Opinion
13-P-1543
03-27-2015
COMMONWEALTH v. KEVIN M. DeCOSTA.
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
The defendant, Kevin M. DeCosta, appeals his convictions of seven counts of indecent assault and battery of a child under fourteen and one count of rape of a child with force. He contends that (1) ambiguity in the indictments created the possibility that he may have been convicted of crimes for which he was not indicted, and (2) the prosecutor's closing argument misstated the evidence and improperly appealed to the jury's sympathies. We affirm.
Discussion. Correlation between the indictments and convictions. The defendant contends that the indictments against him were ambiguous and that he may have been convicted of crimes for which he was not indicted, in violation of art. 12 of the Declaration of Rights of the Massachusetts Constitution. The defendant did not raise this issue at trial. Our review is therefore limited to whether any defect in the indictments created a substantial risk of a miscarriage of justice. See Commonwealth v. Fernandes, 430 Mass. 517, 521 n.13 (1999); Commonwealth v. Gonzalez, 22 Mass. App. Ct. 274, 283-284 (1986).
The trial judge denied the defendant's motion to supplement the record on appeal because the impounded Sexual Assault Intervention Network (SAIN) interview at issue was not part of the trial record. However, the interview is relevant to the defendant's argument on appeal concerning the proceedings before the grand jury. The panel exercises its discretion to treat the appeal of the denial of that motion in the trial court as a motion to the panel to supplement the appellate record under Mass.R.A.P. 8, as amended, 430 Mass. 1601 (1999), and allows the motion.
The Commonwealth argues that a challenge to the sufficiency of the indictment must be brought before trial, lest it be waived. See G. L. c. 277, § 47A; Mass.R.Crim.P. 13(c)(2), as appearing in 442 Mass. 1516 (2004). See also Commonwealth v. Hrycenko, 417 Mass. 309, 312 (1994) (defendant who does not object prior to trial to defect in indictment waives right to object unless cause is shown); Commonwealth v. Perry P., 418 Mass. 808, 817 n.5 (1994) ("A nonjurisdictional issue capable of determination without a trial of the general issue must be raised before trial by motion"); Commonwealth v. Lamont L., 438 Mass. 842, 845 (2003); Commonwealth v. Bell, 455 Mass. 408, 412 n.6 (2009) ("[A]ll objections to an indictment must be raised prior to trial, and failure to raise such an objection by motion shall waive such objection). The claim presented here was one that arguably could not have been brought in advance of trial, as the contention is that the proof at trial did not correspond to the grounds for the grand jury indictment. However, no posttrial motion was brought, and we therefore treat the claim as unpreserved.
A defendant may not be convicted of a crime for which he was not indicted. See Commonwealth v. Barbosa, 421 Mass 547, 550-551 & n.6 (1995). The defendant contends that the testimony before the grand jury contained a generalized description of digital and penile touching of the child's body, vagina, and anus, and that the ambiguity permitted the jury to convict the defendant of crimes for which he was not indicted. This contention is unpersuasive because, as is discussed below, the challenged indictments either alleged an ongoing course of conduct, or were sufficiently distinct. Moreover, the Commonwealth's proof at trial tracked the indictments, and the jury were properly instructed.
The defendant was tried on the following indictments returned by the grand jury: five counts of indecent assault and battery occurring on January 1, 2012; five counts of indecent assault and battery occurring on December 16, 2011; one count of assault with intent to rape a child occurring on December 16, 2011; one count of rape of a child by force occurring on December 16, 2011; one count of rape of a child by force occurring between December 16, 2011, and January 1, 2012; and two counts of indecent assault and battery on a child under fourteen occurring between December 16, 2011, and January 1, 2012. The jury convicted the defendant of five counts of indecent assault and battery occurring on January 1, 2012; one count of rape of a child by force occurring between December 16, 2011, and January 1, 2012; and two counts of indecent assault and battery on a child under fourteen occurring between December 16, 2011, and January 1, 2012, but acquitted the defendant of the seven remaining charges.
