Opinion
13-P-1700
03-06-2015
COMMONWEALTH v. PAUL CARMICHAEL.
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
A grand jury indicted the defendant for various crimes relating to sexual assaults against two different women on different dates, but bearing some common characteristics. The two cases were tried separately pursuant to an order denying the Commonwealth's motion for joinder, but are before us as a single appeal. With respect to the first trial, concerning victim number one, the defendant contends: (1) the judge's instructions on oral rape and the lesser included offense of indecent assault and battery were erroneous; (2) the judge erred by imposing a time limit on the defendant's closing argument; and (3) the judge erred by refusing to ask voir dire questions proposed by the defendant. With respect to the second trial, involving victim number two, the defendant argues: (1) the judge's exclusion of evidence relating to the victim's mental health improperly restricted cross-examination on consent; (2) the judge improperly vouched for and bolstered the victim's credibility; and (3) the judge's failure to declare a mistrial when the jury reported a deadlock, and his decision to discharge a deliberating juror, constituted error that created a substantial risk of a miscarriage of justice. We affirm.
After the first trial, the jury convicted the defendant of aggravated rape in violation of G. L. c. 265, § 22; kidnapping in violation of G. L. c. 265, § 26 (subsequently dismissed); and assault and battery in violation of G. L. c. 265, § 13A, against victim number one. After the second trial, the jury convicted the defendant of rape in violation of G. L. c. 265, § 22; and assault and battery in violation of G. L. c. 265, § 13A, against victim number two.
1. First trial. a. Jury instructions. The defendant contends for the first time on appeal that the judge's instruction on the term "penetration" was so broad that it in effect directed a verdict for rape when the evidence was equally consistent with indecent assault and battery., The defendant's argument, however, depends on taking a single sentence of the instructions out of context and without regard to the remainder of the judge's instructions. When taken as a whole, see Commonwealth v. Arias, 84 Mass. App. Ct. 454, 465 (2013), the judge's instructions made abundantly clear that rape by unnatural intercourse required an "intrusion[] of a part of one person's body or other object into the genital or anal opening of another person's body." The judge also instructed that "penetration" of the genital or anal opening was required, or of the vulva or labia. Moreover, the judge's instructions were correct. The element of penetration required for a rape conviction may be "established by evidence that [the defendant] touched or came into contact with the victim's vagina, vulva, or labia." Commonwealth v. Donlan, 436 Mass. 329, 336 (2002).
The defendant focuses on the following part of the judge's instruction:
"To prove penetration it is sufficient if the Commonwealth proves that there was a touching by the defendant, whether it be by his hand or by his mouth, of the vulva or labia of the alleged victim. Penetration can be proven by circumstantial evidence. Proof of skin to skin contact between a person's mouth, lips, or tongue, and the genitalia of a person's body, whether by kissing, licking, or sucking may be sufficient proof to find sexual penetration."
The defendant concedes that the evidence was sufficient to prove rape by unnatural intercourse.
b. Time limit. The defendant argues that the judge improperly limited the length of trial counsel's closing argument. Rule 24(a)(2) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 895 (1979), allows one-half hour for closing argument, although the judge retains discretion to extend or reduce the amount of time. Here, after counsel had argued for more than thirty minutes, the judge asked him to wrap up his argument. Counsel was not cut short (as argued by the defendant); the question therefore is whether the trial judge abused his discretion in not allowing trial counsel to exceed the time limit provided in rule 24. There was no abuse of discretion. Trial counsel did not move for an extension of time either when the judge noted that trial counsel had exceeded the time limit or before his closing argument. The trial judge did not abuse his discretion by enforcing Mass.R.Crim.P. 24(a)(2), particularly in the absence of a request to extend the time. See Commonwealth v. Mahar, 6 Mass. App. Ct. 875, 875-876 (1978); Commonwealth v. Johnson, 42 Mass. App. Ct. 948, 951 (1997).
Rule 24(a)(2) states, "Counsel for each party shall be allowed . . . thirty minutes for argument; but before . . . the argument commences, the judge, on motion or sua sponte, may reasonably reduce or extend the time."
The defendant argues that the time limit on defense counsel's closing exacerbated the prosecutor's alleged misstatement of deoxyribonucleic acid (DNA) evidence in her closing argument. For the reasons set out here, the judge did not err by enforcing rule 24. In addition, the prosecutor did not misstate the DNA evidence.
c. Voir dire. In conducting individual voir dire, a "judge has substantial discretion in deciding what questions to ask, and need not put the specific questions proposed by the defendant." Commonwealth v. Pope, 392 Mass. 493, 505 (1984), citing Commonwealth v. Walker, 379 Mass. 297, 299-300 (1979). "Where questions on the issue of racial prejudice are placed before the prospective jurors in clear and understandable language with follow-up questions where needed, a judge satisfies the requirements of due process and G. L. c. 234, § 28, in conducting the individual voir dire." Ibid. The judge here probed the issue of racial bias during individual voir dire in a way that was sufficiently clear and understandable to put the issue before the prospective jurors. See ibid. The judge did not abuse his discretion by declining to ask the follow-up questions proposed by the defendant.
2. Second trial. a. Victim's mental health. The defendant argues that the judge erred by allowing the Commonwealth's motion in limine to exclude evidence of the victim's mental health. The defendant argues that he should have been permitted to cross-examine the victim on whether her mental health diagnoses (borderline personality disorder, bipolar disorder, and anorexia) increased her tendency to engage in risky, impulsive sexual behaviors.
