Opinion
16-P-13
06-05-2017
COMMONWEALTH v. Westley H. CAIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28
After a jury trial on two indictments alleging aggravated rape, the defendant was found guilty of two counts of the lesser included offense of rape. At a subsequent jury-waived trial, the defendant was found guilty of rape as a subsequent offense, and of being a habitual offender. On appeal, he claims error in the denial of his motion to dismiss his indictments, error in the jury instructions, improper closing argument by the prosecutor, and an improper in-court identification of the defendant. We affirm.
The defendant was found not guilty of assault and battery by means of a dangerous weapon, and assault by means of a dangerous weapon.
1. Grand jury. The defendant claims that the prosecutor deliberately elicited testimony from a grand jury witness regarding the defendant's criminal past, including that he was a "known rapist," and that he had done "time." As a result, the defendant argues that the integrity of the grand jury was impaired and his motion to dismiss his indictments should have been allowed. We disagree.
"Dismissal of an indictment based on impairment of the grand jury proceedings requires proof of three elements: (1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Silva, 455 Mass. 503, 509 (2009). See Commonwealth v. Mayfield, 398 Mass. 615, 620-622 (1986).
Although the motion judge did not make explicit findings regarding whether the defendant's past criminality was presented knowingly or recklessly, or that it was done with the purpose of obtaining an indictment, she did not find that that the presentation was done intentionally, as the defendant's claims. Rather, the motion judge's statement that the Commonwealth "should have been more careful" in its preparation of the witness, implies mere negligence. In any event, the record does not support the conclusion that the prosecutor acted knowingly or recklessly in presenting the improper testimony.
As the judge found, in addition to the improper remarks, the witness provided exculpatory evidence of the victim's drug use and her inconsistent statements. Also, we fail to divine evidence of the prosecutor's intent from her ambiguous, nonsequential, and garbled notes she made when she interviewed the witness. In fact, at trial, the prosecutor said the notes also reflected her thoughts at the time, and were not all notations of statements made by the witness.
Finally, while we agree that "[r]eference to a defendant's criminal record before a grand jury is clearly undesirable," that evidence, in conjunction with the evidence of sexual assault of the victim, even if improperly admitted, does not serve as the basis for dismissal because the defendant has not met his burden of showing that the evidence "probably made a difference" in the grand jury's decision to indict. Commonwealth v. Freeman, 407 Mass. 279, 283 (1990), quoting from Commonwealth v. Mayfield, 398 Mass. at 621-622. Here, the victim's testimony and the Commonwealth's other properly presented evidence were "more than adequate to meet [its] burden of probable cause." Commonwealth v. Mathews, 450 Mass. 858, 875 (2008). In addition, the prosecutor's numerous limiting instructions to the grand jurors, which we presume the jurors followed, see Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) ("We presume that a jury follow all instructions given to it"), sufficiently mitigated the effect of the improper evidence. The motion to dismiss was properly denied.
The victim testified to forced oral and vaginal penetration by the defendant's penis, while he held a knife to her neck. Also, semen was found on a vaginal swab taken from the victim; the defendant denied having intercourse with the victim; the defendant's admission that he carried a knife; and, despite the defendant's claim he had not associated with the victim in a year, there was evidence that his bus pass was used near the victim's house the night of the rape.
2. Lesser included offense instruction. After deliberations began, the jury asked whether it could consider the lesser included crime of rape. After granting defense counsel a recess to consult with her office, the defendant objected to the judge giving the lesser included instruction. Defense counsel explained that the Commonwealth's theory was that the rape was aggravated by the use of a knife, and the defendant's theory was that no weapon was employed and no sexual assault took place. Given this, defense counsel stated that under either theory, a lesser included instruction on rape would not apply.
On appeal, the defendant's claim has shifted. Now, for the first time, the defendant claims that the judge's giving the lesser included instruction deprived him of effective assistance of counsel. "Because the basis of the defendant's objection is not the argument made on appeal, we review any error the judge made" in giving the lesser included instruction for a substantial risk of a miscarriage of justice (footnote omitted). Commonwealth v. Bonds, 445 Mass. 821, 828-829 (2006). See Mass.R.Crim.P. 22, 378 Mass. 892 (1979).
The defendant improperly states that the standard of review for this claim is harmless beyond a reasonable doubt. That standard is reserved for preserved constitutional claims of error. See Chapman v. California, 386 U.S. 18, 24 (1967).
"[I]t is not error to give a lesser included offense instruction ‘if on any hypothesis of the evidence, the jury could have found the defendant[ ] guilty of [the lesser included offense]’ and not guilty of the greater offense." Commonwealth v. Porro, 458 Mass. 526, 537 (2010), quoting from Commonwealth v. Thayer, 418 Mass. 130, 132 (1994). "In determining whether there was a hypothetical basis for the jury to conclude that the defendant was guilty of the lesser included offense, but not the offense charged, the judge may consider the possibility that the jury reasonably may disbelieve the witnesses' testimony regarding an element required of the greater, but not the lesser included, offense." Porro, supra. Here, simply enough, the jury could have disbelieved that the defendant used the knife during the rape. Indeed, the jury acquitted the defendant of the assault and battery by means of a dangerous weapon charge. There was no error in giving the lesser included instruction. See Commonwealth v. Licciardi, 387 Mass. 670, 675 (1982).