The grand jury heard the testimony of the investigating officer and listened to the child's SAIN interview. The defendant cared for the child while she was recovering from a tonsillectomy, at which time the events in question occurred. The evidence before the grand jury detailed a continuous course of indecent touchings over the two-week period between December 16, 2011, and January 1, 2012, and further conduct on both December 16, 2011, and January 1, 2012. See note 3, supra. The indictments tracked the corresponding statutory language, see Commonwealth v. Robertson, 408 Mass. 747, 749 (1990), but did not include the specific means, and in one instance gave a range of approximate dates.
With respect to sexual abuse charges involving minors, "[p]rosecutors . . . frequently allege . . . multiple acts of child sexual abuse by drafting numerous generic indictments or complaints differentiated only by the number assigned to the charge." Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 627 (2005). The indictments were not fatally defective for lack of specificity. The child testified at trial, providing a description of a course of events that tracked the indictments. She gave "reasonably detailed descriptions of various distinguishable forms of abuse but otherwise spoke largely in generalities. Her testimony, if believed, established that she had been the victim of a large number of criminal acts by the defendant." Commonwealth v. Kirkpatrick, 423 Mass. 436, 443 (1996). Although there were some differences, discussed below, between the child's SAIN interview and trial testimony, the trial testimony regarding the abuse that occurred between December 16 and January 1 described an ongoing course of conduct, enumerating substantially the same events, and overlapped in almost all respects.
"[A]n indictment must contain a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof." Commonwealth v. Pearson, 77 Mass. App. Ct. 95, 98 (2010) (quotation omitted). "[A]ll that is required is that the indictment . . . be sufficient to give the accused reasonable knowledge of the crime so as to enable him or her to prepare a defense." Commonwealth v. Erazo, supra, citing Commonwealth v. Hrycenko, supra at 313.
The defendant contends that the grand jury may have indicted him for one form of touching or penetration, while the jury at trial convicted him on another, because the child gave descriptions of various touchings, and both digital and penile penetration between December 16 and January 1. As applied to the indictments charging indecent assault and battery over the two week period of time, this argument overlooks the broad nature of the indictment, that is a "continuing offense occurring at several times and places over a period of time." Commonwealth v. Barbosa, 421 Mass. at 550-551 & n.6, citing G. L. c. 272, § 32. See Commonwealth v. Conefrey, 420 Mass. 508, 511 n.6 (1995) (indictment charging indecent assault and battery on a child under fourteen at "divers times and dates" did not prejudice defendant). With respect to those indictments covering the two-week time period, the defendant's reliance on Barbosa is therefore misplaced, as Barbosa (by contrast) dealt with an indictment which, on its face, referred to a single criminal act. Id. at 551.
Similarly, the convictions for the multiple indecent assault and batteries and for the rape were sufficiently tied to the indictments. As noted above, the indecent assault and battery indictments were identical, following the statutory form, but not specifying the manner of the assault. Similarly, the rape indictments did not specify the manner in which the rape occurred. The child described multiple indecent touchings and a vaginal rape. The Commonwealth, however, was not "required to elect which act of intercourse it was relying on to prove the offense of rape," or which of the indecent touchings constituted an indecent assault and battery. Commonwealth v. Keevan, 400 Mass. 557, 565 (1987). "'Where a crime can be committed in any one of several ways, an indictment properly charges its commission in all those ways . . . . Then the defendant should be convicted if it is proved that he committed the crime in any of those ways.' Commonwealth v. Dowe, 315 Mass. 217, 219-220 (1943)." Commonwealth v. Keevan, supra.