"It is the burden of the proponent of . . . mental impairment related evidence to show the judge abused his discretion in excluding the question asked." Commonwealth v. Carrion, 407 Mass. 263, 274 (1990). The defendant has put forth nothing to suggest that any of the victim's alleged diagnoses were likely to, or did, cause her to engage in risky behavior. The two Internet articles on which the defendant relies speak only in very broad, general terms about two of the three mental conditions. Moreover, there is nothing to suggest that the victim's supposed diagnoses affected her memory, perception, or ability to articulate. See Commonwealth v. Caine, 366 Mass. 366, 369 (1974) ("[M]ental impairment . . . may be the subject of proper impeachment if it is shown that such factors affect the witness's capacity to perceive, remember, and articulate correctly"). Without more, the evidence was irrelevant and properly excluded. See id. at 370.
b. Vouching and bolstering. The defendant argues that the judge vouched for the victim's credibility by interrupting defense counsel's cross-examination of the victim. The argument is based on the fact that the judge, after several cross-examination questions assumed a fact not in evidence (that the victim had been asked certain questions before the grand jury and had answered them a certain way), clarified to the jury that a witness before the grand jury may only answer the questions she is posed. The judge did not err.
Judges may "direct and clarify the evidence," Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996), particularly where, as here, they do so to avoid misleading the jury -- in this case, to prevent them from receiving a misleading view of grand jury procedure. In addition, the judge's comments did not treat defense counsel either disparately or harshly, nor did they suggest "a disfavor of defense counsel or a bias against the defendant's case." Commonwealth v. Trung Chi Truong, 34 Mass. App. Ct. 668, 671 (1993).
The defendant further argues that the judge improperly bolstered the victim's credibility by allowing the Commonwealth to introduce prior consistent statements. On cross-examination of Sergeant Kevin McGoldrick, defense counsel elicited testimony about prior inconsistent statements contained in the officer's report. On redirect, the judge allowed the prosecutor to elicit prior consistent statements contained in the same report, including the victim's descriptions to McGoldrick of the physical violence and threats the defendant had used against her.
"[A] trial judge has considerable discretion over the scope of redirect examination." Commonwealth v. Garcia, 470 Mass. 24, 36 (2014), and cases cited. "As a general matter, a witness's prior statement that is consistent with his testimony at trial is inadmissible." Commonwealth v. McBrown, 72 Mass. App. Ct. 60, 63 (2008), quoting from Commonwealth v. Rivera, 430 Mass. 91, 99 (1999). Under the doctrine of verbal completeness, however, "when a party introduces a portion of a statement in evidence, other relevant parts of the same statement are admissible to 'clarify the context' of the admitted portion and thereby to 'prevent one side from "presenting a fragmented and misleading version of events to the finder of fact."'" Ibid., quoting from Commonwealth v. Tennison, 440 Mass. 553, 563 (2003). Because defense counsel elicited testimony on only those portions of McGoldrick's report suggesting that the victim had not described a forcible rape, the judge did not abuse his discretion by allowing the prosecutor to bring out the portions of the report indicating the opposite. See Commonwealth v. Vuthy Seng, 456 Mass. 490, 497-499 (2010).
c. Jury deliberations. The defendant first argues that the judge should have declared a mistrial after receiving two notes from the jury reporting deadlock. After the first note, the judge determined that the jury had not yet engaged in "due and thorough" deliberations. G. L. c. 234, § 34. This determination was within his discretion, see Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982), and the defendant did not request a mistrial. When the jury again reported an impasse the following day, the judge -- with the agreement of counsel gave the Tuey-Rodriguez charge, Commonwealth v. Tuey, 62 Mass. 1 (1851); Commonwealth v. Rodriguez, 364 Mass. 87 (1973). Again no mistrial was requested. The judge informed counsel that, if the jury reported deadlock again, he would declare a mistrial. The jury never again reported reaching an impasse, and there is nothing in the record to suggest that they reached a second deadlock after due and thorough deliberations. In these circumstances, the judge did not err by not declaring a mistrial sua sponte.
The defendant next argues that the judge erred by discharging a deliberating juror. "The decision to discharge a juror is entrusted to the sound discretion of the trial judge." Commonwealth v. Campbell, 51 Mass. App. Ct. 47 9, 4 83 (2001). "Although judges must exercise caution in discharging a deliberating juror, . . . the judge has discretion to decide . . . whether good cause, personal to the juror, exists for dismissal." Commonwealth v. Sanders, 451 Mass. 290, 306 (2008). The judge here complied with all procedural requirements. Commonwealth v. Garcia, 84 Mass. App. Ct. 760, 766-767 (2014). The judge was careful not to inquire into the deliberative process of the jury, see Commonwealth v. Kincaid, 444 Mass. 381, 391 (2005), and, after questioning, he had a firm basis upon which to conclude that good cause, personal to the juror, existed. Indeed, defense counsel acknowledged this was the case because the juror was moving to New York the following day. See Commonwealth v. Sanders, supra at 306-307 (judge did not abuse discretion by discharging juror with nonrefundable tickets for trip to Finland). Even assuming, arguendo, that the judge erred in discharging the juror, the defendant's trial counsel did not object, and the defendant has not made any showing of prejudice. See G. L. c. 234A, § 74; Commonwealth v. Robinson, 449 Mass. 1, 11 (2007).
Judgments affirmed.
By the Court (Cypher, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 6, 2015.