argues that the prosecutor impermissibly vouched for the credibility of the Cellmark laboratory witnesses. In his closing argument, defense counsel raised the issue of witness credibility on a number of occasions and attacked the reliability of the DNA testing procedures performed at the Cellmark lab. Specifically, defense counsel suggested that the laboratory witnesses were the "most evasive witnesses that [the jury] saw in this trial." To counter this onslaught, the prosecutor suggested that the Cellmark witnesses credibly explained the reliability of the DNA testing procedures and "were able to explain . . . in a clear and a concise manner how they processed the evidence." "Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed." Commonwealth v. Thomas, 401 Mass. 109, 116 (1987). In short, "it was proper for the prosecutor to argue from the evidence why these witnesses should be believed; the prosecutor did not vouch for their credibility." Commonwealth v. Ortega, 441 Mass. 170, 181 (2004).
c. The prosecutor's comment on the 1995 investigation. Near the end of her closing argument, without objection, the prosecutor made the following comment about the adequacy of the 1995 investigation: "They [the police] needed the DNA evidence that was provided in 2010 and this litany of reasons why the Commonwealth has not proven beyond a reasonable doubt, it's just an attempt to trivialize the horror of what happened to [the victim]."
We agree that the prosecutor's comment was improper. Nevertheless, the trial judge immediately interjected and struck the isolated errant remark. The judge then forcefully instructed the jury that the defendant's theory was "a legitimate argument for counsel to make with respect to inadequacies in and [sic] investigation and inferences to ask you to draw [--] inferences from those inadequacies." Furthermore, in her final charge to the jury, the judge reminded the jury that closing arguments are not evidence. "Extraevidentiary remarks in closing arguments are normally adequately neutralized by a timely curative instruction and a general reminder that arguments of counsel are not evidence." Commonwealth v. Giguere, 420 Mass. 226, 234 (1995).
Judgment affirmed.
By the Court (Kafker, C.J., Berry & Cohen, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 10, 2015.