Opinion
18-P-457
05-20-2019
COMMONWEALTH v. JESSE J. CAISSE.
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
After a trial in the Superior Court, a jury convicted the defendant of three charges of indecent assault and battery on a person over the age of fourteen. On appeal, he contends that the judge violated his constitutional rights by refusing to order a potential witness in the custody of the Department of Families and Children (DCF) -- the defendant's daughter -- to be interviewed by defense counsel. He also argues that certain parts of the prosecutor's closing argument were improper, and that two of his convictions are based on the same offense in violation of double jeopardy principles. We affirm.
Discussion. 1. Request to interview witness in DCF custody. On the third day of trial, at the defendant's request, his daughter was summonsed into court. The daughter, who had been present in the room when two of the assaults occurred, had been interviewed by the prosecution twice -- once in a videotaped forensic interview shortly after the crime was reported, and again almost two years later in preparation for trial. At the second interview she recanted her prior statement, and the Commonwealth immediately disclosed this fact to the defendant. The defendant argues that the judge violated his rights to compulsory process and to present a defense by denying his request for an interview midtrial.
The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights secure the right to present a defense and for compulsory process to obtain witnesses as part of that defense. See Washington v. Texas, 388 U.S. 14, 18-19 (1967); Commonwealth v. Durning, 406 Mass. 485, 494 (1990). "Witnesses belong neither to the Commonwealth nor to the defence. They are not partisans and should be available to both parties in the preparation of their cases." Commonwealth v. Balliro, 349 Mass. 505, 516 (1965). Witnesses may decline to speak with either side or both, but the government may not interfere with this choice. See Commonwealth v. St. Pierre, 377 Mass. 650, 658 (1979); G. L. c. 258B, § 3 (m).
The judge did not err in refusing to order the defendant's daughter to submit to an interview with defense counsel. When the prospective witness is a minor, the decision whether to consent to an interview belongs to the child's parents. See Commonwealth v. Adkinson, 442 Mass. 410, 417 (2004). Where, as here, the minor is in DCF's temporary or permanent custody, DCF stands in the parents' shoes and has the power "to consent or to refuse, on behalf of a minor child over whom it has custody, to be interviewed by the defendant or the prosecutor, or both." Id. at 418. Accordingly, DCF had the discretion to refuse the defendant's request to interview the child. At most, the defendant was entitled to ask the judge to bring DCF's representative into court and explain that DCF, on behalf of the child, could consent to or refuse an interview. See Commonwealth v. Carita, 356 Mass. 132, 142-143 (1969); Commonwealth v. Giacobbe, 56 Mass. App. Ct. 144, 150 (2002). The defendant did not make such a request, instead asking the judge to order an interview, a remedy to which he was not entitled and which the judge properly denied. See St. Pierre, 377 Mass. at 658 (no error denying defendant's request for Commonwealth to direct witnesses to speak with counsel -- "the wrong agent and the wrong message").
Nothing prevented the defendant from calling the daughter, who was present in court, as a witness. Defense counsel chose not do so because DCF did not consent to an interview and counsel did not think calling her "would be helpful to, actually, her or my case."
For the first time on appeal, the defendant contends that the prosecutor may have pressured DCF to deny the defendant's request for an interview. On the morning when the daughter had been summonsed, defense counsel stated for the record that the "DCF worker" who had accompanied the daughter to court told him that she had been "instructed" not to allow him to speak with the daughter. The defendant argues that this representation of counsel is "potentially ominous," and further contends that the judge, sua sponte, should have questioned the DCF representative to determine who had given the instruction to deny the interview.