Even when viewed through the lens of ineffective assistance of counsel, the fact that the charge was aggravated by the alleged employment of the knife did not eliminate the defendant's need to defend himself against the underlying rape charge. The subtle difference in these crimes would not change the nature of the defense in a manner that would have left counsel unprepared to defend against both crimes. In fact, as stated above, the defendant's theory at trial was that no weapon was used and no sexual assault took place. On this record, we cannot say the defendant was deprived of effective assistance of counsel or that there was any risk that justice miscarried.
Also, contrary to the defendant's claim, giving the lesser included instruction did not violate the defendant's rights under Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). In general, rule 24(b) provides (among other things), that the judge will inform the parties of his action on proposed requested instructions before closing arguments. The defendant cites no authority for the proposition that rule 24(b) applies to a judge's instruction in response to a jury question. In fact, the rule states, "Upon request, reasonable time shall be given to each party to object to the charge before the jury retires." Ibid. This implies that the rule does not apply to supplemental instructions. The defendant's argument is without merit. See Commonwealth v. Thomas, 21 Mass. App. Ct. 183, 186 (1985) (no error to instruct jury in response to a jury question on a theory of guilt previously rejected by judge prior to closing arguments).
3. Closing argument. The defendant further claims that the prosecutor improperly vouched for the victim's credibility and appealed to the jury's sympathies. We disagree. As there was no objection to the prosecutor's closing argument, we review for error, and if one exists, we determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Joyner, 467 Mass. 176, 188 (2014).
The theme of the prosecutor's summation was the implausibility of the defendant's theory that the victim had lied about the entire event because the defendant stole twelve dollars from her. See Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008) ("[T]here is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie"). Because the defendant's argument focused on the victim's credibility, "it [was] proper for the prosecutor to invite the jury to consider whether the [victim] had a motive to lie and to identify evidence that demonstrates that the [victim]'s testimony is reliable." Commonwealth v. Dirgo, 474 Mass. 1012, 1014 (2016). By addressing the circumstances of the case, including the victim's sexual abuse intervention network (SANE) interview and her injuries, the prosecutor properly urged the jury to reject the idea that the victim was motivated by her loss of a small amount of money. See Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002). See also Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993), quoting from Commonwealth v. Drayton, 386 Mass. 39, 52 (1982) ("Prosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it").
The defendant takes issue with the prosecutor's use of graphic testimony. However, the argument was based on evidence the jury heard, some of which was graphic. The prosecutor is permitted to marshal that evidence in support of a conviction. It was neither excessive nor an appeal to sympathy. See Commonwealth v. Rodriguez, 437 Mass. 554, 567-568 (2002).
--------
The defendant also claims that the prosecutor improperly argued that the victim was credible because of her willingness to testify in court. He argues that this occurred when the prosecutor remarked: "She answered questions on Tuesday. She came back on Wednesday. And was she mad about it? She was mad. She was mad because that man raped her." Contrary to the defendant's claim, the prosecutor was not arguing that the victim should be believed because she testified at trial or because she participated in the investigation. Again, this was a response to the defendant's argument that the victim was angry because the defendant had stolen from her. However, the prosecutor's focus was on the genesis of the victim's anger being the rape and the defendant's control over her, and the implausibility of her anger being about lost money.
Even if the remarks could have been understood as a request to believe the victim because she put herself through the ordeal of a trial, see Helberg, supra, the error did not create a substantial risk of a miscarriage of justice. Contrary to the defendant's argument, the Commonwealth's case did not rely solely on the victim's testimony. There was also physical evidence including the defendant's deoxyribonucleic acid (DNA) in the victim's vagina, and abrasions to her body and vagina. These both corroborated the victim's testimony. Also, the defendant initially denied that he had intercourse with the victim despite the DNA evidence to the contrary, and the challenged remarks were a small portion of the argument. In addition, the judge three times instructed the jury the closing arguments were not evidence. See Commonwealth v. Choeurn, 446 Mass. 510, 523 (2006).
4. In-court identification. Finally, the defendant claims that the booking officer's in-court identification of the defendant during the sentencing enhancement trial should have been precluded pursuant to Commonwealth v. Crayton, 470 Mass. 228, 236-238 (2014). We disagree.
At this trial, the defendant was charged with violating G. L. c. 279, §§ 22 and 25, for a second or subsequent rape conviction, and the enhancement of a habitual offender. In part, the judge was to determine whether the defendant was the same person who had been convicted of the prior qualifying offenses. As the judge properly determined, because the booking officer was not an eyewitness to these crimes, the rule announced in Crayton does not apply. See id. at 241-242 (the new rule "shall apply only to in-court identifications of the defendant by eyewitnesses who were present during the commission of the crime"). The defendant's claim is without merit.
Judgments affirmed.