Opinion
15-P-1665
05-26-2017
COMMONWEALTH v. Keith GRACIALE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of rape by unnatural intercourse, in violation of G. L. c. 265, § 22(b ), and two counts of assault with intent to rape, in violation of G. L. c. 265, § 24. The defendant makes several challenges on appeal. First, he argues that the judge's jury instruction requires reversal because it constructively amended the grand jury's indictment on the rape charge. Second, the defendant alleges that there was a substantial risk that he was convicted of rape and assault with intent to rape for the same acts. Third, he argues that the prosecutor made several improper statements in closing argument. We affirm.
The defendant was also found guilty of assault and battery by means of a dangerous weapon causing serious bodily injury, in violation of G. L. c. 265, § 15A(c )(i). He does not challenge that conviction on appeal.
Background. "We summarize the facts in the light most favorable to the Commonwealth, reserving certain details for our discussion of the issues raised." Commonwealth v. Kelly, 470 Mass. 682, 684 (2015) (citation omitted).
On July 27, 2012, the victim, who was a prostitute, and her boy friend were sitting outside of a Dunkin' Donuts in Worcester when the defendant drove up to them in a black vehicle. The victim got into the passenger seat of the defendant's vehicle, and the defendant drove them to a parking lot. They agreed that the victim would perform oral sex for $30. After the defendant gave her the money, the defendant unzipped his pants and the victim began to perform oral sex on him. The defendant became aggressive and held the victim's head and pushed it down. The victim told him to "[s]top" and that she was "not comfortable with this." She continued to perform oral sex on him, but the defendant was unable to obtain an erection.
The defendant then asked the victim, how much she charged for sex. The victim told him $80, and the defendant threw a $20 bill at her. The victim stated, "No. That's not what I said. I told you that I charge $80." The defendant climbed over the console and got on top of the victim. With one of his hands, he grabbed her hands and put them over her head. The defendant pulled the victim's stockings down as well as his pants and tried to put his penis inside her vagina. He did not have an erection and was not able to put his penis inside the victim's vagina. The defendant then penetrated the victim's vagina with his fingers. The victim did not consent.
When the defendant and the victim got out of the vehicle, the defendant pushed the victim from her waist and shoved her on the front hood of the vehicle. He held her down and tried to put his penis inside her, but the defendant was unable to maintain an erection. The victim yelled at the defendant to stop and did not consent to these actions. The defendant then told the victim, "Just go," and the victim walked away.
Discussion. 1. Jury charge. The defendant argues that the judge's instructions require reversal because they constructively amended the grand jury's rape indictment. We disagree.
Here, the defendant was indicted by a grand jury for rape by "unnatural sexual intercourse," in violation of G. L. c. 265, § 22(b ). At trial, the judge properly instructed the jury that the rape statute states, in relevant part: "Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against [her] will, or compels such person to submit by threat of bodily injury, shall be punished." The judge then, in accordance with the model jury instructions on rape, explained that the "[f]irst element [that] the Commonwealth must prove beyond a reasonable doubt [is] that the defendant engaged in sexual intercourse, either natural or unnatural," and provided definitions of natural intercourse and unnatural intercourse. See Massachusetts Superior Court Criminal Practice Jury Instructions § 3.1 (Mass. Cont. Legal Educ. 2d ed. 2013) (model jury instructions). See also Commonwealth v. Whitehead, 379 Mass. 640, 650 n.8 (1980) ("[T]he crimes of forced sexual intercourse and forced unnatural sexual intercourse now fall within the single comprehensive statutory prohibition of rape set out in G. L. c. 265, § 22").
The judge defined natural and unnatural intercourse, in accordance with the model jury instructions, as follows:
"Natural intercourse ... consists of inserting the penis into the female sex organ. Unnatural sexual intercourse includes oral and anal intercourse, including fellatio and cunnilingus, and other intrusions of a part of a person's body or object into the genital or anal opening of another's body. Either natural or unnatural sexual intercourse is complete upon penetration, no matter how slight, of the person's genital or anal opening."
"The defendant did not object to the [judge's] instructions, so we review for any error that could have created a substantial risk of a miscarriage of justice." Commonwealth v. Than, 442 Mass. 748, 752 (2004). Despite the defendant's contentions, the judge's instructions did not constructively amend the grand jury's rape indictment. Unlike Commonwealth v. Ruidiaz, 65 Mass. App. Ct. 462, 464 (2006), the judge's instructions here did not provide an additional element to the offense, but instead, recited the language of the statute under which the defendant was indicted and followed the model jury instructions.
Further, the prosecutor during closing argument made clear that the Commonwealth was relying on a theory of unnatural sexual intercourse for the rape charge and explicitly stated that the defendant's actions of "put[ting] his fingers inside of her vagina ... is rape." The judge then gave the jury proper instructions on the definition of unnatural intercourse under the law, and the jury returned a special verdict slip indicating that the defendant was "guilty" of "unnatural rape," in violation of " [G. L.] c. 265, [§] 22(b )." See Than, supra, quoting from Commonwealth v. Richardson, 429 Mass. 182, 185 (1999) ("Our duty is to look at 'the charge as a whole to determine whether it fairly instructs the jury"'). Thus, the judge's instructions "did not materially change the work of the grand jury" where here, the grand jury indicted the defendant for committing rape by "unnatural sexual intercourse." Commonwealth v. Miranda, 441 Mass. 783, 790 (2004).
Therefore, there was no error and no substantial risk of a miscarriage of justice. See Commonwealth v. Cowans, 52 Mass. App. Ct. 811, 819-820 (2001) ( "In evaluating whether an error created a substantial risk of a miscarriage of justice, we determine whether the error 'materially influenced' the guilty verdict").