Because the defendant did not raise this concern at trial, we review any error for a substantial risk of a miscarriage of justice. See Giacobbe, 56 Mass. App. Ct. at 150-151. The record does not support his claim of misconduct; indeed, as the defendant states in his brief, "it is unclear on the record who told DCF to not speak with the Defendant." Absent clear evidence, we cannot conclude there was misconduct, let alone misconduct creating a substantial risk of a miscarriage of justice. "There is nothing in the record to suggest that [DCF] was acting as agent of the prosecution such that its denial of an interview by [the defendant] constituted an impermissible interference with the defendant's rights." Adkinson, 442 Mass. at 419. "Even were we to determine that the judge somehow erred in failing 'to take the matter in charge [himself],' any error did not create [a substantial] risk [of a miscarriage of justice]." Giacobbe, 56 Mass. App. Ct. at 151, quoting St. Pierre, 377 Mass. at 659.
2. Closing argument. "Closing arguments must be limited to discussion of the evidence presented and the reasonable inferences that can be drawn from that evidence." Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). A prosecutor may argue forcefully for a conviction but may not refer to evidence that has been excluded, reference the defendant's failure to testify, vouch for the credibility of witnesses, or imply personal knowledge of the defendant's guilt. See id.; Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987). "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).
The defendant claims that three statements in the prosecutor's closing improperly referred to stricken testimony. The record does not support this claim. On direct examination, the victim testified repeatedly that she was scared when the defendant assaulted her and scared of what the defendant might do if she did not swear to keep his conduct a secret, if she stayed at his house, or if she tried to leave. She was also scared of jeopardizing her friendship with her best friend, whose sister was married to the defendant. The victim also testified that she remained at the defendant's house because she did not want to abandon the defendant's daughter, who was in her charge. On cross-examination, defense counsel challenged the victim's testimony that she was scared and uncomfortable throughout that day. When, on redirect, the prosecutor asked what the victim meant by saying she did not want to leave the daughter alone, the victim responded that she was "scared of what [the defendant] could do to [the daughter]." The judge sustained the defendant's objection to this statement, struck the testimony, and told the jury to disregard it, but denied the defendant's motion for a mistrial.
The next morning, defense counsel renewed his motion for a mistrial based on the stricken testimony. During closing arguments later that morning, the prosecutor stated three times that the victim was scared of what the defendant would do. On appeal, the defendant argues that these statements referred to the stricken testimony. Because the defendant did not raise this objection at trial, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Brewer, 472 Mass. 307, 315 (2015).
Read in context, the prosecutor's statements were based on the victim's testimony that had been admitted, not on the stricken testimony. Never did the prosecutor state or suggest that the victim was scared of what the defendant might do to the daughter. The fact that defense counsel did not object -- especially where he had renewed his motion for a mistrial based on the stricken testimony just a few hours earlier -- indicates that he did not understand the prosecutor to be referring to the stricken testimony. See Commonwealth v. Ahart, 464 Mass. 437, 442 (2013). Moreover, the judge's instructions to disregard such testimony, given contemporaneously and during the final charge, and that attorneys are not permitted to refer to facts not in evidence, mitigated any risk that the jury would base their decision on the stricken testimony. "The jury are presumed to follow the judge's instructions." Commonwealth v. Andrade, 468 Mass. 543, 549 (2014).
The defendant also asserts that the prosecutor's use of rhetorical questions in a section of the summation discussing the victim's motivation to lie violated just about every rule in the book, including arguing that the victim was credible because she subjected herself to the rigors of testifying at trial, see Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009), commenting on the defendant's silence, see Griffin v. California, 380 U.S. 609, 615 (1965), and burden shifting, see United States v. Skandier, 758 F.2d 43, 44-45 (1st Cir. 1985). The defendant did not raise any of these objections at trial, and for good reason: the prosecutor's argument violated none of these rules.
We comment briefly on the defendant's claim that the prosecutor's use of rhetorical questions shifted the burden to the defendant to produce evidence. A prosecutor may not comment on the defendant's decision not to testify or call the jury's attention to the defendant's failure to produce evidence or to contradict the testimony of a Commonwealth witness. See Commonwealth v. Johnson, 463 Mass. 95, 112 (2012). However, prosecutors are "entitled to respond to the defense argument and also to comment on the strength of its case and weakness of the defense, 'as long as argument is directed at the defendant's defense and not at the defendant's failure to testify.'" Commonwealth v. Silva, 471 Mass. 610, 623 (2015), quoting Commonwealth v. Garvin, 456 Mass. 778, 799 (2010). Asking rhetorical questions to suggest that a witness has no motive to lie is permissible where based on the evidence, or lack thereof, and made in response to defense counsel's argument concerning the witness's credibility. See Commonwealth v. Fernandes, 478 Mass. 725, 742-743 (2018); Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008).