This is not to say that a jury may convict on diverse factual bases. "[W]here the Commonwealth brings a number of indictments against a defendant alleging child sexual abuse occurring at unspecified times or places, there is always the risk that jurors may vote to find the defendant guilty on a particular indictment, but with different incidents or conduct in mind. A reviewing court may uphold a conviction in such a case only where the record is clear that the jurors 'understood their duty unanimously to agree to a particular set of facts.' Commonwealth v. Conefrey, [supra at] 514 . . . ." Commonwealth v. LaCaprucia, 429 Mass. 440, 446-447 (1999). The trial judge instructed the jury to render each verdict unanimously. Upon receipt of a question from the jury, the trial judge provided further clarification, instructing the jury, "You've heard testimony about the different allegations about different ways in which the alleged victim was indecently touched. As to each indictment you have to be unanimously agreed as to the means by which this crime was committed, the manner in which those touchings occurred. You have to unanimously agree as to each indictment." The jury acquitted the defendant of seven counts, indicating that it heard and heeded the judge's instructions.
Finally, the defendant contends that the evidence before the grand jury was insufficient to support a rape indictment based on anal penetration, but that the child changed her testimony at trial and more clearly stated that this form of penetration had occurred. Thus, the defendant claims, the conviction for rape, if based on anal penetration, may be based on conduct for which he was not indicted.
The statement contained in the SAIN interview played for the grand jury was that the defendant's "thing touched" her butt, "not really in it, but . . . almost . . . it . . . hurt." At trial, the child stated that "his private spot" was touching her butt, moving back and forth, and it "hurt." The evidence before the grand jury was sufficient to support an indictment for anal rape. The child's statement that it "hurt" was sufficient to permit the grand jury to conclude that penetration had occurred. See Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 789 (1989).
The trial judge correctly instructed the jury that actual penetration was required for a conviction of natural or unnatural sexual intercourse, stating, "Either natural or unnatural intercourse is complete on penetration, no matter how slight, of a person's genital or anal opening. In addition to the vagina and female genital opening includes anterior parts known as the vulva and the labia. Penetration into the vagina itself is not required."
Given the statutory form of the indictments, the continuous course of conduct covered by the indictments, the overlapping evidence before the grand jury and trial jury, the specific unanimity instruction, and the careful attention the jury gave to each indictment resulting in an acquittal on several of the charges, we find no substantial risk that the defendant was convicted of crimes for which he was not indicted.
Prosecutor's closing argument. The defendant contends that various statements made by the prosecutor during her closing argument misstated the evidence and improperly appealed to the jury's sympathies. "Because the defendant did not object to the statements at trial, we review to determine whether any error created a substantial risk of a miscarriage of justice." Commonwealth v. Joyner, 467 Mass. 176, 188, (2014).
The defendant contends that the prosecutor misstated the evidence by exaggerating the number of indecent touchings and by stating that there was no dispute as to the touchings. The defendant also contends that the prosecutor referred to facts not in evidence when she referred to masturbation and ejaculation in her closing. We find no error. While the prosecutor's statements may have contained some exaggeration or technical inaccuracies, the defendant did admit to indecently touching the child during the course of a police interview, and the prosecutor's statements were generally supported by evidence on the record or reasonable inferences drawn therefrom. See Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978).
The defendant also contends that the prosecutor improperly appealed to juror sympathy when she said that the evidence showed that the defendant "used [the child] like a prostitute to satisfy his needs." Referring to the defendant's use of the child as a prostitute was better left unsaid. See generally Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987); Commonwealth v. Lewis, 465 Mass. 119, 129-130 (2013).
Leaving aside the question of error, a defendant's challenge to a specific part of a closing argument is analyzed 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 trial judge gave both preliminary instructions and final instructions that closing arguments are not evidence. See Commonwealth v. Farley, 432 Mass. 153, 157 (2000); Mass. G. Evid. § 1113(b)(1) (2015). Given these instructions and the quantum of evidence before the jury, we further conclude that even if the prosecutor's statement was error, it did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Kantrowitz, Green & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 27, 2015.