2. Duplicative convictions. The defendant argues that the judge erred in failing to sua sponte instruct the jury on separate and distinct acts. We disagree.
"The crime of assault with intent to rape is a lesser included offense of rape." Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 347 (1999). "Convictions of greater and lesser included offenses are allowed where they rest on separate and distinct acts." Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 529 (2011) (quotation omitted). In the absence of a separate and distinct act instruction, "the conviction of the lesser included offense must be vacated as duplicative, even in the absence of an objection, if there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act or series of acts." Kelly, 470 Mass. at 700. While the judge here did not provide a separate and distinct act instruction to the jury, there is no such "significant possibility" of a duplicative conviction. Ibid.
Since the defendant failed to object at trial, we consider whether the absence of a separate and distinct act instruction created a substantial risk of a miscarriage of justice. See id. at 699. "A substantial risk of a miscarriage of justice exists when we have a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Randolph, 438 Mass. 290, 297 (2002) (quotation omitted). "We review the evidence and the case as a whole." Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
Here, it is clear that the defendant's convictions of rape and two counts of assault and battery with intent to rape were supported by separate and distinct acts. At trial, the victim testified that the defendant attempted to put his penis inside her vagina, but was unable to do so, on two instances—once while she was inside the vehicle and once while she was on the hood of the vehicle. The victim also testified that while she was inside the vehicle, the defendant penetrated her vagina with his fingers. Then, during closing argument, the prosecutor "specifically point[ed] out which alleged acts corresponded to [the rape] charge[ ]" and which alleged acts supported each charge of assault with intent to rape. Kelly, supra at 702. Further, the judge properly instructed the jury that the elements of each crime were different, and that the jury must unanimously conclude that the Commonwealth proved each element beyond a reasonable doubt. See Commonwealth v. Medina, 81 Mass. App. Ct. 525, 531 (2012) ("[T]he judge's instructions ... clearly differentiated the two offenses"). At the close of deliberation, the jury returned separate verdict slips, convicting the defendant of two counts of assault with intent to rape and one count of rape by unnatural intercourse. Therefore, there was no substantial risk of a miscarriage of justice. See Randolph, supra ("Errors of this magnitude are extraordinary events and relief is seldom granted").
3. Closing argument. The defendant argues that the prosecutor made several improper statements during closing argument. We disagree.
We determine whether a prosecutor's statements made during closing argument require a new trial by considering: "(1) whether the defendant seasonably objected; (2) the judge's instructions to the jury; (3) the centrality of the error; (4) the jury's ability to sort out excessive claims by the Commonwealth; and (5) the strength of the Commonwealth's case." Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004). The defendant did not raise any objections to the prosecutor's closing argument, therefore we review under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011).
"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). "A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence." Commonwealth v. Cole, 473 Mass. 317, 333 (2015), quoting from Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).
First, despite the defendant's contentions, the prosecutor did not suggest to the jury that they could consider any prior bad acts of the defendant. Instead, the prosecutor's comments that the defendant "started getting rough with [the victim]" to help him maintain an erection were limited to the defendant's acts during the incident in question and were based on the evidence presented at trial and reasonable inferences that could be drawn therefrom. See Commonwealth v. Correia, 65 Mass. App. Ct. 27, 33 (2005). Thus, there was no error. See Commonwealth v. Burgess, 450 Mass. 422, 437 (2008), quoting from Commonwealth v. Corriveau, 396 Mass. 319, 336 (1985) ( "The Commonwealth may ‘attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusions the jury should draw from the evidence’ ").
The prosecutor stated during closing argument:
"When the defendant couldn't get an erection during that encounter, he got mad. He started to do things to help himself get an erection. He started to get rough with [the victim], started forcefully pushing her head down.... When that didn't work, he started getting rough with her again. Maybe that's what he's into. Maybe that's the kind of thing that he needs to do to maintain an erection."
We note that the prosecutor's use of the word "[m]aybe" (see note 4, supra ) arguably invites the jury to speculate, a function the jury should not take part in. However, even if we assume the prosecutor's statements were error, there is no substantial risk of a miscarriage of justice in this case for the reasons we discuss later in this opinion.
The defendant also argues that the prosecutor improperly commented on the defendant's decision not to testify and suggested what the defendant's testimony would have been had he taken the stand. To the contrary, the prosecutor's statements did not concern the defendant's decision not to testify. Instead, the prosecutor's comments were proper responses to, and addressed the weaknesses of, the arguments made in the defense counsel's closing statement regarding fingerprint evidence. See Commonwealth v. Rogers, 43 Mass. App. Ct. 782, 785 (1997) ("A prosecutor may properly respond to defense counsel's closing argument to the extent necessary to correct an erroneous impression created by defense counsel"). See also Commonwealth v. Siny Van Tran, 460 Mass. 535, 555 (2011), quoting from Commonwealth v. Thomas, 401 Mass. 109, 116 (1987) ("Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed").
Further, in light of the judge's jury instructions, the collateral nature of the issues, and the defendant's failure to object at trial, the prosecutor's remarks did not cause a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011). See also Commonwealth v. Torres, 437 Mass. 460, 466 (2002) ("The cumulative effect of all the errors in the context of the entire arguments and the case as a whole is considered in making this determination" [quotation omitted] ).
The defendant's failure to object to these remarks at trial indicated that the statements were not unfairly prejudicial considering the defendant objected to several other statements made by the prosecutor during her closing argument. See Commonwealth v. Enos, 26 Mass. App. Ct. 1006, 1007 (1988).
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Judgments affirmed.