The defendant did object at trial, and argues on appeal, that this section of the summation also amounted to vouching for the victim's credibility. Because the defendant preserved this claim, we review for prejudicial error. See Commonwealth v. Montez, 450 Mass. 736, 744 (2008).
Improper vouching "occurs when a prosecutor expresses his or her own belief in the credibility of witnesses or implies that he or she has knowledge independent of the evidence presented at trial." Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009). This did not occur here. The prosecutor never stated or implied personal knowledge that the victim was telling the truth. Instead, responding to a defense of fabrication, the prosecutor used rhetorical questions to argue that the victim had no motive to lie because the accusations would destroy her relationship with her closest friend and her second family, which was a fair inference from the evidence. See Rakes, 478 Mass. at 45. See also Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 28 (2016) ("A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs" [quotation and citation omitted]).
3. Duplicative convictions. Finally, the defendant argues that the judge erred by not granting his motion for a required finding of not guilty on either the first or third count of the indictment, because the conduct on which these counts were based -- touching the victim's vagina and touching her inner thigh -- were not separate and distinct acts.
The double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law prohibits multiple punishments for the same offense. See Commonwealth v. Dykens, 473 Mass. 635, 638 (2016); Commonwealth v. Suero, 465 Mass. 215, 219 (2013). Convictions are duplicative where the acts underlying the offense are "part of a continuous stream of conduct occurring within a short time frame and governed by a single criminal design," Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (2003), overruled on other grounds by Commonwealth v. Kelly, 470 Mass. 682, 700-701 (2015), or where one act is "incidental and necessary" to the accomplishment of the other. Suero, supra at 221.
Whether the defendant's acts are separate and distinct is a question of fact for the jury. See Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). See also Commonwealth v. Kelly, 470 Mass. 682, 699 (2015), quoting Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 753-754 (2009) ("Convictions of two cognate offenses will be sustained 'where the judge instructs the jury explicitly that they must find separate and distinct acts underlying the different charges'").
The judge's instructions and the verdict slips clearly delineated that the first count was based on the touching of the victim's vagina and the third was based on the touching of her inner thigh. The judge stated, "Each charge is an accusation of a different crime. You must consider each charge separately and return a separate verdict with guilty or not guilty for each charge." The judge instructed repeatedly, in varied formulations, that the jurors must unanimously find beyond a reasonable doubt that each specific offense occurred in the specific manner alleged.
The evidence supported the jury's conclusion that the first and third counts were based on distinct acts. The defendant's act of placing his hand under the victim's pants and putting his hand on her vagina, without her consent, satisfied the elements of indecent assault and battery. See Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991), quoting Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52, 59 (1982) ("the intentional, unjustified touching of private areas such as 'the breasts, abdomen, buttocks, thighs, and pubic area of a female' constitutes an indecent assault and battery"). The defendant then removed his hand from under the victim's clothes and, against her will, rubbed the inside of her upper thighs. This likewise satisfied the elements of the charge. While the time between the two incidents was short, the evidence permitted the jury to conclude that the acts were separate and distinct. See Maldonado, 429 Mass. at 509-510 (shooting victim twice in short period of time sufficiently distinct even when intent same); Commonwealth v. Mamay, 407 Mass. 412, 418 (1990) (successive penetration of rectum and vagina in short time frame sufficiently distinct acts to support two rape convictions). This is not a case where the first act was necessary to complete the second. Contrast Suero, 465 Mass. at 220-221 (touching victim to move aside her underwear necessary to complete act of rape).
Judgments affirmed.
By the Court (Vuono, Massing & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 20, 2019.